51 F.3d 269 (4th Cir. 1995), 94-5391, U.S. v. Pettiford

Docket Nº:94-5391.
Citation:51 F.3d 269
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Shawn Lamont PETTIFORD, Defendant-Appellant.
Case Date:April 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 269

51 F.3d 269 (4th Cir. 1995)



Shawn Lamont PETTIFORD, Defendant-Appellant.

No. 94-5391.

United States Court of Appeals, Fourth Circuit

April 7, 1995

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued: March 9, 1995.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CR-94-1).



ARGUED: Reginald Moore Barley, Richmond, VA, for Appellant. Nicholas Stephan Altimari, Assistant United States Attorney, Richmond, VA, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Richmond, VA, for Appellee.

Before RUSSELL, WILKINSON, and WILLIAMS, Circuit Judges.



In this case we must determine whether law enforcement officers exceeded the scope of the "protective sweep" authorized by Maryland v. Buie, 494 U.S. 325 (1990), when, following an in-home arrest, they conducted a cursory search of the arrestee's bedroom closet for concealed assailants. Because we agree with the district court that the Sweep was authorized by Buie, we affirm.


On December 17, 1993, at approximately 5:30 a.m., officers of the Henrico County Police Department SWAT Team arrived at 307-D Imperial Drive, Henrico County, Virginia, to execute an arrest warrant for Carl Anthony Smith. A Drug Enforcement Administration Task Force officer had received information from a confidential informant that Smith was living in the Henrico County apartment. An investigation verified that information: Richmond, Virginia law enforcement files revealed several outstanding warrants for Smith charging him with, inter alia, possession of cocaine with intent to distribute, possession of a firearm while in possession of cocaine, possession of a sawed-off shotgun, and possession of a firearm by a convicted felon. The independent investigation also confirmed the description of Smith offered by the informant.

Based on this information, a Task Force officer obtained a warrant for Smith's arrest on the outstanding weapons and narcotics charges; the warrant provided leave for an exigent entry. Because the Task Force was aware of Smith's history of involvement with firearms, because Smith was a suspect in a homicide in another jurisdiction, and because the Task Force officers had information that individuals often answered the door at apartment 307-D while carrying firearms, the warrant was turned over to the Henrico County Police SWAT Team for execution.

The Task Force began surveillance of the apartment in the early morning hours of the 17th. Officers conducting the surveillance observed a high volume of traffic in and out of the apartment during the ensuing hours. Shortly before the SWAT Team entered 307-D, Task Force officers noticed the lights in the apartment go out. Despite the surveillance, however, the SWAT Team officers were unsure of the number of people they would find therein. Moreover, the Task Force had cautioned the SWAT Team that a woman and children might be present inside the apartment.

At approximately 5:30 a.m., ten SWAT Team officers entered the apartment pursuant to the warrant. According to a prearranged plan, the officers fanned out through the apartment in search of Smith. The plan further provided for a thorough "sweep" of the apartment to ensure that no other individuals inside the apartment posed a threat to the officers. The SWAT Team discovered Smith in one of the apartment's two bedrooms; appellant Shawn Lamont Pettiford was located in the other. At the time, the officers did not know which of the men was Smith. According to procedure, both men were handcuffed; Smith was placed on the floor of his bedroom while Pettiford was brought into the living room and seated in a chair.

During and immediately following the handcuffing of Smith and Pettiford, the SWAT Team executed the "sweep" of the apartment, during which officers assigned to various areas of the apartment examined closets, cabinets, and other spaces in which a potential assailant could conceal himself. The officers also conducted a search for weapons within the "grab area" of each defendant as permitted by Chimel v. California, 395 U.S. 752, 763 (1969) (allowing a search of the area within an arrestee's immediate control "from within which he might gain possession of a weapon or destructible evidence").

During the protective sweep, Officer J.R. Tucker III looked under the bed and into the closet in the bedroom in which Smith was apprehended. Upon looking into Smith's bedroom closet, Officer Tucker observed a waist-high pile of clothing "drifted" up to the back wall of the closet. As Tucker pushed the clothes aside, a large plastic bag secreted within the pile "fell out, and it came to rest in such a condition as [he] could look into it." When he peered into the bag, Tucker observed "three bundles of clear plastic wrapped around what appeared to be numerous other clear plastic...

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