That a few seconds passed after the officers began lowering their weapons and asking if the space was indeed clear is not enough, in our view, to transform the quick protective search into an unconstitutional one.
U.S. v. Riley
Sixth Circuit Appellate Court
May 30, 2025
Mr. Riley Threw His Mother Down and Stomped on Her Head
Barricaded Himself in His Room
Standoff
Surrender
Early one morning, Mr. Antoine Riley’s mother called 911 and reported that he had assaulted her in their home. When Columbus Police officers responded, she told them that Mr. Riley “had thrown her down on the ground and stomped her in the head and face several times.” Officers also observed her corroborating “visible injuries.” The officers then entered the home to contact Mr. Riley; he responded by barricading himself in his upstairs bedroom—his deadbolted door was just off the first floor living room, with stairs behind the door leading up to a small bedroom. During the almost two-hour standoff, officers learned Mr. Riley had guns in his bedroom. They also obtained warrants to arrest Mr. Riley for domestic violence and assault but did not obtain any search warrants. Before they could carry out the arrest warrants, Mr. Riley came downstairs and peacefully surrendered in the living room. What briefly happened next is central to this appeal.
Protective Sweep and Two Firearms in Plain View
Four officers began a protective sweep of Mr. Riley’s bedroom, which they captured on their body cameras. From the base of the stairs, Officer Kevin Kelley announced, “Columbus Police, make yourself known” and ascended to the bedroom with his service weapon drawn. Other officers followed. The bedroom was lofted and open with no door at the top of the steps. The officers briefly looked around the extremely cluttered and confined living space, including in a closet without doors. About twenty seconds after entering, officers can be heard saying “clear, clear” and “all clear” and started lowering their weapons. Kelley then asked whether anything was in “plain view.” Seconds later, Kelley discovered two firearms in an open cardboard box that was in the doorway of the open closet. All told, officers were in the bedroom for a little over one minute.
Mr. Antoine Riley refused to leave a bedroom at 2456 Lexington Avenue, Columbus, Ohio for nearly two hours before he finally surrendered. There were reports that Mr. Riley had a firearm inside the bedroom during his standoff. What transpired next would lead to federal firearms charges, a conviction and appeal.
Indictment and Conviction
A grand jury indicted Mr. Riley, a felon, for unlawfully possessing those two weapons under 18 U.S.C. § 922(g)(1). Mr. Riley moved to suppress the guns, asserting that the officers had exceeded their authority to engage in a protective sweep by looking for items in plain view after concluding the room was “clear” of potential threats. Following a hearing, the district court disagreed and denied his motion. A jury ultimately convicted Mr. Riley as charged, and he now appeals the denial of his motion to suppress.
Fourth Amendment and Established Case Law
The Fourth Amendment guarantees that “[T]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” and it provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. As a result, “a warrantless search is per se unreasonable subject only to a few specifically established and well-delineated exceptions.” United States v. Trice, 966 F.3d 506, 512 (6th Cir. 2020) (citation omitted). The government relies on one of those exceptions: the protective sweep.
There are two types of protective sweeps. “The first type allows officers to ‘look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.’” United States v. Archibald, 589 F.3d 289, 295 (6th Cir. 2009) (quoting Maryland v. Buie, 494 U.S. 325, 334 (1990)). This “first type of sweep requires no probable cause or reasonable suspicion.” Id. “The second type of sweep goes beyond immediately adjoining areas but is confined to . . . protective sweep[s] aimed at protecting the arresting officers.’” It requires “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.”
Mr. Riley’s Appeal
Mr. Riley primarily contends on appeal that the officers lacked authority to sweep the bedroom at all. He argues that neither type of protective sweep contemplated by Buie justifies the officers’ search of the room because (1) The room was not “immediately adjoining the place of arrest” and (2) No facts suggested another individual was in the bedroom. But that is not the argument he pressed in district court. In his motion to suppress, defendant did not contest the lawfulness of the protective sweep under Buie and instead argued that the “officers no longer had a lawful purpose to remain in the bedroom” after they “cleared” it and that “[A]s soon as the bedroom was cleared, the Government’s lawful right to be in the room ended.” To be sure, his briefing suggested a challenge under the second type of search; he wrote that “at no point in time did the officers hold a reasonable belief that another individual was present in the bedroom, making the protective sweep unnecessary in the first place.” But at the hearing on Mr. Riley’s motion, the district court clarified Mr. Riley’s argument, directly asking his counsel if she was “making the argument that there shouldn’t have been a protective sweep in the first place?” She responded: “Absolutely not. . . , the protective sweep is completely appropriate.” For this reason, the district court’s order on the motion to suppress states that “Mr. Mr. Riley did not contest the Officers’ right to conduct a protective sweep of the upstairs bedroom adjacent to his place of arrest.”
Defense Counsel Failed to Preserve the Buie Argument
Having affirmatively disclaimed any argument that the officers lacked the authority to enter his bedroom and sweep it under Buie, Mr. Riley waived any ability to advance the opposite argument on appeal. See, e.g., United States v. Akridge, 62 F.4th 258, 263 (6th Cir. 2023). And defense counsel’s questioning during the evidentiary hearing about the presence of others in the house was not enough to preserve the Buie argument. It was that line of inquiry that prompted the district court’s clarifying question on the officers’ authority to protectively sweep his bedroom. Therefore, we cannot review this waived argument.
How Long Should it Take for an Officer to Conduct a Protective Sweep?
We measure officer conduct objectively
We thus turn to Mr. Riley’s preserved claim on appeal—that the officers were no longer lawfully present in his bedroom when they discovered his firearms. 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 others.” Buie, 494 U.S. at 327. Such sweeps do not amount to “a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found” and may “[L]ast no longer than is necessary to dispel the reasonable suspicion of danger.” Id. at 335–36. While conducting a protective sweep, an officer may seize contraband found in plain view if its incriminating character is immediately apparent. See Horton v. California, 496 U.S. 128, 136 (1990). We measure officer conduct objectively. See Buie, 494 U.S. at 334.
Can an Officer Double Check Another Officer’s ‘Clear’ During a Protective Sweep?
The district court record demonstrated that the officers discovered the firearms while they were conducting a lawful protective sweep of the bedroom to ensure their safety. Although the officers said “clear” several times in the video, the district court did not find that the officers determined the room was clear before discovering the firearms. During the evidentiary hearing, the officers explained that using “clear” can mean that only a certain section of a room is clear. And one officer testified that he believed, based on his inquisitive tone, that he said, “clear” to ask the other officers if the room was clear in their view. The officers testified also that they holstered their guns situationally to avoid pointing weapons at one another in the tight quarters and that it was routine for them to “double-check” the work of others, especially given a recent event in which officers had “missed” someone hiding in a closet. The district court found this testimony “credible” and denied Mr. Riley’s motion to suppress because the officers “were in the bedroom no longer than . . . necessary.”
Conclusion and Holding
Viewing the facts in that light, we discern no clear error in the district court’s finding of fact that the officers were still sweeping Mr. Riley’s room when they saw his prohibited firearms in plain view. As depicted by the body cameras, officers entered a confined and cluttered space with many places for a person to hide. They swept the room no longer than necessary—less than one minute—and reasonably checked the work of others as they hastily ensured their safety. See, e.g., United States v. Taylor, 666 F.3d 406, 410–11 (6th Cir. 2012);United States v. Beals, 698 F.3d 248, 267 (6th Cir. 2012). That a few seconds passed after the officers began lowering their weapons and asking if the space was indeed clear is not enough, in our view, to transform the quick protective search into an unconstitutional one.
Information for this article was obtained from U.S. v. Riley, No. 24 – 3327.
U.S. v. Riley, No. 24 – 3327 was issued on May 30, 2025 by the Sixth Circuit Appellate Court and is binding in Kentucky, Michigan, Ohio and Tennessee.
Lessons Learned:
- Protective Sweep – On February 28, 1990 the U.S. Supreme Court issued Maryland v. Buie, 494 U.S. 325 (1990) that established the Protective Sweep Doctrine inside of a building. There is another Protective Sweep Doctrine inside a motor vehicle established by the U.S. Supreme Court in Michigan v. Long, 463 U.S. 1032 (1983). In Buie the court established two distinguishable Protective Sweeps. Both must begin with an in-home lawful arrest. In other words, the officer must lawfully be in the place where the arrest is being conducted. As the arrest is being completed the U.S. Supreme Court held “We … 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 a arrest from which an attack could be immediately launched.”. Id at 334 The second level of the BuieProtective Sweep Doctrine permit officers to extend the sweep “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 danger to those on the arrest scene.”. Id at 337. The second more intrusive Protective Sweep is based on information the officer obtains in the moment such as footsteps on another floor, noises or conversations overheard indicating that a person may be beyond the ‘spaces immediately adjoining the place of arrest” who may cause harm to the arresting officers. In both types of Protective Sweeps the search is singularly focused on looking for a human who may cause harm and must be reasonable in length as the Buie court opined “[L]ast no longer than is necessary to dispel the reasonable suspicion of danger.” at 335–36. For more on Maryland v. Buie, 494 U.S. 325 (1990) see Does this Red Jogging Suit Make Me Look Felonious?.
- Double Check – In this case, a domestic violence suspect had barricaded himself inside an upstairs bedroom for nearly two hours. Once Mr. Riley emerged from the room, the officers would have been negligent and committed an officer safety violation had they not cleared the room. Consequently, Officer Kevin Kelley and his teammates were both legally and tactically sound to have cleared the bedroom. It is common for one officer to check another officer to assure the first officer did not miss a suspect who may cause harm. The Sixth Circuit Appellate Court recognized these actions as safe “The officers testified also that they holstered their guns situationally to avoid pointing weapons at one another in the tight quarters and that it was routine for them to “double-check” the work of others, especially given a recent event in which officers had “missed” someone hiding in a closet. The district court found this testimony “credible” and denied Mr. Riley’s motion to suppress because the officers “were in the bedroom no longer than . . . necessary.”
- Buie Appeal – During the trial Mr. Riley’s defense counsel stated “[T]he district court clarified Mr. Riley’s argument, directly asking his counsel if she was “making the argument that there shouldn’t have been a protective sweep in the first place?” She responded: “Absolutely not. . . , the protective sweep is completely appropriate.” I do not believe that if the Buie appeal was permitted that it would have been successful for Mr. Riley. Officer Kelley and his teammates were lawful to assure the room was not occupied by a co-conspirator or predator since Mr. Kelley was reluctant to comply with his arrest for nearly two-hours.
- Plain View Doctrine – On Monday June 4, 1990 the U.S. Supreme Court issued Horton v. California496 U.S. 128 (1990) and established the Plain View Doctrine three-part test. 1) Law enforcement must be legally on the premises from where the observation is made. 2) Law enforcement must not violate the Fourth Amendment to make the observation. 3) The incriminating nature of the item must be immediately apparent. I will apply each of these elements in turn. Note: For more on the Plain View Doctrine see: Can an Incomplete Search Warrant Create a New Legal Doctrine?
- Pre-Sent Arms! Columbus Division of Police Officer Kevin Kelley and his teammates should be highly commended for ending this arrest peacefully and having the patience to wait out Mr. Riley. Well done!
Does your agency train on the Protective Sweep and Plain View Doctrines?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and objectively reasonable!