In U.S. v. Noriega, No. 10-12480 (April 11, 2012),
http://www.ca11.uscourts.gov/opinions/ops/201012480.op2.pdf
the Court remanded a case to the trial court for additional factfindings regarding a suppression issue.
Alabama police, acting on a tip, obtained a warrant to search a house, and found a marijuana growing operation at this location. The police then arrived at a second home the tip had mentioned, and, without a search warrant, conducted a protective sweep of the property, and found evidence of a second growing operation. The police then obtained a warrant.
Before trial, the defendants moved to suppress the items found in the second search, arguing that the protective sweep was conducted without the requisite search warrant. The Court noted that even if the protective sweep was not permitted, the evidence could have been properly admitted if was obtained from an "independent source." Relying on this doctrine required excising from the second search warrant affidavit any information gained during the arguably illegal initial entry, and determining whether the remaining information sufficed to support a probable cause finding. If the police would have sought a warrant anyway, without regard to what they discovered during their protective sweep, the district court did not err in denying the motion to suppress. Because the district court made no finding on this issue, and it is its role, not the Court of Appeals’, to find facts, the Court remanded the case for this factfinding. If the police would not have sought the warrant anyway, the Court would decide whether the protective sweep violated the Fourth Amendment.
The panel retained jurisdiction over the appeal pending the district court’s factfinding.
