U.S. v. Pettiford
| Citation | 51 F.3d 269 |
| Decision Date | 09 March 1995 |
| Docket Number | No. 94-5391,94-5391 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Shawn Lamont PETTIFORD, Defendant-Appellant. . Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
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) ().
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 packages containing some kind of rocky, chunky substance." Tucker testified that he moved the bag no further before bringing his discovery to the attention of his supervisor, then-Sergeant Christopher S. Alberta. Sergeant Alberta advised Tucker to leave the bag alone and continue with his sweep. During the sweep and "grab area" searches, the SWAT Team officers discovered large amounts of cash, a beeper, a Rolex watch, and a razor blade in plain view on Smith's bedside dresser; Pettiford directed the officers to a Tec-9 semiautomatic pistol and loaded magazine hidden under his bed.
Based on the evidence discovered during the initial sweep of the apartment, including the bag of cocaine found in the bedroom closet, Task Force agents sought and obtained a search warrant authorizing a search of the premises for controlled substances, money, weapons, records, and any other items used in or derived from the illicit sale and distribution of cocaine. This search warrant was executed shortly after 7:30 a.m. on the morning of the 17th. During this second and more extensive search, officers examined the gray plastic bag from Smith's closet and found that it contained in excess of five pounds of crack cocaine. The search also revealed, among other things, additional large quantities of crack cocaine, various papers belonging to both Pettiford and Smith, photographs of women smoking what appeared to be crack cocaine, and a set of electronic scales.
On January 4, 1994, a federal grand jury indicted Pettiford and Smith for possession with intent to distribute in excess of fifty grams of crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; the indictment also charged Pettiford with carrying a firearm in relationship to the commission of a felony in violation of 18 U.S.C. Sec. 924(c)(1) and Sec. 2. On February 25, 1994, Pettiford filed a motion to suppress evidence obtained during the December 17, 1993, search, including the bag of cocaine found in Smith's closet. Following a suppression hearing, at which several Task Force and SWAT Team agents testified as to the events of December 17th, the district court denied Pettiford's motion....
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Walsh v. Gilliam
...494 U.S. at 333). That limited inspection 'is narrowly confined to a cursory visual inspection of those places." United States v. Pettiford, 51 F.3d 269 (4th Cir. 1995) (quoting Buie, 494 at 237. Law enforcement officers also are allowed to conduct a limited protective search "of the area w......