Nashville police went to the residence of Derrick Archibald to serve an arrest warrant. It took approximate ten minutes from the time they knocked on the door for Archibald to open the door. During that time the officer nearest the door only heard one person inside.

When Archibald opened the door an officer momentarily stepped inside the residence, grabbed him, pulled him outside, handcuffed him and arrested him. Then officers conducted a protective sweep of the unit. During the sweep the officers found cocaine on a table. They used the cocaine to show probable cause for a search warrant. Whille searching the residence pursuant to the search warrant they found a gun. He was charged with being a convicted felon in possession of a gun.

In Maryland v. Buie

the Supreme Court . . . identified two types of warrantless protective sweeps of a residence that are constitutionally permissible immediately following an arrest. 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.’ . . . The second type of sweep goes “beyond” immediately adjoining areas but is confined to “such a protective sweep, aimed at protecting the arresting officers. ‘. . . The first type of sweep requires no probable cause or reasonable suspicion, while the second 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.’

Before the Sixth Circuit Court of Appeals the government argued both Buie prongs. But the court found that the government had not argued that the search was permissible under the first prong which does not require probable cause but which does require the search to be in an area adjacent to the arrest before the District Court and therefore it waived the argument.

But in any case the court found that the search of the residence did not meet either Buie prong and therefore the search warrant was not based upon probable cause and the gun must be suppressed. It did not meet the first prong because the arrest occurred in the doorway and therefore the`search of the entire unit was not in the`area immediately adjacent to the arrest. Nor did it meet the second prong. The officers did not have articulable facts to base a reasonable belief upon that there was another person in the residence. The government’s argument that Archibald was a dangerous criminal is not relevant since it is not related to the requirement that there be facts showing that the officers were in danger from other people in the unit.