Submitted: May 12, 2017
from United States District Court for the District of
Nebraska - Omaha
RILEY, BEAM, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Alatorre entered a conditional guilty plea to the charge of
being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g) and 924(a)(2). He appeals the
district court's denial of his motion to suppress evidence
found in plain view during a warrantless search of his home.
Alatorre contends that the officers' "protective
sweep" was unjustified because he had already been
arrested and secured on the front porch leaving the arresting
officers without a reasonable belief that his home harbored
individuals posing a danger to them. Having jurisdiction
under 28 U.S.C. § 1291, we affirm.
after 6 a.m. on November 26, 2014, eight members of the Metro
Area Fugitive Task Force ("Task Force") executed a
warrant for Alatorre's arrest at his residence. The Task
Force included Omaha police officers and United States
to leaving the police station that morning, the Task Force
members attended a pre-arrest briefing where they were
informed that Alatorre was being arrested because he
allegedly assaulted someone with a baton outside an Omaha
bar. They were also briefed on Alatorre's past criminal
history, which included carrying and concealing firearms. The
Task Force determined that Alatorre presented sufficient risk
to their safety that use of a ballistic shield would be
required during execution of the warrant. Officers later
testified that the ballistic shield is used in high-risk
operations where there is a history of gun violence,
concealed weapons, or gang activity. The ballistic shield was
described as a hand-held, solid, protective barrier measuring
two-feet by four-feet and designed to stop handgun rounds.
the arrest warrant execution, four officers approached
Alatorre's front door with the ballistic shield in front
in a formation designed to maximize officer safety. Other
Task Force members covered the back and sides of the house.
First, the officers just knocked on the door. In response,
the officers testified that they heard and saw movements in
the residence consistent with multiple people inside, but the
officers could not tell how many people were moving around
behind the closed door and blinds. The officers also heard
voices suggesting more than one person was present to
participate in a conversation or hear instructions. Someone
suspiciously came to the door and then retreated.
the officers knocked again and announced, "Police with a
warrant. Come to your door." Alatorre did not
immediately respond, so the officers knocked-and-announced at
least two more times after the delay. Alatorre finally opened
the front door, and officers quickly placed him in handcuffs
and removed him to the porch. When asked if anyone else was
inside, Alatorre said, "My girlfriend." The
officers could not see anyone from the front door. An officer
shouted, "Anyone else inside, come to the door."
The girlfriend came out of the kitchen and to the front door.
She was immediately pulled outside onto the porch with the
officers. She said there was no one else inside. The officers
had experience with some arrestees lying to them in the past
about the presence of others inside a residence.
testified that the Task Force remained concerned for their
safety due to uncertainty as to the number of people inside
because of the noises from inside the house heard prior to
the door opening, the movements minimally visible through the
blinds before the door opened, the quiet voices heard inside,
and the hesitancy of the occupants to open the door.
Therefore, three of the officers entered the residence behind
the ballistic shield to conduct a protective sweep to locate
anyone else inside who could harm the arresting officers. The
officers opened two closed doors immediately adjacent to the
front living area and checked the rooms where a person could
hide. After the living room and the two adjacent rooms were
cleared, they turned to the kitchen. Two guns were visible in
plain view on a shelf near the kitchen, along with
ammunition, a line of white powder, a marijuana "joint,
" a bag of mushrooms, and other drug paraphernalia.
Finding no one inside, the sweep ended after about two
minutes, and the officers left the residence.
upon the officers' observations of guns and drugs in
plain view during the protective sweep, the residence was
secured, and a search warrant was obtained for the residence.
Officer Michael Dose, who was in charge of Alatorre's
case but was not a member of the Task Force, conducted the
search. In addition to the items seen during the protective
sweep, Dose also seized a Taurus 9 millimeter handgun from
beneath a couch.
entered a conditional plea of guilty to the charge of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g) and 924(a)(2), preserving his right to
appeal the denial of his motion to suppress. Alatorre now
appeals the denial of his motion to suppress, contending that
the protective sweep was unconstitutional and that the
testimony as to the observations of the entering officers and
the items seized during execution of the subsequent search
warrant should be suppressed as tainted fruit of an
unconstitutional warrantless search.