United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
12, 2018, police officers executed a search warrant for drugs
and drug paraphernalia at a residential garage in which
Defendant Eric Ford usually slept. While conducting the
search, the officers observed a sawed-off shotgun in plain
view and seized it. The government subsequently charged Ford
with one count of possessing a sawed-off shotgun, in
violation of 26 U.S.C. §§ 5822, 5861(c), and 5871.
Ford now moves to suppress the shotgun seized during the
garage search [DE 51], and the parties have submitted a set
of stipulated facts in lieu of an evidentiary hearing. [DE
For the reasons set forth below, the Court will deny
Ford's motion to suppress.
stipulated by the parties, just before midnight on June 12,
2018, officers with the South Bend Police Department
surrounded a garage located at 1710 Medora Street in South
Bend, Indiana. They had with them an arrest warrant for
Joshua Kendall (Ford's codefendant in this case) and had
received a tip that Kendall was inside the garage. Officers
knew that Kendall had a prior conviction for a crime of
violence and considered him dangerous and possibly armed.
noticed that the garage itself had security cameras mounted
outside. The garage door was open and officers heard music
emanating from a room inside the garage, which was segregated
by a closed door. The officers then conducted a “call
out” and ordered the garage's occupants outside.
Four individuals emerged from the garage's inner room
with their hands up: Joshua Kendall, Eric Ford, and two
women. The officers could not fully see into the inner room
from outside the garage, so once they secured the four
individuals, three officers performed a quick protective
sweep of the room (which turned out to be Ford's bedroom)
to determine if anyone else had remained inside. The sweep
“was very quick and involved the officers only looking
where any other person might be hiding.” [DE 85 at 2]
During this sweep, the officers detected a strong odor of raw
marijuana and observed “several firearms and ammunition
throughout the room, ” in the open.
on their observations, officers applied for a warrant to
search the room for illegal drugs and paraphernalia,
firearms, and ammunition. The officers presented the
application to a state court judge, who then issued a search
warrant for “drug evidence, to wit, drugs, drug
paraphernalia, scales, packaging items, and any other items
related to drugs.” [DE 73 at 9] The state court judge,
however, denied the officers' request to search for
firearms and ammunition.
with the search warrant, officers searched the garage bedroom
and located and seized evidence of illegal drug activity,
namely, marijuana, smoking pipes, and four digital scales.
Id. at 10. Officers also summoned ATF task force
agent Sheldon Scott to the scene “to come and seize the
firearms.” [DE 85 at 3] Scott then seized ammunition, a
suppressed rifle, a revolver, and a sawed-off shotgun. The
shotgun was sitting in plain view on top of a dresser or
cabinet in the bedroom.
stated at the outset, Ford seeks to suppress the shotgun
seized from his bedroom in the garage. He advances two main
legal arguments: first, that the officers conducted an
unreasonable protective sweep of the bedroom; and second,
that the officers later exceeded the scope of the search
warrant when they seized the shotgun. These arguments do not
persuade the Court.
first contests the officers' justification for conducting
a protective sweep of the bedroom inside the garage, during
which they detected the strong odor of marijuana that
provided probable cause for the subsequent search warrant. He
argues that the officers did not have grounds to conduct the
sweep because they had already completed their arrest of
Kendall outside the garage and because they had no reason to
believe that another person posing a threat could have
remained inside the bedroom. Although the officers did not
seize any evidence during their sweep, Ford argues that
because the sweep was not justified, any evidence seized
pursuant to the later search warrant must be excluded as
fruit of the poisonous tree.
‘protective sweep' is a quick and limited search of
premises, incident to arrest conducted to protect the safety
of police officers or others.” Maryland v.
Buie, 494 U.S. 325, 327 (1990). Officers do not need a
search warrant in order to conduct a protective sweep.
United States v. Henderson, 748 F.3d 788, 791 (7th
Cir. 2014). Instead, the Fourth Amendment permits a
protective sweep “if the searching officer possessed a
reasonable belief based on specific and articulable facts
which, taken together with the rational inferences from those
facts, reasonably warranted the officer in believing that the
area swept harbored an individual posing a danger to the
officer or others.” Buie, 494 U.S. at 327
(internal citations omitted). A protective sweep is
“not a full search of the premises, ”
id. at 335, and is “limited to a cursory
inspection into spaces where other assailants may be hiding
and must not last ‘longer than is necessary to dispel
the reasonable suspicion of danger.'”
Henderson, 748 F.3d at 791 (quoting id.).
inquiry into whether a protective sweep is reasonable
“is an exceptionally fact-intensive one in which we
must analyze myriad factors including, among other
considerations, the configuration of the dwelling, the
general surroundings, and the opportunities for ambush.
United States v. Starnes, 741 F.3d 804, 808 (7th
Cir. 2013) (citing United States v. Burrows, 48 F.3d
1011, 1016 (7th Cir. 1995)). Three factors guide this
inquiry: (1) the sweep must be based on more than a mere
inchoate and unparticularized suspicion or hunch regarding
the danger; (2) the search must be cursory, lasting no longer
than is needed to dispel the officers' reasonable
suspicion of danger; and (3) the search must be limited to a
cursory visual inspection of places where a person might be
hiding. Starnes, 741 F.3d at 804 (internal citations
case, officers surrounded the garage prior to executing an
outstanding arrest warrant on one of its occupants, Joshua
Kendall. Officers knew that Kendall had been previously
convicted of a crime of violence and considered him dangerous
and possibly armed. Officers also noticed security cameras
outside the garage, which would provide them reason to
suspect that their approach, movements, and positions were
under observation from inside the garage or from elsewhere,
and perhaps by Kendall himself. Four people exited from the
bedroom in response to the officers' ...