United States of America v. Richard Walker

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1522
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ICHARD WALKER ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 23-CR-30012 — Stephen P. McGlynn, Judge.
____________________
A RGUED NOVEMBER 14, 2024 — DECIDED J ULY 17, 2025
____________________
Before JACKSON -A KIWUMI , PRYOR , and M ALDONADO, Cir-
cuit Judges.
PRYOR , Circuit Judge. Officers arrested Richard Walker at
the front door of the residence of his girlfriend, Ramona Pau-
lette, where he was staying overnight. Paulette lived with her
mother, Laverne Shipp; and with her and Walker’s son,
Walker Jr. After arresting Walker, officers performed a protec-
tive sweep of the residence, discovering and seizing a loaded
firearm beneath the mattress in Walker Jr.’s bedroom. Paulette

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2 No. 24-1522
and Shipp later arrived home, and officers informed them of
the firearm. Officers then sought and received consent from
Shipp to conduct a second search of her home. During the sec-
ond search, officers found drugs near a pile of men’s clothing
in Paulette’s bedroom.
A federal grand jury indicted Walker with one count of be-
ing a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) and one count of possession with intent to distrib-
ute fentanyl in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
Walker moved to suppress all evidence found at the Shipp
residence, arguing the officers’ search violated the Fourth
Amendment. The district court denied the motion, finding the
sweep and the search were justified. Walker then entered a
conditional plea of guilty to both counts of the indictment, re-
serving the right to appeal the denial of his suppression mo-
tion.
On appeal, Walker argues that the firearm and drugs were
discovered pursuant to an unconstitutional search for two
reasons: the protective sweep of the residence was unlawful,
and Shipp’s consent was not sufficiently attenuated from the
illegal sweep. For the reasons below, we reverse and remand
to the district court.
I. BACKGROUND
A. Factual Background
On October 28, 2022, officers serving as part of the U.S.
Marshals Great Lakes Regional Fugitive Task Force executed
a state arrest warrant for Walker at the residence of Laverne
Shipp. At the time, Walker was on monitored release with St.
Clair County, Illinois, Probation for unlawful possession of

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No. 24-1522 3
firearm ammunition by a felon and retail theft, but had re-
moved his ankle monitor.
Upon arrival at the Shipp residence, officers knocked on
the door several times. Walker’s son, Walker Jr., eventually
opened the door and stepped outside; when asked, he told
officers he was unsure who else was inside the residence.
Shortly thereafter, Walker emerged from the residence and
was arrested outside the front door without incident.
Officers decided to perform a protective sweep of the res-
idence. The sweep included a search of Walker Jr.’s bedroom,
where one officer, Officer Blackburn, discovered a firearm un-
derneath the mattress. The mattress sat directly on a box
spring, and the box spring laid on top of the floor. Another
officer, Special Agent Green with the Bureau of Alcohol, To-
bacco, Firearms and Explosives, photographed and seized the
firearm.
While officers were still on the scene, Shipp and Paulette
arrived home. They informed the officers that Walker stayed
at their residence most nights. Officers advised them of the
firearm discovered in Walker Jr.’s bedroom and requested
Shipp’s consent to conduct another search of the home. Shipp
consented upon completing a voluntary consent form. This
second search uncovered fentanyl, empty pill capsules, a pill
press, a pipe, scales, and Walker’s credit card near a pile of
men’s clothing in Paulette’s bedroom.
B. Procedural History
Walker moved to suppress all evidence obtained at
Shipp’s home. He argued the protective sweep was unlawful
under the Fourth Amendment such that the exclusionary rule
required suppressing the firearm. He also urged the district

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4 No. 24-1522
court to decline to apply the inevitable discovery exception to
the exclusionary rule because the firearm would not have
been discovered but for the unlawful protective sweep. Fi-
nally, he argued that Shipp’s consent did not justify the war-
rantless search of the residence because it was tainted by the
unlawful protective sweep.
The district court denied the motion, concluding that the
protective sweep was lawful. In the alternative, it opined that
even if the protective sweep had been unlawful, the attenua-
tion exception to the exclusionary rule would allow the gov-
ernment to introduce the firearm into evidence. It further con-
cluded that Shipp’s consent justified the subsequent warrant-
less search. The district court did not analyze the inevitable
discovery exception to the exclusionary rule.
Walker entered a conditional guilty plea as to all charges,
reserving his right to appeal the district court’s denial of his
motion to suppress. The judge sentenced Walker to 51
months’ imprisonment, followed by three years’ supervised
release, and the payment of a $200 special assessment.
II. A NALYSIS
On appeal, Walker argues that the district court erred by
failing to suppress the firearm found in Walker Jr.’s bedroom
and the drug evidence found in Paulette’s bedroom. Accord-
ing to Walker, these items were discovered as the result of an
illegal search of the Shipp residence, in violation of the Fourth
Amendment.
When reviewing a district court’s denial of a motion to
suppress, we “review the district court’s legal conclusions de
novo and its factual findings for clear error.” United States v.
Williams, 106 F.4th 639, 653 (7th Cir. 2024) (internal quotations

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No. 24-1522 5
and citations omitted). Mixed questions of law and fact are
reviewed de novo. United States v. Hudson, 86 F.4th 806, 810
(7th Cir. 2023).
A. The Firearm
The parties raise three issues in relation to the firearm.
First, whether Walker has standing under the Fourth Amend-
ment to challenge the search of Walker Jr.’s bedroom. Second,
whether the search of the home, including Walker Jr.’s bed-
room, was a lawful protective sweep. And third, whether, if
the search was unlawful, the exclusionary rule applies such
that the firearm must be suppressed.
1. Fourth Amendment Standing
The Fourth Amendment protects the “right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. C ONST.
amend. IV. For that reason, a warrantless search of a home is
presumptively unreasonable under the Fourth Amendment
unless the government can show, “by a preponderance of the
evidence, that the search was reasonable under a valid excep-
tion to the warrant requirement.” United States v. Davis, 44
F.4th 685, 688 (7th Cir. 2022).
The government requests that we affirm the denial of
Walker’s motion to suppress on the basis that Walker did not
have standing under the Fourth Amendment to challenge the
search of Walker Jr.’s bedroom.
“Fourth Amendment standing is not ‘jurisdictional,’ but
instead reflects the ‘idea that a person must have a cognizable
Fourth Amendment interest in the place searched before seek-
ing relief for an unconstitutional search.’” United States v. Os-
trum, 99 F.4th 999, 1004 (7th Cir. 2024) (quoting Byrd v. United

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6 No. 24-1522
States, 584 U.S. 395, 410 (2018)). Therefore, when determining
standing under the Fourth Amendment, we ask whether a de-
fendant has a “legitimate expectation of privacy” in the place
searched. Rakas v. Illinois, 439 U.S. 128, 143 (1978). “A legiti-
mate expectation of privacy exists when the defendant exhib-
its a subjective expectation of privacy [in the location
searched] and the expectation is one that society is prepared
to recognize as reasonable.” United States v. Pitts, 322 F.3d 449,
456 (7th Cir. 2003).
Walker was an overnight house guest at the Shipp resi-
dence, and it is well-established that a person has a legitimate
expectation of privacy in a home in which they are an over-
night guest. Minnesota v. Olson, 495 U.S. 91, 96–97 (1990). The
government requests that we depart from this principle, how-
ever, because a state court order required Walker to reside at
his mother’s home, and not the Shipp residence. In that re-
spect, the government urges that Walker was wrongfully pre-
sent at the Shipp residence such that his expectation of pri-
vacy in the residence was unreasonable.
As a general matter, the government is correct that a de-
fendant’s unlawful presence in a location may render the de-
fendant’s expectation of privacy in that location unreasona-
ble. See United States v. Curlin, 638 F.3d 562, 565–66 (7th Cir.
2011). For instance, a defendant who has been evicted from a
residence does not have a legitimate expectation of privacy in
that residence. Id. at 565. But in this case, Walker was welcome
in Shipp’s home. And while Walker’s decision to reside at
Shipp’s residence may have violated a condition of his moni-
tored release, it does not deprive him of a Fourth Amendment
right to privacy in that residence as an overnight house guest.

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No. 24-1522 7
The government asks us to analogize this case to those
from other circuits involving no-contact protective orders that
barred a defendant from a particular place. For instance, the
government directs us to United States v. Cortez-Dutrieville,
which found unreasonable a defendant’s expectation of pri-
vacy in a dwelling where the defendant was present in viola-
tion of a court order that prohibited him from entering that
specific dwelling. 743 F.3d 881, 883–85 (3d Cir. 2014). The gov-
ernment cites United States v. Schram, 901 F.3d 1042, 1044–45
(9th Cir. 2018), and United States v. Bey, 825 F.3d 75, 77–79 (1st
Cir. 2016), for similar propositions.
These cases support a general principle that a person who
is legally prohibited from being at a specific residence cannot
claim a legitimate privacy interest in that residence. See Cor-
tez-Dutrieville, 743 F.3d at 884–85; Schram, 901 F.3d at 1044. But
here, the government identifies no order prohibiting Walker
from being at the Shipp residence. Walker was not evicted
from Shipp’s residence nor subject to a protective order bar-
ring him from the residence. And we decline to announce a
broader rule pursuant to which the Fourth Amendment pri-
vacy interest of a person on house arrest extends no further
than the home in which the person is ordered to reside. Ac-
cordingly, we agree with the district court that Walker’s sta-
tus as an overnight house guest, who spent most nights at the
Shipp residence, gave him a legitimate expectation of privacy
in that residence. Walker has standing under the Fourth
Amendment to bring the motion to suppress.
2. Reasonableness of the Search
We turn now to whether the warrantless search of Shipp’s
residence, during which officers discovered and seized a

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8 No. 24-1522
firearm in Walker Jr.’s bedroom, was reasonable under the
Fourth Amendment.
Generally, searches of a residence require a warrant to sat-
isfy the Fourth Amendment. Peals v. Terre Haute Police Dept.,
535 F.3d 621, 627 (7th Cir. 2008). However, there are excep-
tions to the warrant requirement. For example, incident to a
lawful arrest and absent a search warrant, officers may search
“spaces immediately adjoining the place of arrest from which
an attack could be immediately launched.” Maryland v. Buie,
494 U.S. 325, 334 (1990). A warrantless search “[b]eyond
that”—i.e., a “protective sweep”—may be initiated if sup-
ported by “articulable facts which, taken together with the ra-
tional inferences from those facts, would warrant a reasona-
bly prudent officer in believing that the area to be swept har-
bors an individual posing a danger to those on the arrest
scene.” Id. at 334–35.
Because the government did not contend below nor on ap-
peal that the warrantless search was justified because the
place of the search immediately adjoined the place of arrest,
we only address the question of whether the search of the
home extending into Walker Jr.’s bedroom was a lawful pro-
tective sweep. To that end, the district court found initiation
of the protective sweep justified because “officers had infor-
mation that there were others that could be on the premises.”
It further found reasonable lifting the mattress in Walker Jr.’s
bedroom given that “[t]he officers involved in the search
stated that they believed that a person could hide underneath
a mattress at the time of the search” and because it appeared
possible to the district court that “an attack could be launched
from between the mattress and the box spring.”

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No. 24-1522 9
As an initial matter, the district court erred by concluding
that officers may initiate a protective sweep following an ar-
rest merely based on the possibility that other persons could
be present. More is required. A protective sweep requires of-
ficers to have reason to believe the premises harbor not just a
person, but a person who poses a danger to those on the scene.
Buie, 494 U.S. at 334; see also United States v. Burrows, 48 F.3d
1011, 1017 (7th Cir. 1995) (protective sweep justified where
the defendant had a history of violence and officers were re-
fused entry but heard movement inside the apartment);
United States v. Barker, 27 F.3d 1287, 1289–92 (7th Cir. 1994)
(protective sweep justified where officers arrested the defend-
ant inside the home and had previously seen a weapon inside
the home during an investigation into drug dealing by the de-
fendant’s brother).
In any event, we note that in justifying the protective
sweep here, the government does not only invoke the possi-
bility that others were present. Rather, it also argues that the
arresting officers knew Walker had been charged with unlaw-
ful possession of firearm ammunition and had a criminal his-
tory that included robbery. From this, the government asks us
to infer that an officer could reasonably have believed some-
one else posing a danger was on the premises, justifying the
protective sweep of the house.
As our cases applying Buie make clear, the reasonable be-
lief inquiry must be based on “actual historical facts” or
“other articulable reasons for believing that, at the present,
the [home] presents a real threat to the safety of the officers.”
Burrows, 48 F.3d at 1016. In other words, a protective sweep
must not be based on “a ‘mere inchoate and unparticularized
suspicion or hunch’ of danger.” United States v. Tapia, 610 F.3d

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10 No. 24-1522
505, 510 (7th Cir. 2010) (quoting Buie, 494 U.S. at 332). That
officers suspected Walker—who had already been arrested—
to be dangerous says nothing about the dangerousness of
Paulette and Shipp, the other known residents who resided at
the dwelling. Moreover, this is not a case where officers had
available to them facts indicating the residence was used for
illegal activity by individuals other than the defendant, see
Tapia, 610 F.3d at 511, nor a case where officers witnessed eva-
sive behavior of persons inside the premises, see United States
v. Contreras, 820 F.3d 255, 268 (7th Cir. 2016).
Ultimately, however, we need not decide whether there
were sufficiently articulable facts to justify initiating a protec-
tive sweep. As we explain next, even assuming the protective
sweep was justified, it became unlawful in scope when offic-
ers lifted the mattress in Walker Jr.’s bedroom.
Because a protective sweep is “aimed at protecting the ar-
resting officers,” it is “not a full search of the premises, but
may extend only to a cursory inspection of those spaces where
a person may be found.” Buie, 494 U.S. at 335. It must “last[]
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.” Id. at 335–36.
Walker contends that the protective sweep became unrea-
sonable in scope when the officers lifted the mattress in
Walker Jr.’s bedroom because, under the circumstances, no
reasonable officer would have believed “a dangerous assail-
ant was hiding underneath the mattress in a hollowed-out
box spring waiting to launch an attack.” We agree. The gov-
ernment failed to identify anything in the record to indicate
that the officers here had reason to believe the area between
the mattress and box spring had been hollowed out such that

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No. 24-1522 11
lifting the mattress would be “necessary to dispel the reason-
able suspicion of danger.” Id. And while we acknowledge that
the district court broadly opined from photographs in the rec-
ord that, despite awkward positioning, an attack could be
launched from between the mattress and box spring, we have
explained that “a district court must make enough findings to
enable us to review the record in ‘a reasoned and meaningful
manner.’” United States v. Fields, 371 F.3d 910, 916 (7th Cir.
2004) (quoting United States v. Talkington, 843 F.2d 1041, 1048
(7th Cir. 1988)). Here, the district court did not explain why
the configuration rendered reasonable a belief that a danger-
ous individual could launch an attack from between the mat-
tress and box spring in Walker Jr.’s bedroom.
Although it may have theoretically been possible for a per-
son to have hollowed the inside of the mattress or box spring
to create a hiding place from which to attack, theoretical pos-
sibilities cannot be enough. Finding otherwise would permit
officers to lift a mattress in every protective sweep, regardless
of the reasonableness of their suspicions or configuration of
the premises. “We continue to recognize that ‘the sweep is a
device that can easily be perverted to achieve ends other than
those acknowledged as legitimate in Buie.’” United States v.
Starnes, 741 F.3d 804, 810–11 (7th Cir. 2013) (quoting Burrows,
48 F.3d at 1017).
In those other circuits that have found reasonable searches
underneath mattresses during a protective sweep, the circum-
stances of those cases have been materially distinguishable
from the circumstances here. In United States v. Bass, the Sixth
Circuit found reasonable a search underneath a bed in light of
an officer’s testimony that the bedframe was high enough for
a person to hide underneath. 315 F.3d 561, 564 (6th Cir. 2002).

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12 No. 24-1522
Bass involved no request that the court assume, based only on
speculation, that a dangerous person had hollowed out the
bed.
In United States v. Silva, the Fifth Circuit found reasonable
a search inside a wooden box on which a waterbed rested,
given an officer’s testimony that “he believed the wooden box
… was hollow and large enough for a person to hide inside.”
865 F.3d 238, 243 (5th Cir. 2017). But here, the government
does not identify what in this record would have rendered
reasonable an officer’s belief that Walker Jr.’s mattress or box
spring was hollowed out. Rather, the government merely pro-
vides a blanket and context-blind statement that individuals
sometimes hide underneath mattresses.
Finally, in United States v. Garcia-Lopez, the Fifth Circuit
found reasonable a belief that a person for whom officers
were searching was “hidden … in a hollowed box spring,” as
officers “noticed a light on before hearing a door shut” and
observed suspicious behavior of a person sitting on the bed.
809 F.3d 834, 839 (5th Cir. 2016). Similar circumstances are ab-
sent here. We have no record of suspicious behavior within
Walker Jr.’s bedroom to suggest someone was hiding between
the bed and box spring.
Cases in which other circuits declined to find reasonable
searches underneath mattresses prove more analogous to the
facts here. In United States v. Blue, the Second Circuit found
unreasonable a search underneath a mattress despite the
physical possibility that someone was hiding “in a cavity in
the box spring” because “the officers lacked articulable facts
at the time of the sweep to support such an inference.” 78 F.3d
56, 61 (2d Cir. 1996). For instance, there was “no indication …
of any movement” when officers entered the room, nor any

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No. 24-1522 13
“indication that the officer’s search was the result of a rise or
bulge in the mattress” or “anything unusual about the bed.”
Id. Similarly, in United States v. Ford, the D.C. Circuit found an
agent “plainly exceeded the permissible scope of a protective
sweep” by lifting a mattress, given the agent’s failure to sug-
gest that he believed he would find a person hiding under-
neath the mattress and admission that it would have been vir-
tually impossible to do so. 56 F.3d 265, 270 (D.C. Cir. 1995).
The reasoning of both cases holds here. Accordingly, we find
that lifting the mattress in Walker Jr.’s bedroom on these facts
rendered the protective sweep unreasonable in scope.
3. The Exclusionary Rule and Its Exceptions
“[W]hen the government obtains evidence in violation of
an individual’s Fourth Amendment rights, the remedy is gen-
erally the exclusion”—i.e., suppression—“of that evidence …
at trial.” United States v. McGill, 8 F.4th 617, 624 (7th Cir. 2021).
This exclusionary rule “encompasses both the ‘primary evi-
dence obtained as a direct result of an illegal search or sei-
zure,’ and … ‘evidence later discovered and found to be de-
rivative of an illegality,’ the so-called ‘fruit of the poisonous
tree.’” Utah v. Strieff, 579 U.S. 232, 237 (2016) (quoting Segura
v. United States, 468 U.S. 796, 804 (1984)). But the rule “does
not apply automatically.” McGill, 8 F.4th at 624. Instead, it ap-
plies only “where its deterrence benefits outweigh its sub-
stantial social costs,” such that suppression is “our last resort,
not our first impulse.” Strieff, 579 U.S. at 237–38 (quoting Hud-
son v. Michigan, 547 U.S. 586, 591 (2006)). Accordingly, alt-
hough we find the firearm was illegally obtained when it was
seized during an unlawful protective sweep, the firearm need
not be suppressed if an exception to the exclusionary rule ap-
plies. See United States v. Leon, 468 U.S. 897, 906 (1984) (the

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14 No. 24-1522
question of whether the exclusionary rule applies is separate
from the question of whether a defendant’s Fourth Amend-
ment rights have been violated).
At issue here are the good-faith, attenuation, and inevita-
ble discovery exceptions to the exclusionary rule. The last two
of these exceptions “involve the causal relationship between
the unconstitutional act and the discovery of evidence,” with
the inevitable discovery doctrine allowing the admission of
evidence “that would have been discovered even without the
unconstitutional source”; and the attenuation doctrine allow-
ing the admission of evidence “when the connection between
unconstitutional police conduct and the evidence is remote or
has been interrupted by some intervening circumstance.”
Strieff, 579 U.S. at 238. We address each exception in turn.
a. Good-Faith Exception
The government argues for the first time on appeal that
the good-faith exception to the exclusionary rule should ap-
ply. The government may present this “new argument[] for
affirmance” despite not raising it before the district court.
United States v. Cade, 93 F.4th 1056, 1061 (7th Cir. 2024) (gov-
ernment’s invocation on appeal of an exception to the exclu-
sionary rule not raised before the district court was not
waived where the defendant did not file a reply brief to argue
waiver and the record in the district court was “adequately
developed”).
The good-faith exception applies when officers “act with
an objectively reasonable good-faith belief that their conduct
is lawful.” United States v. Rainone, 816 F.3d 490, 495 (7th Cir.
2016) (internal quotation and citation omitted). For example,
suppression is not required when officers conduct a search

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No. 24-1522 15
“in reasonable reliance on binding precedent.” United States v.
Banks, 60 F.4th 386, 391 (7th Cir. 2023) (quoting Davis v. United
States, 564 U.S. 229, 241 (2011)).
The government fails to carry its burden of showing that
officers acted in objective good faith when lifting the mattress
in Walker Jr.’s bedroom. See United States v. Matthews, 12 F.4th
647, 653 (7th Cir. 2021). The government’s position rests on a
request that we find sufficient what it describes as an “abun-
dance of nonbinding cases holding that where officers have
reason to believe other persons are present, they may conduct
a protective sweep that includes checking under mattresses.”
(App. Dkt. 10 at 29).
We note that the government does not cite any Seventh
Circuit case holding that the good-faith exception applies
when an officer’s conduct is in line with non-binding caselaw.
But even assuming an “abundance” of non-binding caselaw
warrants applying the good-faith exception, there was no
such abundance of non-binding caselaw to support the search
here. Instead, and as explained above, out-of-circuit caselaw
refutes the proposition that officers may lift mattresses during
protective sweeps when they lack particularized suspicion
that a dangerous person is hiding, and is able to hide, under-
neath the mattress. We therefore find the good-faith exception
does not apply.
b. Attenuation Exception
The attenuation exception to the exclusionary rule allows
the government to introduce evidence “when the connection
between unconstitutional police conduct and the evidence is
remote or has been interrupted by some intervening circum-
stance, so that ‘the interest protected by the [Fourth

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16 No. 24-1522
Amendment] … would not be served by suppression.’”
Strieff, 579 U.S. at 238 (quoting Hudson, 547 U.S. at 593). The
doctrine “evaluates the causal link between the government’s
unlawful act and the discovery of evidence.” Id.
The district court held that the attenuation exception ap-
plied because Shipp consented to a search of the entire home
following the officers’ protective sweep and seizure of the
firearm. In other words, the district court found that Shipp’s
consent served as an intervening circumstance between the
unlawful conduct (i.e., the protective sweep) and the evidence
seized (i.e., the firearm).
Walker asserts that the district court erroneously applied
the attenuation exception when, in his view, the inevitable
discovery doctrine was the appropriate analytical framework
to apply. In particular, Walker argues the attenuation excep-
tion is meant to allow the government to introduce evidence
discovered or seized after an intervening event that is suffi-
ciently attenuated from an earlier illegal search. But because
the firearm here was discovered and seized during an illegal
protective sweep, and not after Shipp consented to the search,
Walker urges the attenuation exception should not apply.
The government does not argue that the attenuation ex-
ception should apply in relation to the firearm. Rather, the
government only presses that the good-faith and inevitable
discovery exceptions justify the warrantless search.
The district court erred in applying the attenuation excep-
tion. To be sure, the attenuation exception can apply when ev-
idence is “obtained after an illegal … search.” Brown v. Illinois,
422 U.S. 590, 597 (1975) (emphasis added); see also United
States v. Davis, 44 F.4th 685, 690–91 (7th Cir. 2022). But the

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No. 24-1522 17
attenuation exception cannot apply where the evidence was
discovered and seized during an initial unlawful search and
before a consensual search. Davis, 44 F.4th at 690–91 (citing
United States v. Cooper, 24 F.4th 1086 (6th Cir. 2022)). Indeed,
“[e]vidence obtained as a direct result of an unconstitutional
search or seizure is plainly subject to exclusion.” Segura v.
United States, 468 U.S. 796, 804 (1984). That is what happened
here. The officers seized the firearm during their unlawful
search, such that Shipp’s subsequent consent could not, as a
matter of logic, have served as the means through which the
government obtained the firearm. See United States v. Robeles-
Ortega, 348 F.3d 679, 684–85 (7th Cir. 2003). Because “[t]he
[firearm] was seized during the initial unlawful search”—and
not during the consensual search—“inevitable discovery, not
attenuation, is the right tool for the job.” Cooper, 24 F.4th at
1095–96. To that end, we agree with Walker that the district
court erroneously applied the attenuation exception.
c. Inevitable Discovery Exception
The inevitable discovery exception applies “where the
government establishes by a preponderance of the evidence
that the information [unlawfully discovered] ultimately or in-
evitably would have been discovered by lawful means.”
United States v. Rosario, 5 F.4th 706, 713 (7th Cir. 2021) (internal
quotations and citations omitted). The government must
show “two criteria are met: First, it must show that it had, or
would have obtained, an independent, legal justification for
conducting a search that would have led to the discovery of
the evidence; second, [it] must demonstrate that it would
have conducted a lawful search absent the challenged con-
duct.” Id. (quoting United States v. Marrocco, 578 F.3d 627, 637–
38 (7th Cir. 2009)).

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18 No. 24-1522
The government argues Shipp’s consent to search the res-
idence would have inevitably led to discovery of the firearm,
and that the consensual search was lawful because Shipp’s
consent was voluntary. As support, it notes that the consent
form Shipp signed stated that her consent had been given vol-
untarily.
Walker argues the firearm would not have inevitably been
discovered by lawful means absent the illegal protective
sweep. For one, he asserts the officers only requested Shipp’s
consent to search the home because they had uncovered a
loaded firearm during an unlawful search. See Marrocco, 578
F.3d at 638 (suggesting that the inevitable discovery exception
would not apply “where the investigating officers learned
new information during an illegal search and, based on that
information, took investigatory steps that they would not
have taken otherwise”). Moreover, Walker argues that had
the officers not told Shipp about their discovery during the
unlawful search, Shipp would not have consented to the sec-
ond search. To this end, Walker directs us to an affidavit in
which Shipp attests she would not have consented to the
search had the officers not informed her about their discovery
of the firearm.
The district court did not decide whether the inevitable
discovery exception applied, despite the exception being
raised by the parties. Instead, it understood the parties to have
placed the attenuation exception at issue. Because the district
court applied the wrong legal test by discussing the attenua-
tion exception rather than inevitable discovery exception, and
because the district court did not render any factual findings
to allow an assessment of whether the inevitable discovery

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No. 24-1522 19
doctrine applies, we remand for further proceedings on inev-
itable discovery.
On remand, the district court must “examine the circum-
stances as they existed just before the protective sweep to de-
termine what would have happened had the protective sweep
never occurred.” See Cooper, 24 F.4th at 1096; see also United
States v. Brown, 79 F.3d 1499, 1510 (7th Cir. 1996) (remanding
for the district to decide a factual issue as to the reasonable-
ness of a protective search but requiring that the determina-
tion be made “on the existing record”).
B. Drug Evidence
Walker also argues that the contraband found during the
consensual search of Paulette’s bedroom should have been
suppressed because Shipp’s consent to search the home was
involuntary, given that it was tainted by the illegal protective
sweep. The government responds that Walker forfeited this
argument in relation to the drug evidence because he did not
raise involuntary consent as an independent claim of suppres-
sion of the drug evidence. We disagree.
Before the district court, Walker’s motion to suppress ar-
gued that Shipp’s consent was tainted by the illegal protective
sweep. As a result, Walker did not limit his suppression mo-
tion to the firearm, and instead requested that the district
court suppress “all evidence seized” from Shipp’s resi-
dence—which included the drug evidence found during the
subsequent search. To the extent the government seeks to ar-
gue that Walker was required to do more to preserve his re-
quest to exclude the evidence found following Shipp’s alleged
consent, we cannot agree. It is the government that bears the
burden of proving a warrantless search of a residence was

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20 No. 24-1522
consensual or that some other exception to the exclusionary
rule applies. See, e.g., United States v. McGraw, 571 F.3d 624,
628 (7th Cir. 2009); United States v. Rodriguez, 831 F.2d 162, 167
(7th Cir. 1987).
We acknowledge that the district court concluded that
Shipp’s consent justified the second search. However, it
reached this conclusion upon finding the protective sweep
was lawful, consequently rejecting Walker’s position that the
consent was tainted by illegality. Because we find the protec-
tive sweep unconstitutional, we also direct the district court
to address anew whether Shipp’s consent provided inde-
pendent legal justification to uphold the search and seizure of
contraband in Paulette’s bedroom.1
III. CONCLUSION
For these reasons, we REVERSE the district court’s denial
of Walker’s suppression motion and REMAND for further
proceedings consistent with this opinion.
1 Having reviewed the parties’ Stipulation of Fact and Reservation of Right
to Appeal Ruling on Suppression Motion (Dkt. 46) and without a tran-
script of the plea hearing, we also note that we are unable to discern the
factual basis the court had to enter judgment on the charge of possession
with intent to distribute fentanyl. See FED . R. C RIM. P. 11(b)(3). The Stipu-
lation only contains facts relating to the firearm charge.

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