Groves v. State

Groves v. State, No. 2146 of the 2017 Term, Opinion by Moylan J.

THE PROTECTIVE SWEEP INCIDENT TO ARREST: A HOMEGROWN

PRODUCT – A. A NATIONAL PHENOMENON WITH A LOCAL PROVENANCE

– B. THE PROTECTIVE SWEEP AS A “PRIOR VALID INTRUSION” – C. THE

MEASURE OF CERTAINTY – D. THE MEASURE OF JUSTIFICATION IS

REASONABLE SUSPICION – E. THE PURPOSE OF A SWEEP IS OFFICER

PROTECTION – F. THE DEFINITION OF A PROTECTIVE SWEEP – G. THE

GEOGRAPHY OF A PROTECTIVE SWEEP – H. THE SCOPE LIMITATIONS OF

A PROTECTIVE SWEEP – I. REASONABLE SUSPICION IS OBJECTIVELY

ASSESSED – J. THE TRIGGERING JUSTIFICATION NEED NOT END AT THE

DOORSTEP – THE PROTECTIVE SWEEP IN THIS CASE
Circuit Court for Washington County
Case No. 21-K-17-053429
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2146

September Term, 2017
______________________________________

CURTIS LEE GROVES

v.

STATE OF MARYLAND
______________________________________

Reed,
Friedman,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Moylan, J.
______________________________________

Filed: December 21, 2018
Our primary focus on this appeal is on the protective sweep as an incident of lawful

arrest. The appeal is a primer of Fourth Amendment law because of the plenitude of issues

it raises. On December 14, 2017, the appellant, Curtis Groves, entered conditional guilty

pleas to 1) the possession of heroin with intent to distribute and 2) the possession of a

firearm in a drug trafficking crime before Judge Mark K. Boyer in the Circuit Court for

Washington County. On the two convictions, the appellant was sentenced to an aggregate

term of 32 years of incarceration with all but 26 years suspended. The guilty pleas were

conditioned upon the appellant’s reserving his right to appeal from an adverse ruling at a

pre-trial suppression hearing. Maryland Rule of Procedure 4–242(d)(2). Our chronology in

this case looks backward from that point.

The Suppression Hearing

Looking backward to the suppression hearing, the appellant moved pre-trial to

suppress various contraband and instrumentalities of crime (to wit, drugs, a quantity of

ammunition, and a handgun) seized by the police during a warranted search on January 25,

2017, of 43 Charles Street in Hagerstown, a residence shared by the appellant with his

girlfriend, Sidrease Morgan. A hearing was conducted on the motion on November 29,

2017, before Judge Boyer. In an order of December 8, 2017, Judge Boyer denied the motion

to suppress.

The key issue before the suppression hearing was the constitutionality of the search

and seizure warrant for 43 Charles Street issued by Judge Daniel Dwyer on January 25,

2017. There was no question but that the detailed, eight-page warrant application submitted

by Agent Tammy Jurado of the Washington County Narcotics Task Force facially
furnished abundant probable cause for the issuance of the warrant. The nub of the

appellant’s contention, however, was that the police had made an earlier entry into 43

Charles Street on that very day, to wit, when they first arrested the appellant, and had at

that time made a number of visual observations which, in turn, became the essential core

of the warrant application. The warrant application recited:

In the process of arresting Groves, Corporal Will Blount of the Prince
George’s County Police Department and assigned to the Capital Area
Regional Fugitive Task Force, observed to the right of the basement stairs a
long box. Between the box and the basement wall he observed a brick shaped
item lying on the dirt floor, which was wrapped in a layer of white paper and
then in clear plastic.

The brick shaped item appeared pliable, and based on Agent Jurado’s
knowledge, training and experience as a police officer, large amounts of
controlled dangerous substances are often packaged in a similar manner for
concealment, and prior to being broken down into smaller amounts for the
purpose of distribution or dispensing.

Deputy Chris Carson, also assigned to the Capital Area Regional
Fugitive Task Force, observed in the basement an artificial Christmas tree
box. Deputy Carson observed what is consistent with the black grip of a
firearm protruding from the box. Deputy Carson also told Agent Jurado the
basement wall is brick and one of the bricks had been removed and/or was
missing. In the space where the brick should have been Deputy Carson
observed a box of ammunition.

Deputy Carson further advised that while clearing the residence to
ensure there was no one else inside, he observed lying on the bedroom floor
of a second floor bedroom what appeared to be a black semi-automatic
handgun. This black semi-automatic handgun was lying next to the bed.

(Emphasis supplied).

The appellant’s argument is that the unreasonable extent and duration of that earlier

intrusion in the course of which the police made those observations violated the Fourth

Amendment. The argument followed that if those unconstitutional observations, as fruit of

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the poisonous tree, were excised from the warrant application, what then remained would

not have been enough to justify the issuance of the warrant. With respect to that conditional

quantitative assessment, the appellant is on solid ground. With respect to the

constitutionality of the initial intrusion, however, we must look backward to the facts of

that earlier event.

The Protective Sweep Incident To Arrest:
A Homegrown Product

A. A National Phenomenon With A Local Provenance

Before turning to the application of protective sweep law to the specific facts of this

case, however, it behooves us to examine protective sweep law in the abstract. It also is

gratifying to remember that this now universally recognized constitutional principle grew

from strong native roots. It was the 1987 opinion of Judge Theodore Bloom for the Court

of Special Appeals of Maryland that found expression in the Supreme Court’s first

recognition of the protective sweep phenomenon in terms essentially indistinguishable

from those first enunciated by Judge Bloom.

In Buie v. State, 72 Md. App. 562, 531 A.2d 1290 (1987), seven officers went to

Buie’s home in Prince George’s County with an arrest warrant and arrested him for armed

robbery. One officer called down basement stairs for everyone in the basement to come up

with hands raised. After some discernible delay, Buie came up and was immediately

arrested, handcuffed, and searched. As Buie was being led from the house, another officer

went down into the basement “in case there was someone around.” Id. at 566.

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B. The Protective Sweep As A “Prior Valid Intrusion”

What the officer found was a red jogging suit matching a description of the clothing

worn by the armed robber. Pursuant to the Plain View Doctrine, it was seized and admitted

into evidence. If the police entrance into the basement to conduct the protective sweep was

reasonable, there was no disputing the fact that the warrantless seizure of the red jogging

suit was also reasonable. The sweep into the basement was the Plain View Doctrine’s “prior

valid intrusion.” The police had probable cause to believe that the red jogging suit, spotted

in plain view, had been worn by the robber and was evidence of crime. Coolidge v. New

Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Arizona v. Hicks, 480

U.S. 321, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987).

The Task Force did not immediately or warrantlessly seize the contraband or other

evidence which they observed in the course of the protective sweep. They simply included

these observations in their application for a search warrant. In the meantime they placed a

guard on 43 Charles Street, effectively seizing the property while they obtained the warrant.

Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001); Segura v.

United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).

C. The Measure Of Certainty

The key issue before this Court was one of first impression.

Maryland has not previously determined whether, following the execution of
an arrest warrant, officers may make a cursory inspection of the premises
where the arrest took place to search for other known suspects[.]

72 Md. App. at 572 (emphasis supplied).

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Holding that only reasonable suspicion and not probable cause is the measure of

certainty that must be satisfied, Judge Bloom concluded:

[I]f there is reason to believe that the arrestee had accomplices who are still
at large, something less than probable cause—reasonable suspicion—should
be sufficient to justify a limited additional intrusion to investigate
the possibility of their presence.

72 Md. App. at 576 (some emphasis supplied).

A splintered Court of Appeals, by a four-to-three vote, reversed the decision of this

Court and held that probable cause rather than reasonable suspicion was the appropriate

measure of certainty required. Buie v. State, 314 Md. 151, 550 A.2d 79 (1988). The only

difference between the conclusion of the Court of Appeals and that of the Court of Special

Appeals was with respect to the measure of certainty—probable cause versus reasonable

suspicion—required to justify a protective sweep. The Supreme Court granted certiorari

and reversed the Court of Appeals’s decision. Maryland v. Buie, 494 U.S. 325, 110 S. Ct.

1093, 108 L. Ed. 2d 276 (1990).

D. The Measure Of Justification Is Reasonable Suspicion

That measurement became, in turn, the primary focus of the Supreme Court.

In this case we must decide what level of justification is required by the
Fourth and Fourteenth Amendments before police officers, while effecting
the arrest of a suspect in his home pursuant to an arrest warrant, may conduct
a warrantless protective sweep of all or part of the premises.

494 U.S. at 327 (emphasis supplied).

After analogizing the question for decision to that before the Court in Terry v.

Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and Michigan v. Long, 463 U.S.

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1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), the Supreme Court articulated both the

standard and the test:

We conclude that by requiring a protective sweep to be justified by probable
cause to believe that a serious and demonstrable potentiality for danger
existed, the Court of Appeals of Maryland applied an unnecessarily strict
Fourth Amendment standard. The Fourth Amendment permits a properly
limited protective sweep in conjunction with an in-home arrest when the
searching officer possesses a reasonable belief based on specific and
articulable facts that the area to be swept harbors an individual posing a
danger to those on the arrest scene. We therefore vacate the judgment below
and remand this case to the Court of Appeals of Maryland for further
proceedings not inconsistent with this opinion.

494 U.S. at 336–37 (emphasis supplied).

E. The Purpose Of A Sweep Is Officer Protection

The analogy to Terry v. Ohio and to Michigan v. Long is the very core of the

raison d’être for the protective sweep in Buie. All three cases serve precisely the same

purpose—officer safety. They do so in the respective contexts of 1) a Terry stop on the

street, 2) a Terry stop on the open road, and 3) an arrest in a home. That is why, of course,

they share precisely the same triggering quantitative authorization—Terry reasonable

suspicion. The protective sweep, therefore, does not in any way look for evidence of crime.

Its exclusive purpose is to look for potentially armed and dangerous persons, who might

harm the officers.

F. The Definition Of A Protective Sweep

The Supreme Court’s Buie opinion, at its outset, gave us an effective “nutshell”

definition of the protective sweep.

A “protective sweep” is a quick and limited search of premises,
incident to an arrest and conducted to protect the safety of police officers or

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others. It is narrowly confined to a cursory visual inspection of those places
in which a person might be hiding.

494 U.S. at 327.

G. The Geography Of A Protective Sweep

The geography of the protective sweep is interesting. Security measures in a very

limited area are automatically available as an incident of lawful arrest in a home—a bright

line formula. Justice White’s opinion in Buie pointed out:

We also hold that as an incident to the arrest the officers could, as a
precautionary matter and without probable cause or reasonable suspicion,
look in closets and other spaces immediately adjoining the place of arrest
from which an attack could be immediately launched.

494 U.S. at 334 (emphasis supplied).

It is only as the protective sweep then moves outward from that central core that

justification, at the reasonable suspicion level, becomes necessary.

Beyond that, however, we hold that there must be articulable facts which,
taken together with the rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene. This is no more and
no less than was required in Terry and Long, and as in those cases, we think
this balance is the proper one.

Id. (Emphasis supplied; footnote omitted).

H. The Scope Limitations Of A Protective Sweep

The Buie opinion also carefully pointed out the scope limitations—in terms of both

space and time—that circumscribe the protective sweep.

We should emphasize that such a protective sweep, aimed at
protecting the arresting officers, if justified by the circumstances, is
nevertheless not a full search of the premises, but may extend only to a
cursory inspection of those spaces where a person may be found. The sweep

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lasts no longer than is necessary to dispel the reasonable suspicion of danger
and in any event no longer than it takes to complete the arrest and depart the
premises.

494 U.S. at 335–36 (emphasis supplied; footnote omitted).

I. Reasonable Suspicion Is Objectively Assessed

Judge McAuliffe, who had been in dissent when the Buie case was first before the

Court of Appeals, wrote the majority opinion for that Court on remand from the Supreme

Court. The Court of Appeals was again split, four to three with one of the four, moreover,

Judge Chasanow, simply concurring in the result. On remand, the Court of Appeals had to

determine whether the standard for measuring reasonable suspicion was subjective or

objective.

[W]e must first determine whether the presence of “reasonable suspicion”
must be tested from the view of the particular police officers involved, or
from the view of a reasonable police officer under the same circumstances,
or a combination of the two. Buie argues the State must show that the officers
had a subjective belief that there was a dangerous individual in the basement,
and that this belief must have been objectively reasonable. The State insists
an objectively reasonable belief is sufficient.

Buie v. State, 320 Md. 696, 699, 580 A.2d 167 (1990) (emphasis supplied).

The reason for uncertainty was that the Supreme Court’s opinion had been less than

crystal clear in that regard.

From the Supreme Court’s Buie, it is not easy to tell whether the
established standard is subjective or objective.

Id.

The Court of Appeals then opted for the objective standard.

We conclude that in determining the existence of reasonable suspicion
in a case such as this, the objective standard must be used. The Supreme

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Court in this case spoke specifically of the use of an objective standard when
it said “[t]his is no more and no less than was required in Terry and Long . .
. .” Maryland v. Buie, 110 S. Ct. at 1098. The experience and training of the
particular police officers involved will form a part of the matrix of facts that
define the circumstances which must be considered, but the test is whether
a reasonably prudent police officer, under those circumstances, is justified
in forming a reasonable suspicion that the house is harboring a person
posing danger to those on the arrest scene.

320 Md. at 702 (emphasis supplied; footnote omitted).1

J. The Triggering Justification Need Not End At The Doorstep

The post-Buie caselaw has been scarce. As the State points out in its brief, “It

appears that the only reported Maryland case since Buie that analyzes a protective sweep

in any detail is Murphy v. State,” 192 Md. App. 504, 995 A.2d 783 (2010). The primary

issue for decision in Murphy was that of whether, all other requirements having been

satisfied, a protective sweep would be disallowed because the arrest that triggered it had

occurred immediately outside a residence rather than literally within it. The Murphy

opinion posed the issue:

Here, by contrast, appellant and the other occupants were arrested outside the
apartment. Appellant argues that, because the arrest here occurred outside the
residence, “the officers were not placed at risk of being ‘ambushed’ by
another suspect on the premises, and there was no rationale for performing a
‘protective sweep [of the apartment].’”

192 Md. App. at 513–14 (emphasis supplied).

1
CAVEAT: Because the decision of the Court of Appeals was only made pursuant
to a four-to-three vote and because one of the prevailing four simply concurred in the
majority decision but not the majority opinion, some lingering doubt might be deemed to
remain.

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Judge Graeff surveyed the national caselaw, federal and state, and found that seven

United States Courts of Appeal had unanimously held that the locus of the arrest, just

outside rather than inside the residence, would not preclude a protective sweep. She quoted

with approval United States v. Lawlor, 406 F.3d 37, 42 (1st Cir. 2005):

We think that an arrest that occurs just outside the home can pose an equally
serious threat to arresting officers as one that occurs in the home. Therefore,
we accept the position that a protective sweep may be conducted following
an arrest that takes place just outside the home if sufficient facts exist that
would warrant a reasonably prudent officer to fear that the area in question
could harbor an individual posing a threat to those at the scene.

192 Md. App. at 514–15 (emphasis supplied). See also United States v. Wilson, 306 F.3d

231, 239 (5th Cir. 2002) (“[N]othing but an open door stood between the officers . . . and

harm’s way.”); United States v. Paopao, 469 F.3d 760 (9th Cir. 2006); United States v.

Cavely, 318 F.3d 987 (10th Cir. 2003); United States v. Colbert, 76 F.3d 773 (6th Cir.

1996); United States v. Henry, 48 F.3d 1282 (D.C. Cir. 1995); United States v. Oguns, 921

F.2d 442 (2d Cir. 1990). The states that have dealt with the issue have followed suit. State v.

Spencer, 268 Conn. 575, 848 A.2d 1183 (2004); State v. Grossi, 72 P.3d 686 (Utah Ct.

App. 2003); State v. Revenaugh, 133 Idaho 774, 992 P.2d 769 (1999); People v. Maier, 226

Cal. App. 3d 1670 (1991).

In line with that precedent, Judge Graeff’s opinion for this Court concluded:

We agree with the consensus of other courts that the reasonableness
of a protective sweep of a residence incident to arrest does not turn on
whether the arrest occurred inside or outside the residence. An arrest that
occurs outside a residence can pose a threat to arresting officers that is
equally as serious as when the arrest occurs inside the residence.

192 Md. App. at 517 (emphasis supplied).

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The Protective Sweep In This Case

The circumstances surrounding the arrest of the appellant at 43 Charles Street in

Hagerstown on January 25, 2017, were such that they could, we hold, objectively have

created in a police officer a reasonable trepidation that an armed confederate might have

been lurking in the shadows, especially in the basement.

The appellant was being hunted by the United States Marshals Service/Capital Area

Regional Fugitive Task Force, in cooperation with the Hagerstown Department of Police.

In May of 2003, the appellant had been convicted in the State of New York, on his guilty

plea, of the criminal possession of marijuana in the 5th degree. A month later, in June of

2003, the appellant had been convicted again in New York, on his guilty plea, to the

criminal possession of a controlled substance. In October of 2010, the appellant was again

convicted in New York of the criminal possession of a loaded firearm. In January of 2017,

the Task Force was looking for the appellant to arrest him on an active Violation of Parole

warrant issued for him by New York State. The violation of parole leading to the issuance

of that retake warrant was a firearms violation.

In the Fall of 2016, Agent Frank Toston of the Washington County Narcotics Task

Force had received information that the appellant was in Hagerstown and was selling and

distributing narcotics. The information was that the appellant frequented the area of John

Street and North Mulberry Street. The source of information indicated, moreover, that the

appellant was “always in possession of a handgun.”

The suppression hearing was conducted on November 29, 2017, before Judge

Boyer, with five members of the Task Force testifying for the State and no one for the

11
defense. Judge Boyer filed his opinion and his Order of Court, denying the appellant’s

motion, on December 8, 2017. Judge Boyer made extensive findings of fact, which findings

were supported by the testimony of the Task Force officers. Those findings of fact were

not clearly erroneous. Indeed, they were not even controverted. We accept them as the

unassailable factual bases for assessing the present appeal.

At the suppression hearing, the appellant conceded that the New York parole retake

warrant for his arrest was valid. The appellant further conceded that the entry of the

Fugitive Task Force arrest team into 43 Charles Street on January 25, 2017, was also valid.

The only issue in dispute was the justification for the protective sweep into the basement

immediately following the appellant’s arrest.

Based on the testimony of Detective John Anthony Moriarty of the Montgomery

County Police Department, assigned to the U.S. Marshal’s Capital Area Regional Fugitive

Task Force, Judge Boyer made the following findings:

During the hearing Detective Moriarty testified that upon arrival at the
residence the arrest team did not receive a response to their knock on the door
of 43 Charles. They then made contact with a Ms. Brown at 41 Charles Street,
the adjoining side of the duplex, who indicated that her daughter, teenaged
granddaughter, and the Defendant (her daughter’s boyfriend) resided in 43
Charles. Ms. Brown was able to place a call to her daughter, which resulted
in Sidrease Morgan [the girlfriend] coming to the door at 43 Charles.

Ms. Morgan confirmed that the Defendant was inside of 43 Charles,
but was unsure whether he was upstairs or downstairs. She also indicated that
her child was not in school that day and was likewise in the residence. When
questioned, Ms. Morgan indicated she had seen the Defendant in possession
of a firearm, but not for about a week. She also confirmed the gang-related

12
information that the arrest team already knew, indicating that the Defendant
was a “Blood from Harlem.” [2]

(Emphasis supplied).

The next witness was Deputy Ryan Lee of the Montgomery County Sheriff’s Office,

also assigned to the U.S. Marshal’s Task Force. Deputy Lee had been a law enforcement

officer for 18 years and had been working with the Task Force for 12 years. Based upon

his testimony, Judge Boyer made the following findings of fact.

Deputy Lee testified that he was the “shield guy” and first to enter 43
Charles Street. He initially called out for the Defendant, but when he received
no reply he led the team of approximately ten into the residence, entering the
living room. He continued through the living room to the kitchen, where he
again called out several times with no response.

Deputy Lee located an open stairway off the kitchen which led to the
basement. Having received no response, he kicked a bottle down the
basement steps in the hope of getting a reaction. At that time, Lee heard
fumbling around in the basement and continued to call out, with no
response.[3]

After about two minutes, the Defendant showed himself at the bottom
of the basement steps. The Defendant was then instructed to come up the
steps, but he initially just stared. After further commands, the Defendant
came part way up the steps, but no further. Members of the arrest team then
went down the steps and took him into custody, walking him to the kitchen.
At this point Deputy Lee indicated he was still “holding” the stairwell in case
others may be downstairs.

2
See United States v. Winston, 444 F.3d 115, 119 (1st Cir. 2006) (“Winston was a
potentially dangerous drug dealer who had recently purchased a bullet-proof vest and
firearms and had numerous, potentially armed and dangerous cohorts.”).
3
See United States v. Alatorre, 863 F.3d 810, 814–15 (8th Cir. 2017), in which a
sweep was upheld in a case where the defendant had a history of violence and was
potentially armed and where the officers heard notices in the house which “created a
reasonable uncertainty as to how many people were inside the residence.”

13
(Emphasis supplied).

The next witnesses to testify were Deputy United States Marshal Chris Carson of

the Greenbelt Office and Detective William Blount of the Prince George’s County Police

Department, who had been assigned to the Task Force for the past six years. Based on their

combined testimony, Judge Boyer made the following findings:

As the arrest team was entering 43 Charles, contact was made with
Ms. Morgan’s teenage daughter. Deputy Marshal Carson testified that as the
child was passed out of the house by the arrest team, she replied to the
officers that she didn’t know if anyone else was in the house.[4]

....

Deputy U.S. Marshal Carson testified that “just after [the Defendant]
was in custody” the team conducted a protective sweep of the house. Deputy
Lee testified that a sweep of the second floor, where noises were heard, took
five minutes. Then Carson and Detective Blount entered the basement “to
make sure no one else was down there.” Carson described the basement as
being “fairly open” and characterized his actions as making “quick visual
scans” while “just looking behind large items.” There was no testimony that
anything was moved or opened during the protective sweep of the basement.

While conducting the protective sweep of the basement, the testimony
and exhibits indicate that the basement was somewhat dark and the officers
needed to use their flashlights. On one side of the basement Carson observed
a black object in plain view sticking out of a Christmas tree box which
resembled a handgun, as well as a box of ammunition, clearly visible about
chest high in the brick wall where a brick was missing. On the other side of
the basement, Blount observed a rectangular package, wrapped in plastic
which he believed to be illegal narcotics. This was observed in plain view to
the side of yet another Christmas tree box near a wall.

4
See United States v. Virgil, 444 F.3d 447, 451 (5th Cir. 2006), a case wherein a
protective sweep was upheld where police heard sounds coming from the rear of the
residence and where the defendant stated that he did not know if anyone else was inside
the home.

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The officers did not seize any of the items observed, but their
observations were included in the application for search warrant which was
later issued and executed at 43 Charles Street.

(Emphasis supplied).

Based upon his findings of fact, Judge Boyer ruled as follows:

Based upon the totality of the circumstances, the Court finds that it
was reasonable for the officers to conduct a protective sweep of the basement
and the second floor of 43 Charles Street. The sweep, which the officers
testified is part of their standard protocol to ensure officer safety, occurred
nearly contemporaneously with the arrest while the Defendant was still in the
living room. The basement was immediately adjoining the place of the
Defendant’s arrest and in fact was where he was hiding from the arrest team.
Furthermore, the sweep was de minimis, not overly intrusive, and limited to
confirming that no one else was present in the house who may have posed a
danger to the officers.

The facts known to the arrest team at the time they conducted the
protective sweep support its necessity. The Defendant had an active parole
retake warrant, was known to be armed in the past, was known to be a gang
member, and had secreted himself in a dark basement, initially refusing to
respond or submit. These facts, coupled with the uncertainty of knowing who
else may be the house warranted the conduct of the protective sweep by the
officers.[5]

The plain view observations of the officers made during the protective
sweep are valid and not violative of the protections afforded by the 4th
Amendment. Therefore, the search warrant issued, based in part upon those
observations, is likewise valid especially in light of the Defendant’s status as
a parolee with an active, outstanding parole retake warrant.

(Emphasis supplied).

5
See Sutterfield v. City of Milwaukee, 870 F. Supp. 2d 633, 640 (E.D. Wis. 2012),
aff’d, 751 F.3d 542 (7th Cir. 2014) (“[A] police officer can be heard asking whether there
are any other individuals in the house, to which there is no response. Further, the police
officers were under the (correct) impression that Ms. Sutterfield owned a gun, making a
firearm likely present in the home.”).

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We affirm that ruling. The protective sweep did not violate the Fourth Amendment.

The cursory observations made in the course of the protective sweep, therefore, were

properly included in the application for the search warrant for 43 Charles Street. The

motion to suppress was properly denied.

JUDGMENT AFFIRMED; COSTS TO BE
PAID BY APPELLANT.

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