District court's order denying defendant's motion to suppress the firearm evidence obtained during a search of his residence conducted pursuant to a state search warrant for probation violations is reversed and remanded where: 1) the district court erred in holding that the protective sweep of defendant's apartment comported with the Fourth Amendment; 2) the government failed to present its protective sweep argument under the first and less stringent Buie test; and 3) even had it been preserved, a theory that the protective sweep occurred incident to an in-house arrest and involved an area immediately adjoining the place of defendant's arrest fails on its merits.
Argued: October 14, 2009
Decided and Filed: December 15, 2009
Opinion by Circuit Judge Griffin
For Appellant: Anne-Marie Moyes, Federal Public Defender's Office
For Appellee: Heather G. Childs, Assistant U.S. Attorney