33rd / 424th District Courts

U.S. v. Gould, No. 02-30629 (5th Cir. 2004)(majority opinion) or see
version including dissenting opinions



Case involves the "protective sweep" exception on an entry by police into a home. No contention of a "hot pursuit" exception or exigent circumstances exception. Assertion is of a valid "protective sweep" under Maryland v. Buie, 110 S.Ct. 1093 (1990). Government attempts to distinguish the limitation in i>U.S. v. Wilson, 36 F.3d 1298 (5th Cir. 1994) limiting the protective sweep when incident to arrest.



The 3-judge panel concludes to adhere to Wilson but encourages consideration of the case en banc to "consider whether this circuit should adhere to Wilson's ipso facto disallowance of all protective sweeps not incident to an arrest.



The Court then discusses the "knock and talk" entry and the possible necessity to follow that with a protective sweep. Also discussed is the fact that the Supreme Court's jurisprudence in the Fourth Amendment area has been based on reasonableness after balancing the individual's privacy with legitimate governmental interests. Indeed, a Terry search is analogous to a great degree with a protective sweep not incident to arrest.



Conclusion: The panel affirmed the district court's exclusion of the fruits of the protective sweep in this case. However, if they would not be in conflict with clear holdings of another panel of the 5th Circuit, this panel would have upheld the search. The call for an en banc consideration appears to be headed for possible approval of a protective sweep not incident to arrest.