Case: 24-30457 Document: 68-1 Page: 1 Date Filed: 05/08/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 8, 2025
No. 24-30457
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Kirk August,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:23-CR-23-1
______________________________
Before King, Jones, and Oldham, Circuit Judges.
Edith H. Jones, Circuit Judge:
Kirk August pled guilty to one count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1). He reserved the right
to argue in this appeal that the district court should have granted his motion
to suppress evidence. Finding no error, we AFFIRM.
I. Factual Background
On May 14, 2022, the Lake Charles Police Department received a call
about gunshots on the 700 block of N. Lyons Street, a residential street in
Lake Charles, Louisiana. Officers Baccigalopi, Bernat, and Rainwater
Case: 24-30457 Document: 68-1 Page: 2 Date Filed: 05/08/2025
No. 24-30457
responded. Baccigalopi arrived on scene and spoke with the caller, who
pointed him to the blue home where August resided.
Baccigalopi, Bernat, and Rainwater descended on the home at
virtually the same time. Baccigalopi and Bernat approached August’s home
through the next-door neighbor’s property, and they encountered August
standing in his backyard behind a chain-link fence. The backyard was
cluttered with junk, which officers believed gave August ample cover to hide
a weapon. A top-down convertible was parked in his driveway with the
driver-side door left ajar and music playing from the radio. Mattresses were
stacked against the main door to the home, preventing it from being used as
an entrance.
Baccigalopi spoke with August while still standing on the neighbor’s
side of the fence. He asked August whether he had heard gunshots or had
any “weapons or anything” on the property. August responded “no” to
both of Baccigalopi’s questions. Meanwhile, Rainwater had gotten held up
in a conversation with the next-door neighbor, who explained to Rainwater
that she had “just now” seen August firing a handgun in his backyard.1 The
neighbor also stated that August discharged firearms in his backyard
frequently, and that stray bullets had previously struck her home. Rainwater
promptly informed his colleagues that August might have a firearm.2
_____________________
1
Rainwater had assisted in executing a search warrant at August’s home a year
earlier when police located a .22 revolver in the home.
2
This information was enough to give the officers reasonable suspicion that a crime
had been committed. La. Rev. Stat. 14:94 prohibits the discharge of a firearm in a
residential neighborhood. See United States v. LeJeune, 2021 WL 3926154, at *2
(W.D. La. 2021). And the officers were all aware soon after arriving at the scene that
August was a felon barred from possessing a firearm.
2
Case: 24-30457 Document: 68-1 Page: 3 Date Filed: 05/08/2025
No. 24-30457
Baccigalopi—still on the neighbor’s side of the fence—then ordered
August to walk backward with his hands on his head toward the fence.
August was patted down, and no weapon was found on his person. He
remained near the fence this entire time. Rainwater and Bernat entered the
backyard and began conducting a protective sweep. Bernat testified that they
entered the backyard “mostly” for safety reasons: “There was a lot of junk
behind the house . . . So if he did have a firearm within close proximity, I’d
rather be on that side.” During the protective sweep, Bernat discovered shell
casings on the ground and a large sign riddled with bullet holes. He returned
to where August was standing and handcuffed him. August continued to
contend that there was no gun on the property.
The government maintains that officers next decided to seek a warrant
authorizing them to search the property. The officers knew they would have
to remain at the scene while they waited for the warrant application’s
approval. Given that none of them had been able to locate the alleged
firearm—and having little reason to trust August’s claim that the house was
empty—police decided to conduct a protective sweep of the home. But the
only accessible door was locked. August told police that his sister had the
only set of keys, which contradicted his previous statement that he had been
taking a bath before police arrived.
Baccigalopi walked over to the vehicle parked in the driveway and
removed August’s keys from the ignition. While doing so, Baccigalopi
noticed a baggie of methamphetamine in plain view near the center console.
August was secured in the back of Baccigalopi’s police vehicle. Officers then
used the keys that were retrieved from the car to enter a side door of the
house and conduct a protective sweep. The sweep lasted approximately
three minutes, during which the officers located a magazine clip for a firearm.
Baccigalopi and Bernat returned to the convertible. Bernat found a gray
3
Case: 24-30457 Document: 68-1 Page: 4 Date Filed: 05/08/2025
No. 24-30457
plastic bag containing ammunition inside the side pocket of the open driver’s
door. Bernat stated that the ammunition itself was not in plain view.
Satisfied that they were not in imminent danger by remaining on the
scene, police formally requested a search warrant for August’s entire
property. They remained on the scene until after they received and executed
the warrant. Their search of August’s property ultimately yielded a .22
caliber rifle, .410 shotgun, and ammunition.
II. Procedural Background
August was charged with violating 18 U.S.C. § 922(g)(1) for
knowingly possessing a firearm in and affecting commerce while knowing he
had been convicted of a crime punishable by imprisonment for a term
exceeding one year. The district court denied a motion by August to dismiss
the indictment. August moved to suppress nearly all of the relevant evidence:
(1) shell casings found in the backyard; (2) the magazine clip found in the
home; (3) ammunition found in the car; and (4) firearms found in the home.
A magistrate judge issued a report and recommendation that suggested the
district court should deny the motion to suppress, reasoning that protective
sweeps of the backyard and home were justified by exigent circumstances,
and that any constitutional defect pertaining to the car search was excused
under the independent source doctrine. The district court adopted the
report and recommendation in full. August pled guilty but reserved the right
to argue that the district court should have granted his motion to suppress.
The district court sentenced August to 63 months in prison and three years
of supervised release.
III. Standard of Review
When considering a district court’s denial of a motion to suppress,
this court reviews the district court’s factual findings for clear error and legal
conclusions de novo. United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010).
4
Case: 24-30457 Document: 68-1 Page: 5 Date Filed: 05/08/2025
No. 24-30457
A few words on the Fourth Amendment doctrines that the district court
relied on, and then on how the standard of review applies to those doctrines.
A. Protective Sweep Doctrine
Under the protective sweep doctrine, police may conduct, without a
warrant, “a quick and limited search of premises for the safety of the agents
and others present at the scene.” United States v. Mendez, 431 F.3d 420, 428
(5th Cir. 2005) (citation omitted). A protective sweep is lawful if:
(1) the government agents have a legitimate law enforcement
purpose for being in the house [or curtilage]; (2) the sweep is
supported by a reasonable, articulable suspicion that the area
to be swept harbors an individual posing a danger to those on
the scene; (3) the sweep is no more than a cursory inspection
of those spaces where a person may be found; and (4) the sweep
lasts no longer than is necessary to dispel the reasonable
suspicion of danger and lasts no longer than the police are
justified in remaining on the premises.
Id. (internal quotation marks and citation omitted). See also United States v.
Mendoza–Burciaga,
981 F.2d 192, 196 (5th Cir. 1992) (explaining that exigent
circumstances provide officers a legitimate law enforcement purpose to
conduct a warrantless entry when “officers reasonably fear for their safety,
where firearms are present, or where there is risk of a criminal suspect's
escaping or fear of destruction of evidence”) (citations omitted).
In evaluating the legality of a protective sweep conducted because of
exigent circumstances, courts consider how “the scene of the search . . .
would appear to reasonable and prudent men standing in the shoes of the
officers.” United States v. Menchaca-Castruita, 587 F.3d 283, 290 (5th Cir.
2009) (internal quotation marks and citation omitted). Where “reasonable
minds could differ on [] whether the sweep was warranted,” courts “do not
5
Case: 24-30457 Document: 68-1 Page: 6 Date Filed: 05/08/2025
No. 24-30457
second-guess the judgment of experienced law enforcement officers
concerning the risks in a particular situation.” United States v. Silva, 865
F.3d 238, 242 (5th Cir. 2017) (citation omitted).
In the context of appellate review, protective sweep cases present
mixed questions of law and fact, with the ultimate issue of whether there was
reasonable suspicion of danger being subject to de novo review. United States
v. Scroggins, 599 F.3d 433, 441 (5th Cir. 2010). This court, however, “view[s]
the evidence [going toward reasonable suspicion] in the light most favorable
to the party prevailing below, which in this case is the Government,” and
gives “due weight to inferences drawn from those facts by . . . local law
enforcement officers.” United States v. Henry,
853 F.3d 754, 756
(5th Cir. 2017) (internal quotation marks and citations omitted).
B. Independent Source Doctrine
Under the independent source doctrine, “‘information which is
received through an illegal source is considered to be cleanly obtained when
it arrives through an independent source.’” United States v. Hearn, 563 F.3d
95, 102 (5th Cir. 2009) (quoting Murray v. United States,
484 U.S. 533, 538–
39,
108 S. Ct. 2529, 2534 (1988)). This court conducts a two-step analysis to
determine whether the independent source doctrine cures an issue when
police subsequently obtain a warrant, asking whether (1) “the warrant
affidavit, when purged of tainted information gained through the initial
illegal entry, contain[ed] sufficient remaining facts to constitute probable
cause”; and (2) “the illegal search affect[ed] or motivate[d] the officers’
decision to procure the search warrant.”
Id. (citation omitted).
In the context of appellate review, this court reviews de novo a district
court’s determination that a search warrant affidavit establishes probable
cause after the warrant has been purged of potentially “tainted” information,
and it reviews for clear error a district court’s findings regarding whether an
6
Case: 24-30457 Document: 68-1 Page: 7 Date Filed: 05/08/2025
No. 24-30457
unlawful prior search or entry motivated officers’ decision to obtain a
warrant. See United States v. Hassan, 83 F.3d 693, 697 (5th Cir. 1996)
(citations omitted).
IV. Analysis
August contends that law enforcement erred at every step of their
operation: (1) the protective sweep of his backyard; (2) the protective sweep
of his home; (3) searches of his car; and therefore (4) the execution of a
search warrant in his home. His claims pertaining to each of these searches
are considered in turn.
A. Protective Sweep of the Backyard
August argues that the protective sweep doctrine did not justify the
search of his backyard because police hopped the gate and did not stay nearby
to prevent him from grabbing a weapon but continued to search beyond his
immediate vicinity. August does not cite an apposite case to support his
argument that the protective sweep of his backyard was unlawful. His
argument fails.
August was not arrested until after law enforcement officers had
located shell casings and concluded their protective sweep of his yard. He
acknowledged in his objection to the report and recommendation that his
lawn was “surrounded by hurricane fencing and filled with spillover objects
from the home’s interior.” Without a protective sweep of the entire
backyard, it remained possible that someone else might be present, or that
August’s questioning might end without an arrest, at which point he could
have accessed a firearm hidden in the yard.
Police had reasons to distrust August’s insistence that there was no
firearm on the property: their knowledge of his felon status, and his direct
contradictions during their limited encounter. And the presence of a gray
7
Case: 24-30457 Document: 68-1 Page: 8 Date Filed: 05/08/2025
No. 24-30457
convertible in the driveway—top down, driver door left ajar, keys still in the
ignition, and music playing from the radio—was potentially suggestive of a
recent visitor’s arrival or a third party’s presence, especially because August
claimed he had just been taking a bath before officers arrived. The chaos,
contradictions, and incredible story that August attempted to sell the
officers, when considered together and in the light most favorable to the
government, made it completely reasonable for police to fear that someone—
or something—else hiding in August’s backyard posed a serious threat to
their safety.
August has failed to show that the protective sweep of his backyard
was unlawful. The district court did not err in its refusal to suppress the spent
shell casings.
B. Protective Sweep of the Home
August argues that the protective sweep doctrine did not justify a
search of his home because “officers had been safely outside the home for
almost seven minutes” when they decided to enter, “officers had already
isolated August,” and “there was nothing to suggest that destruction of
evidence was likely or that anyone even remained in the home.” His
argument relies primarily on United States v. Manchaca-Castruita, 587 F.3d
283 (5th Cir. 2009), where this court held that exigent circumstances could
not justify police sweeping a home suspected of storing illegal marijuana
because there was no evidence that any person remained inside the home,
officers stood safely outside with bystanders even further removed from the
home, and a search warrant could readily have been obtained.
Id. at 294–95.
This case is different. Unlike Manchaca-Castruita, (1) the suspected
contraband—firearms—could be used to jeopardize the safety of law
enforcement; (2) the suspect had not left the home, denied any personal
knowledge of a firearm, and contradicted himself to police, and a car
8
Case: 24-30457 Document: 68-1 Page: 9 Date Filed: 05/08/2025
No. 24-30457
appeared to have recently arrived, which introduced the possibility that
another person on the property possessed a firearm; (3) there were no
witnesses who had been inside of August’s home to confirm whether
accomplices were inside; (4) the door to August’s home was closed,
suggesting there was no last-minute escape; (5) nobody at the property
received a warning that law enforcement was being contacted, likely
frustrating plans for a last-minute escape; (6) the spent shell casings in the
backyard confirmed that a firearm had probably been discharged at some
point on the property; and (7) the incident occurred on the weekend,
potentially making it more difficult for officers to communicate with a
magistrate and to obtain a search warrant. See id. at 285–88, 294.
Case law tends to reflect that exigent circumstances are unlikely to
exist if there is “no articulable reason to believe that someone else might be
inside [the] residence.” Id. at 295. See also United States v. Carter,
360 F.3d
1235, 1241 (10th Cir. 2004) (granting motion to suppress) (“[T]he
government points to no reason to believe that other people were in the
garage, or even the house.”) (emphasis added). The outcome is typically
different, though, if law enforcement had at least a reasonable belief that
another dangerous person might be hiding in the residence that they decided
to sweep. See United States v. Watson,
273 F.3d 599, 603 (5th Cir. 2001) (“A
protective sweep of a suspect’s house may be made . . . if the arresting officers
‘have reasonable grounds to believe that there are other persons present
inside who might present a security risk.’”) (quoting United States v. Merritt,
882 F.2d 916, 921 (5th Cir. 1989) (internal citation omitted)); United States
v. Maldonado,
472 F.3d 388, 394 (5th Cir. 2006) (determining that a
protective sweep was justified based in part on the fact that agents were
exposed in an open area surrounding a trailer with “no certain knowledge”
whether others might be in the trailer) (subsequent history omitted).
9
Case: 24-30457 Document: 68-1 Page: 10 Date Filed: 05/08/2025
No. 24-30457
It cannot be said that police had no articulable reason to fear that
someone remained in August’s home. After sweeping his backyard, the
officers knew that (1) at least two neighbors heard gunshots, and the next-door neighbor reported seeing someone on the property firing a weapon;
(2) spent shell casings littered the backyard; (3) August had little to no
credibility; (4) a car that looked as if it had just arrived was parked in the
driveway; and (5) most entry points to the house were barricaded. See, e.g.,
United States v. Cousins, 841 F. App’x 885, 899 (7th Cir. 2021) (noting that
an occupant’s “nervous” and “evasive” demeanor when questioned by
officers supported a protective sweep of a home, especially when police are
already aware of a firearm’s presence on the property). It makes no
difference that officers chose to investigate these concerns only after
arresting August. See Maryland v. Buie,
494 U.S. 325, 333 (1990) (“[T]here
is an analogous interest . . . in [officers] taking steps to assure themselves that
the house in which a suspect . . . has just been[] arrested is not harboring other
persons who are dangerous and who could unexpectedly launch an attack.”).
Any remaining doubt as to the reasonableness of the officers’ concerns is
dispelled by the deferential review that police are entitled to in this context.
See Silva,
865 F.3d at 242 (protective sweep standard) (where “reasonable
minds could differ on . . . whether the sweep was warranted,” a court will not
“second-guess the judgment of experienced law enforcement officers”);
Henry,
853 F.3d at 756 (appellate review standard) (this court views the
evidence going toward reasonable suspicion “in the light most favorable to
the party prevailing below,” and gives “due weight to inferences drawn from
those facts by . . . local law enforcement officers”).
10
Case: 24-30457 Document: 68-1 Page: 11 Date Filed: 05/08/2025
No. 24-30457
August has failed to show that the protective sweep of his home was
unlawful. The district court did not err in its refusal to suppress the magazine
clip.3
C. Searches of the Car
August argues that law enforcement twice violated the Fourth
Amendment in connection with their searches of the car parked in his
driveway. Officer Baccigalopi walked over to the car and retrieved the keys
from the ignition after August claimed that his sister had the only key to the
house. He noticed a baggie of illicit drugs when he reached for the keys.
Police returned after sweeping the backyard and the home. They conducted
a more thorough search of the car, recovering methamphetamine and
ammunition. The magistrate judge held that the independent source
doctrine excused any constitutional defect in these searches of the car
without analyzing whether the searches were in fact constitutional. We
similarly limit our discussion to applicability of the independent source
doctrine due to insufficient briefing as to whether (1) the protective sweep
doctrine could justify the police entering the car, (2) the driver’s side door’s
being left open removed any expectation of privacy, or (3) either the
protective sweep doctrine or plain view doctrine authorized law enforcement
to acquire the keys.
August argues that the independent source doctrine cannot cure
defects in the car searches because (1) there would be no probable cause
supporting the warrant without the magazine clip (which was obtained using
the house keys that were retrieved during the first car search) and
ammunition (which was recovered during the second car search), and (2) the
_____________________
3
The magazine clip was alternatively admissible under the independent source
doctrine as discussed below.
11
Case: 24-30457 Document: 68-1 Page: 12 Date Filed: 05/08/2025
No. 24-30457
magazine clip and ammunition compelled the officers to pursue a search
warrant.4 His argument proves unpersuasive.
First, aside from mentioning the magazine clip and ammunition, the
search warrant affidavit noted that law enforcement officers responded to a
report of multiple shots fired in the area; another witness advised police
officers that she observed the resident of 710 N. Lyons outside with a firearm;
officers observed multiple spent shell casings on the property of the
residence; officers located Kirk August at the residence; and officers
confirmed that August stays at the residence.
“Probable cause does not require proof beyond a reasonable doubt.”
United States v. Perez, 484 F.3d 735, 740 (5th Cir. 2007). “[A] magistrate
need only have a substantial basis for concluding that a search would uncover
evidence of wrongdoing.”
Id. Scrubbed of the allegedly tainted magazine
clip and ammunition, and considering the issue de novo, the warrant affidavit
still contained sufficient remaining facts to provide the magistrate a
substantial basis for concluding that a search would uncover evidence of
wrongdoing. The magistrate could reasonably infer from eyewitness
testimony and shell casings on the property that August had discharged a
firearm in violation of Louisiana law.5
_____________________
4
August also argues that the search warrant would not have been granted without
police locating the shell casings in his backyard. However, police clearly did not violate the
Constitution in conducting the protective sweep that produced the shell casings.
5
Cf. United States v. Coleman, 540 F. Supp. 3d 596, 611 (S.D. Miss. 2021) (holding
that search warrant was not supported by probable cause) (“The affidavit includes the
informant’s statement that Coleman discharged a firearm on the property against an
intruder ‘several weeks ago.’ But the affiant does not state how the informant obtained this
information, whether by personal observations or from an eyewitness.”); United States v.
Wooldridge,
2016 WL 11473559, at *6 (E.D. Tex. Apr. 22, 2016) (same) (“Here, the search
warrant affidavit describes in detail the particular place to be searched and is appropriately
limited in scope[.] However, the affidavit fails to provide the state judge with facts from
12
Case: 24-30457 Document: 68-1 Page: 13 Date Filed: 05/08/2025
No. 24-30457
Second, August contends “it was not until after the officers searched
the home and car, finding a magazine and ammunition, that the officers
requested a search warrant.” But the district court’s determination that the
“tainted” magazine clip and ammunition evidence did not influence the
officers is a finding of fact that must stand unless clearly erroneous. And
there is ample evidence in the record to support it. For example, officers
arrested August immediately after they located spent shell casings in the
backyard. At that point, probable cause existed to obtain a proper search
warrant. Police retrieved house keys to access the home and reported that
they swept the home to secure the area while they waited for a search
warrant. This narrative accords with the warrant affidavit, which noted that
officers “cleared the residence . . . for safety and to check for any injured
parties.” August has not identified any substantial evidence that
undermines this narrative. The district court did not clearly err by
determining that officers decided to seek a search warrant after they
discovered the spent shell casings but before they discovered the magazine
clip or ammunition.
To summarize why the district court did not err in applying the
independent source doctrine: The magazine clip and ammunition were not
necessary to establish probable cause and did not motivate the officers to
obtain a search warrant. The magistrate issued a search warrant that
authorized police to search all property located at 710 N. Lyons Street,
including the “interior of the residence, vehicles located on the property,
and curtilage of the property.” This encompassed the areas where the
magazine clip and ammunition were located. The independent source
doctrine permits the magazine clip and ammunition to be introduced as
_____________________
which he could infer that the firearm was contraband, that it had been used in a crime,
and/or that it was linked to any wrongdoing.” (citation omitted)).
13
Case: 24-30457 Document: 68-1 Page: 14 Date Filed: 05/08/2025
No. 24-30457
evidence in these circumstances regardless whether the initial car searches
were lawful.
D. Execution of Search Warrant
The district court correctly allowed the firearms to be admitted into
evidence because the firearms were recovered through the execution of a
valid search warrant that was obtained without regard to bad acts by law
enforcement. The district court could have alternatively admitted the
“smoking gun” in this case under the good-faith exception to the
exclusionary rule. Under that exception, “if the evidence was obtained by
law enforcement officers who relied on the warrant in objectively reasonable
good-faith, then the evidence obtained during the search is admissible.”
United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010) (citation omitted).
“This is true even if the evidence in the affidavit . . . was not sufficient to
establish probable cause.”
Id.
August offers scant evidence of bad faith, primarily relying on
exchanges captured by officer body-cam footage that indicate several officers
had a negative opinion of August due to previous interactions with him. But
this evidence fails to move the needle because the good-faith inquiry is
strictly objective. See United States v. Massi, 761 F.3d 512, 530 (5th Cir. 2014)
(“In determining whether the good faith exception applies, ‘we do not
attempt an “expedition into the minds of police officers” to determine their
subjective beliefs regarding the validity of the warrant.’” (citations
omitted)).
August does not even attempt to allege that it was objectively
unreasonable to rely on the warrant. Nor could he. This is not a case in
which “the magistrate . . . was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his reckless
disregard of the truth.” United States v. Leon, 468 U.S. 897, 923,
104 S. Ct.
14
Case: 24-30457 Document: 68-1 Page: 15 Date Filed: 05/08/2025
No. 24-30457
3405, 3421 (1984) (citation omitted). It is not a case in which the issuing
magistrate “wholly abandoned his judicial role,” or the warrant was based on
an affidavit “so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable.” Id. (internal quotation marks and
citations omitted). And it is not a case in which the warrant is “so facially
deficient . . . that the executing officers [could not] reasonably presume it to
be valid.”
Id. The good-faith exception therefore supports admitting the
firearms into evidence even if there were a defect in the warrant.
V. Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
15
