MEMORANDUM OPINION AND ORDER

M. CHRISTINA ARMIJO, Chief District Judge.

THIS MATTER is before the Court on Defendant's Motion to Suppress Fruits of Illegal Search of Residence [Doc. 33] regarding a search that took place on November 7, 2016 and Defendant's Motion to Suppress Fruits of Illegal Search of Residence [Doc. 34] regarding a search that took place on August 3, 2016. The Court has considered the evidence presented at hearing, the parties' submissions, and the relevant law, and is otherwise fully informed. For the following reasons, the Court GRANTS Defendant's Motion to Suppress Fruits of Illegal Search of Residence [Doc. 33] and DENIES Defendant's Motion to Suppress Fruits of Illegal Search of Residence [Doc. 34]

FINDINGS OF FACT

August 3, 2016-93 Cielo Azul

DEPARTMENT OF JUSTICE FEDERAL BUREAU OF INVESTIGATION

CONSENT TO SEARCH

CONCLUSIONS OF LAW

August 3, 2017 Search—93 Cielo Azul

Consent to Search for Ms. Gutierrez

"A well-settled tenet of Fourth Amendment jurisprudence is that searches conducted without a warrant and probable cause are per se unreasonable, subject only to a few recognized exceptions." United States v. Gay, 774 F.2d 368, 376 (10th Cir. 1985).

United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011) (internal brackets, quotation marks and citations omitted). "The central question is whether a reasonable person would believe he was free to . . . disregard the officer's request." United States v. Silva-Arzeta, 602 F.3d 1208, 1214 (10th Cir. 2010). "The government must (1) proffer clear and positive testimony that consent was unequivocal and specific and freely and intelligently given, and (2) the officers must have used no implied or express duress or coercion." United States v. Sanchez, 608 F.3d 685, 690 (10th Cir. 2010) (internal quotation marks and citation omitted). "A signed consent form is indicative of a voluntary consent." Eidson v. Owens, 515 F.3d 1139, 1147 (10th Cir. 2008).

The Court must consider all of the circumstances surrounding the consent, including but not limited to:

Harrison, 639 F.3d at 1278 (internal quotation marks and citation omitted). In addition, "an officer's threat to obtain a warrant may invalidate the suspect's eventual consent if the officers lack the probable cause necessary for a search warrant." Eidson, 515 F.3d at 1146. In sum, the Court must "determine[] the factual circumstances surrounding the [consent], assess[] the psychological impact on the accused, and evaluate[] the legal significance of how the accused reacted." Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

As an initial matter, the Court concludes that Defendant consented to the agents' entry into his trailer on August 3, 2016 to search for Ms. Gutierrez. Defendant does not argue that this consent was coerced because Defendant, instead, argues that it did not happen. However, the Court credits the testimony of Agents Sainato and Salcido that Defendant consented to their search for Ms. Gutierrez and that they entered the residence and found Ms. Gutierrez. The Court also credits the testimony of Agent Acee that he was outside with Mr. Miramontes when other officers stated on the radio that they found Ms. Gutierrez, and, therefore, the Court finds that Agent Acee did not enter the residence through the back entrance without Defendant's consent. The Court therefore does not credit Defendant's testimony that an agent entered without his consent through his back entrance and found Ms. Gutierrez. Thus, the Court concludes that Defendant granted Agents permission to enter his trailer to search for Ms. Gutierrez. Thus, the remaining issue is whether Defendant's subsequent consent to the search of his home, as evidence by his signature on the consent-to-search form at 12:15, was coerced. In order to decide this issue, the Court considers Defendant's arguments under the case law as well as pertinent Tenth Circuit cases considering whether there was coercion.

Defendant primarily relies on Bumper v. North Carolina, 391 U.S. 543, 546 (1968) to argue that agents gave him the impression that they had the authority to search his home and that he had no right to resist the search. [Doc. 90, p. 6] In Bumper, the defendant's 66-year-old grandmother, Mrs. Leath, who lived "in a house located in a rural area at the end of an isolated mile-long dirt road," was home with "some young children" when four law enforcement officers came to her home. Id. Mrs. Leath was African American and the law enforcement officers were White. Id. An officer announced, "I have a search warrant to search your house," so Mrs. Leath allowed the officers to enter and conduct the search. Id. (internal quotation marks omitted). However, in court, the State relied not on a search warrant, but on Mrs. Leath's consent to justify the search. Mrs. Leath testified: "He said he was the law and had a search warrant to search the house, why I thought he could go ahead. I believed he had a search warrant. I took him at his word." Id. at 547 (internal quotation marks and citation omitted). The Court held that the government cannot meet its burden of demonstrating that consent is "freely and voluntarily given" where the government shows "no more than acquiescence to a claim of lawful authority." Id. at 548-49. The Court stated:

Id. at 550.

The Court concludes that Bumper is not analogous to the facts at hand. In this case, officers did not expressly or falsely assert that they had the authority to enter Defendant's home pursuant to a warrant. In Bumper, law enforcement officers expressly misled Mrs. Leath into believing they had a warrant, while such deception is absent in this case. See United States v. Thompson, 524 F.3d 1126, 1134 n.4 (10th Cir. 2008) (rejecting argument relying on Bumper where the officers did not make an assertion of lawful authority for the search). Further, the Court does not believe a reasonable person would interpret the officer's actions of entering to find Ms. Gutierrez and then entering several other times before asking for his consent to search as an implicit assertion that they had authority, other than Defendant's initial consent, to do so.

On the other hand, the facts in United States v. Cruz-Mendez, 467 F.3d 1260 (10th Cir. 2006) are much more similar to this case. In Cruz-Mendez, the Court was not persuaded by the argument that a woman, Ms. Armenta, was coerced into consenting to a search of her bedroom. Id. at 1267. Four officers conducted a "knock and talk," looking for a man reportedly seen at Ms. Armenta's address. Id. at 1262. The officers told Ms. Armenta it was cold outside and asked to come in, to which Ms. Armenta agreed. Id. at 1262-63. The officers asked to check out the bathroom for their safety and Ms. Armenta again agreed. Id. at 1263. The officers then asked for consent to search the full apartment, which she refused. Id. They asked for consent a couple more times, and stated they would go get a warrant, which she told them to do. Id. On their way out, they noticed the man's cell phone, with his name etched into it, sticking out of a man's jacket. Id. The woman then admitted that the man was in her bedroom and they could search it. Id. at 1264.

The Tenth Circuit upheld the district court's conclusions that neither the initial consent to the entry of the apartment nor the second consent to the search of the bedroom were coerced. Id. at 1265-67. The Court stated that the defendant's argument that "the presence of several armed officers, the length of time the officers were in the apartment, and the officers' statement that they would get a search warrant if Ms. Armenta did not consent" may "have persuaded a rational fact-finder that the consent was involuntary." Id. at 1267. Nonetheless, the Court refused to "set[] aside the district court's finding," concluding that the finding of consent was not clearly erroneous. Id. The Court relied on factors including that "the officers were not overly threatening or forceful," the length of time was reasonable, that the officers' threat to obtain a warrant did not result in Ms. Armenta's consent to search, and that Ms. Armenta instead consented when was caught in a lie. Id. at 1267-68; see also United States v. Melendrez-Moreno, 126 F. App'x 919, 923 (10th Cir. 2005) (unpublished opinion) ("[I]t is irrelevant whether consent was given before the officers crossed the threshold because it is uncontradicted that Defendant gave oral consent to search before the officers began inspection of his house.").

Applying Cruz-Mendez and Melendrez-Moreno to the case at hand, Defendant must point to some facts beyond the agents' presence in his home to establish coercion. Here, arguably such circumstances include that Defendant was outside, under escort, and not allowed to enter his home. In addition, several officers, including Agents Acee and Howard, had rifles and early in the encounter those rifles were raised and aimed, either at the house or at Defendant. Even when the rifles were not raised, they were prominently hanging in front of the Agents' bodies.

Nonetheless, in the view of the Court, the more significant facts are those relating to the level of intimidation or coercion displayed by the officers and the demonstrated "psychological impact" of the officers' conduct on Defendant. Schneckloth, 412 U.S. at 226. Everyone testified that, while Defendant was waiting outside of his home, the encounter between Agents and Defendant was cooperative, polite and even nearly friendly. Further, Defendant did not act meek, upset, frightened, confused or intimidated. Instead, he was adequately confident to stand his ground or assert his perceived rights pursuant to the Second Amendment. Even after he signed the consent-to-search form he joked with the officers regarding his slingshot, which does not seem consistent with a person whose will was recently overborne. Furthermore, the Court does not credit Defendant's claim that any officer threatened Defendant or made him a promise, such as not to be arrested, in exchange for his consent to search the property.

Turning to the moments directly leading up to Defendant's consent, Defendant testified that, when he was asked to sign the consent-to-search form, he told Agent Acee, "You've already searched anyway. What does it matter?" [Doc. 81, 45:7-13] However, Agent Acee testified that Defendant told him, "Well, you guys are already here anyway" and signed the form. [Doc. 75, 114:14-16] Though these statements are similar, they have significantly different implications when considering whether Defendant was coerced. Defendant's belief that officers were already searching his home is reasonable given the circumstances that six agents had entered his home over approximately a 35-minute period, he was kept out of his home, and officers were still in his home with Ms. Gutierrez at the time Agents obtained Defendant's signature on the consent-to-search form.

However, even if the Court were to credit Defendant's testimony as to his statement to Agent Acee, given the advisements on the consent-to-search form, Defendant's act of signing the form is a strong indication that Defendant's consent was voluntary. The consent form expressly states "I have been advised of my right to refuse consent" and "I give this permission voluntarily." [GEX 2] The Court weighs Defendant's evidence of coercion, including his testimony that guns were pointed at him, that he was not allowed to enter his home for a cigarette, and that he was under escort and observation, against the strength and clarity of the advisements in the consent-to-search form. Eidson, 515 F.3d 1147 (weighing the fact that individuals signed a consent to search form against their evidence of coercion and stating that "[a] signed consent form is indicative of a voluntary consent"). This case is similar to United States v. Rodriguez-Garcia, 983 F.2d 1563, 1567-68 (10th Cir. 1993), in which our Tenth Circuit rejected the argument that a defendant was coerced to sign consent-to-search forms. In Rodriguez-Garcia, before the defendant signed the forms, he had been handcuffed and detained in the back of a DEA vehicle. Id. at 1566. Armed agents were present at his apartment, and he may have been pushed into the snow while being arrested. Id. at 1567. Nonetheless, noting that there was no evidence that he was abused, frightened, otherwise threatened or forced into signing the consent forms, the Court concluded that the agents did not coerce the defendant to consent to the search. Id. at 1567-68. Here, any potential evidence of coercion or a coercive atmosphere is not as strong as that in Rodriguez-Garcia. And, unlike the facts in Rodriguez-Garcia, officers here did not handcuff Defendant or use physical force.

Finally, considering at additional factors, such as those in Harrison, though this is a close call, the Court concludes that the Government has demonstrated that Defendant was not coerced into consenting to the search of his residence. No one was physically mistreated, there was no use of violence against Defendant, no "threats, promises, inducements, deception, [or] trickery," and little if any use of an aggressive tone. Harrison, 639 F.3d at 1278. Defendant was in good physical and mental condition and understood what was happening on August 3, 2016. Though there were several officers on the scene who were displaying their weapons, Defendant did not exhibit fear or intimidation. Instead, the encounter was relaxed, nearly friendly, and at times jovial. Moreover, Defendant demonstrated confidence and a lack of fear in asserting his beliefs with regard to the Second Amendment. At all times Defendant displayed a calm yet assertive nature, suggesting that his will was not overborne. In sum, the Court concludes that Defendant was not coerced into signing the consent-to-search form. Given these facts, the Court also concludes that the advisements on the consent-to-search form were sufficient to overcome any perceived coercive atmosphere or effect of the circumstances during the encounter.

Inevitable Discovery Doctrine

The Government argues that "[b]ased on the discovery of prohibited firearms in Defendant's closet pursuant to Gutierrez's arrest, . . . agents would have sought and received a search warrant to search for evidence of crime seen in plain view during the search for Gutierrez." [Doc. 41, p. 9] Because the issue of consent is a close call, the Court considers the Government's argument, and is persuaded by it. The Court concludes that, in the alternative to the warrantless search falling into the exception for consensual searches, officers had sufficient probable cause to obtain a search warrant and would have done so in this case making the search lawful under the inevitable discovery doctrine.

"The government has the burden of proving by a preponderance of the evidence that the evidence in question would have been discovered in the absence of the Fourth Amendment violation." United States v. Souza, 223 F.3d 1197, 1203 (10th Cir. 2000). "Where the theory of inevitable discovery is that a warrant would have been obtained but for the illegal search, the district court must determine how likely it is that a warrant would have been issued and that the evidence would have been found pursuant to the warrant." United States v. Christy, 739 F.3d 534, 541 (10th Cir. 2014) (internal quotation marks and citation omitted). In Souza, our Tenth Circuit expanded the inevitable discovery doctrine from applying only when "an independent investigation inevitably would have led to discovery of the evidence" to also include the circumstance in which a warrant would have eventually been issued based on evidence already lawfully discovered. Souza, 223 F.3d at 1203. The Court stated: "[W]hat makes a discovery `inevitable' is not probable cause alone . . . but probable cause plus a chain of events that would have led to a warrant (or another justification) independent of the search." Id. at 1204 (internal quotation marks and citation omitted). The Court set forth four factors to consider in deciding whether evidence would have been inevitably discovered:

Id. Subsequently, our Tenth Circuit clarified that the likelihood that the warrant would have been issued is the "ultimate question" and that there is no prerequisite that officers take preliminary steps to obtain a warrant before the search. Christy, 739 F.3d at 542-43.

Applying this law to the case at hand, given the lawfulness of the initial entry to search for Ms. Gutierrez, officers had already discovered the rifles and would have found the ammunition and methamphetamine through a search supported by a warrant. Here, while retrieving Ms. Gutierrez, Agents observed two firearms, and, during the course of the encounter, queried whether Defendant had prior felony convictions. In addition, Defendant was wearing an empty holster when he answered the door. These facts established the probable cause necessary for officers to obtain a warrant to search Defendant's home on suspicion that Defendant was a felon in possession of firearms. While Agents had not begun the process to obtain a search warrant, nor was one ever sought or issued, applying Christy, 739 F.3d at 542-43, the primary inquiry is the likelihood that a warrant would be issued, which is dependent on the strength of the showing of probable cause. In this case, the strength of the showing of probably cause is "overwhelming," Souza, 223 F.3d at 1205, and not reasonably disputable. Officers would have been able to obtain a search warrant. As such, the inevitable discovery doctrine exception to the exclusionary rule applies, making the evidence discovered in Defendant's home on August 3, 2016 admissible.

Accordingly, the Court DENIES Defendant's Motion to Suppress Fruits of Illegal Search of Residence [Doc. 43]

November 7, 2016 Search—93 Cielo Azul

Defendant also moves to suppress evidence found during a search of his residence on November 7, 2017.2 [Doc. 33] The United States relies solely on the protective sweep exception to the warrant requirement to justify the November 7, 2016 search of Defendant's property. [Doc. 39, p. 4] Prior to November 7, 2016, The United States obtained an arrest warrant for Mr. Warrick (but not a search warrant) based on the evidence observed at Mr. Warrick's residence on August 3, 2016. [Doc. 39-1, p. 2] On November 7, 2016, agents executed the arrest warrant and found Defendant and Mr. Le on the back side of Defendant's property. Agents placed both men in handcuffs and detained them outside of the residence. No one consented to a search of the residence. [Doc. 75, 120:19-25] Agent Acee nonetheless entered to home to conduct a "protective sweep." [Doc. 75, 125:1-9]

In Buie, 494 U.S. at 334-36, our United States Supreme Court sanctioned and defined protective sweeps by holding as follows:

Id. (footnotes omitted). The Government correctly argues that there are two different tests articulated in Buie: 1) for the areas immediately adjoining the place of the arrest, no reasonable suspicion is required to conduct a protective sweep; and 2) beyond the immediately adjoining areas, a protective sweep is justified only where officers have a reasonable suspicion that someone or something within the broader area poses a danger to those on the arrest scene. Id. at 334; United States v. Maddox, 388 F.3d 1356, 1362 (10th Cir. 2004). [Doc. 39, p. 7] Only the second type of sweep, which must be supported by reasonable suspicion that "the area to be swept harbors an individual posing a danger," is at issue in this case. Buie, 494 U.S. at 334.

Protective sweeps "are only permitted incident to an arrest." United States v. Torres-Castro, 470 F.3d 992, 996 (10th Cir. 2006). Where an arrest occurs outside of private residential building (including a home, garage, barn, and hotel room), there must be some articulable facts to support a belief that someone posing a danger is in the residence. See Fishbein v. City of Glenwood Springs, Colo., 469 F.3d 957, 962-63 (10th Cir. 2006) (stating that a protective sweep is permissible where "police relied on various bits of circumstantial evidence to inform their judgment that a hostile third party might be present" but not permissible where "officers had no reason to believe there was any hostile person—or any person at all—inside the house" (emphasis in original)); see also United State v. Hogan, 38 F.3d 1148, 1150 (10th Cir. 1994) (rejecting the argument that a belief that a murder suspect had an accomplice was sufficient to justify a protective sweep where there "was no indication that the officers were in danger from a hidden accomplice" at time of search and also concluding that a suspicion that "a child may have been inside in no way relates to officer safety, the goal of a protective sweep"); United States v. Owens, 782 F.2d 146, 151 (10th Cir. 1986) (concluding that there was no threat to officers' safety where they had "retreated to a safe position" away from a motel room after arresting the defendant).

In United States v. Carter, 360 F.3d 1235, 1242-43 (10th Cir. 2004), our Tenth Circuit held that the protective sweep exception to the requirement for a search warrant was not met where police arrested the suspect outside, and where there was no reason to believe that anyone else remained inside the garage or the backyard which were searched. The Court reasoned:

Carter, 360 F.3d at 1242. In addition, given that the two persons in the garage came out when they saw officers in their driveway, the Court stated that "the officers had no reason to believe a third person had stayed behind" or posed a threat. Id. Moreover, the Court stated: "Of course, there could always be a dangerous person concealed within a structure. But that in itself cannot justify a protective sweep, unless such sweeps are simply to be permitted as a matter of course, a result hardly indicated by the Supreme Court in Buie." Id. at 1242-43. The Court reached similar results in Hogan, 38 F.3d at 1150 (concluding that, where defendant was arrested outside his home and officers conducted protective sweep after the arrest, the officers' belief that the defendant had an accomplice when he purportedly committed a murder over a month earlier was insufficient reason to conclude that "officers were in danger from a hidden accomplice on" the day of the search) and United States v. Roof, 103 F. App'x 652, 657-58 (10th Cir. 2004) (unpublished decision) (holding that a protective sweep was not supported where officers repeatedly relied on the justification that they did not know whether anyone else was present in a home or a garage; stating "[a] mere absence of information about whether anyone remains in a home does not justify a protective sweep" (emphasis in original)).

On the other hand, protective sweeps have been upheld where officers have some reason to believe a person is in that home and they are aware that firearms or a dangerous person may be present. United States v. Cavely, 318 F.3d 987, 996 (10th Cir. 2003) (holding that reasonable suspicion for a protective sweep existed where officers were told there was someone inside a residence, they suspected the residence was used to manufacture methamphetamine, and they knew that firearms had been found in the residence during a prior search); United States v. Denson, 775 F.3d 1214, 1219 (10th Cir. 2014) (holding that reasonable suspicion for a protective sweep existed where officers knew that their arrestee was a gang member with violent associates and that another person lived in the home who was wanted on an outstanding warrant); Fishbein, 469 F.3d at 962-63 (holding that reasonable suspicion existed for a protective sweep where officers were told a teenage boy was in a residence and they knew that firearms were in the residence); see United States v. Nelson, No. 16-3292, 2017 WL 3526570, *3 (10th Cir. August 17, 2017) (stating that, had officers been told that someone was present in the house before they conducted a protective sweep such information would be "precisely the sort of specific, articulable information that might have permitted" the protective sweep); see also United States v. Tabor, 722 F.2d 596, 598-99 (10th Cir. 1983) (holding that reasonable suspicion existed for a protective sweep where agents heard a noise coming from a barn and had knowledge that the day of the search the arrestee had falsely denied the presence of weapons in his home).

Finally, our Tenth Circuit, in addition to this Court, have clearly and explicitly held that protective searches are not allowed as a "blanket safety rule" or standard procedure anytime officers make an arrest. United States v. Hauk, 412 F.3d 1179, 1186 (10th Cir. 2005) ("The Fourth Amendment does not sanction automatic searches of an arrestee's home, nor does the fact-intensive question of reasonable suspicion accommodate a policy of automatic protective sweeps."); Nelson, 2017 WL 3526570, *5 n.5 (stating that, "if . . . the United States Marshals Service for the District of Kansas maintains a practice that systemically ignores the framework set forth in Buie, such a practice would be troubling"); see also United States v. Benavidez, 16-CR-1732 MCA, Doc. 40 *12-13 (D.N.M. December 19, 2016) (holding, where Government argued that the "officer's protective sweep of the defendant's apartment was part of their standard police practice on domestic violence calls based on protection of others," that such a policy clearly violates the Fourth Amendment).

In arguing that Agents had reasonable suspicion that there was someone in the residence that posed a danger to the officers, the Government relies on the following facts:

[Doc. 89, pp. 12-15 (Record citations and footnotes omitted.)]

The Court concludes that most of these facts are not specific, articulable facts indicating that there was someone potentially dangerous to the agents inside Defendant's trailer, as required by Buie and its progeny. Facts which simply have no bearing on the relevant question of whether someone was inside the property and that someone posed a threat to the officers include: (1) the number of officers compared to the number of citizens and the size of the property; (2) the presence of Mr. Le outside; (3) that Mr. Le had tattoos which indicated he may have been in a prison gang; (5) the presence of two new RVs, which, alone, supports more of a hunch than a reasonable inference that additional people would be on the property and particularly inside Defendant's trailer; (6) the presence of Ms. Gutierrez' RV, even though she could not have been the person who took it there; (7) the presence of more clutter in the yard; (11) the open door, even given that Agent Acee had been shot at from an open door before; (12) that Ms. Gutierrez, a fugitive, had been inside the home on August 3, 2016; (13) the remoteness of Defendant's property; and (14) that Defendant was upset to see agents on November 7th. Regardless of how upset Defendant was, and regardless of how threatening Mr. Le appeared, both men were handcuffed and guarded by armed agents at the time Agent Acee searched Defendant's trailer. The other factors listed above do not support an inference that someone would be present inside Defendant's home or that person would present a threat to officers. See Nelson, 2017 WL 3526570, *3 (stating that when officers have "no knowledge regarding the potential presence of a third person, then the government is per se unable to make the affirmative showing that Buie requires").

However, four facts and their combined implications are relevant to the Buie test. First, the Government relies on the fact that they believed that Mr. Miramontes lived at the residence and that he was "unaccounted for" at the time Agent Acee performed the protective sweep. [Doc. 89, ¶ 45(4)] A reasonable officer could assume that Mr. Miramontes was inside Defendant's trailer, given that he lived in a room therein three months earlier. Second, agents had reason to believe that Defendant would illegally possess firearms given his stance on the Second Amendment — which the Court concludes was a reasonable inference. [Doc. 89, ¶ 45(8)] Third, "Agent Acee was concerned that an unknown individual harbored at the residence may possess the handgun that would have fit in Defendant's gun holster" because officers did not find a handgun on their prior search. [Doc. 89, ¶ 45(10)] And fourth and finally, as Agent Acee summed up the entire situation, "Defendant's property appeared to be a methamphetamine `flop house, with syringes and pipes everywhere,' . . . `we have meth users and we have gun nuts and we have outbuildings and cars everywhere, . . . and I'm worried that we need to get control of this scene.'" [Doc. 89, ¶ 45(9)]

The Court is not persuaded that these facts establish a reasonable suspicion that someone in the home presented a danger to the officers. Particularly, the Buie requirement lacking in this case is any specific articulable fact warranting a rational belief that Mr. Miramontes was dangerous to the officers. It is noteworthy that, unlike in many protective sweep scenarios, here officers had a prior encounter with Defendant and Mr. Miramontes. During this prior encounter, Agent Acee testified, without contradiction, that Mr. Miramontes was friendly, polite, cooperative, and did not present a threat to the officers. [Doc. 75, 99:12 to 100:8, 102:23-25] This is true despite the fact that there were weapons in the residence during the first encounter and despite the fact that the home, at that time, appeared to be a "meth flop house." [Doc. 75, 102:23-25] Thus, even if a reasonable inference could be made that Mr. Miramontes was a methamphetamine user (though there was no testimony as much), the evidence does not establish that he was dangerous. Nor was any testimony offered establishing that Mr. Miramontes was a felon or had a violent history. Further, in this case there was no testimony that Mr. Miramontes himself had any weapons, or that any other firearms were found in the rest of the residence, despite the full search of the residence, including the search of Mr. Miramontes' room and the common areas. There was no testimony that Mr. Miramontes had access to Defendant's room, where the only firearms were found. Further, while the Government argues that Agent Acee testified that he was concerned about the unfound firearm, he actually only stated as much in response to a leading question from the Government:

[Doc. 75, 135:23 to 136:1] The Court is not persuaded that this post hoc justification was considered by Agent Acee at the time he decided to conduct the protective sweep. In sum, considering the totality of the circumstances of this case, the evidence of Mr. Warwick's prior gun possession and the general appearance of the residence as a "meth flop house" is insufficient to warrant a belief that Mr. Miramontes posed a danger to the officers on scene. See Hogan, 38 F.3d at 1150 ("The fact that the officers had evidence that an accomplice was involved in the murder does not equate to evidence that some person would be hiding out in Hogan's house a month after the event and that officer safety was threatened"); Carter, 360 F.3d at 1242 (holding that "the government has pointed to no specific, articulable facts suggesting that the backyard or garage harbored anyone who posed a danger to them").

Arguably, the open door of the residence could invite an inference that, if someone was inside, and that someone was dangerous, that someone would be more immediately able to launch an attack at officers on the scene. Again, however, what is lacking is reason to believe that someone in the home was dangerous. Furthermore, the arrest scene was more than 30 feet from the front door and, from both GEX 48 and DEX 1 it appears that the arrest occurred at a location in which there would have been a sharp angle from inside the open door to the area at which the arrest took place, making it impossible to hide far in the recesses of the trailer and shoot at the officers. Moreover, the open door also potentially contributed to officer safety. One or two officers could have stood guard at the open door of the residence to ensure officer safety, which would have struck reasonable balance between ensuring police safety and respecting the Fourth Amendment rights to be free from unreasonable, warrantless searches.

The Court must also address Agent Sainato's testimony that "a protective sweep . . . is customary in an arrest scenario." [GEX 49] Any policy by which officers enter a residence after a person is arrested outside that residence and conduct a search therein as a matter of course runs afoul of the Fourth Amendment. Hauk, 412 F.3d at 1186. The Court strongly advises the Government to ensure that its officers are properly trained on the limits of a protective sweep absent reasonable suspicion, which must be kept solely to "closets and other spaces immediately adjoining the place of arrest from which an attack could immediately be launched." Buie, 494 U.S. at 334-36. Reasonable suspicion is required for anything beyond those immediate areas. Id.

Accordingly, for the foregoing reasons, Defendant's Motion to Suppress Fruits of Illegal Search of Residence [Doc. 33] is GRANTED.

CONCLUSION

For the foregoing reasons, the Court HEREBY DENIES Defendant's Motion to Suppress Fruits of Illegal Search of Residence [Doc. 34] and the Court further HEREBY GRANTS Defendant's Motion to Suppress Fruits of Illegal Search of Residence [Doc. 33].

SO ORDERED.