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Click here for the full text of this decision FACTS:In this felon-in-possession prosecution, the government appeals the district court’s granting of the motion to suppress filed by defendant-appellee Kelly Donald Gould. HOLDING:Reversed. The court recognizes that, as stated in United States v. United States District Court, 92 S.Ct. 2125 (1972), “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” and “the Fourth Amendment has drawn a firm line at the entrance to the house.” However, Maryland v. Buie, 110 S.Ct. 1093 (1990), makes clear that that worthy principle does not preclude application in the in-home sweep context of the general reasonableness standard calculated by balancing the intrusion on Fourth Amendment interests against the promotion of legitimate governmental interests, including those of officer safety. Applying this balancing principle, and mindful of Buie’s heavy reliance on Terry v. Ohio, 88 S.Ct. 1868 (1968), and Michigan v. Long, 103 S.Ct. 3469 (1983), neither of which involved an arrest, the court holds that arrest is not always, or per se, an indispensable element of an in-home protective sweep, and that although arrest may be highly relevant, particularly as tending to show the requisite potential of danger to the officers, that danger may also be established by other circumstances. The court notes in this connection the statements in Long that “if a suspect is ‘dangerous,’ he is no less dangerous simply because he is not arrested”, and “the officer remains particularly vulnerable in part because a full custodial arrest has not been effected.” Having held that an in-home protective sweep is not necessarily or per se invalid, regardless of other circumstances, merely because it is not incident to an arrest, the court accordingly disapproves of the language to the contrary in United States v. Wilson, 36 F.3d 1298 (5th Cir. 1994). The district court erred as a matter of law in holding, in its understandable reliance on the language in Wilson that a protective sweep could never be valid, regardless of other circumstances, unless incident to an arrest, and on that sole basis granting the motion to suppress. The court declines to adopt any across-the-board rule that a protective sweep can never be valid where the initial entry to the home is pursuant to consent, even where the consent does not of itself legally authorize the entry into the area swept. Applying the standards and limitations articulated in Buie and the general reasonableness criteria of the Fourth Amendment, the court concludes that the protective sweep here was valid. OPINION:Garwood, J.; before King, C.J., Garwood, Jolly, Higginbotham, Davis, Jones, Smith, Wiener, Barksdale, Emilio M. Garza, DeMoss, Benavides, Stewart, Dennis, Clement and Prado, JJ. CONCURRENCE AND DISSENT: Jolly, J. “It seems to me that if the door to the bedroom had been closed � or even if Gould had been in the room � the search could have been justified by the majority on basically the same grounds (risk of ambush, etc.) it has used to justify the search of an open room in the absence of the subject.” DISSENT: Jerry E. Smith, J.; “The majority opinion creates a new exception to the Fourth Amendment that is overly broad and unnecessary. The district court’s granting of the motion to suppress in this case should be affirmed. For these reasons, I respectfully dissent.”

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