U.S. v. Ford, 94-3057

• Decision Date: 09 June 1995
• Docket Number: No. 94-3057,94-3057
• Citation: 56 F.3d 265,312 U.S.App.D.C. 301
• Parties: UNITED STATES of America, Appellee, v. Mark Allen FORD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 265

56 F.3d 265

312 U.S.App.D.C. 301

UNITED STATES of America, Appellee, v. Mark Allen FORD, Appellant.

No. 94-3057.

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 1995.

Decided June 9, 1995.

Bernard S. Grimm, appointed by the court, Washington, DC, argued the cause for appellant. With him on the briefs was Dennis F. Nee, Washington, DC.

Alan M. Boyd, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Atty., John R. Fisher, Thomas C. Black, and Andrew S. Levetown, Asst. U.S. Attys., Washington, DC.

Before: EDWARDS, Chief Judge, BUCKLEY and GINSBURG, Circuit Judges.

HARRY T. EDWARDS, Chief Judge:

This case involves the legality of a warrantless search incident to an in-home arrest, conducted without probable cause or reasonable suspicion. On the morning of January 10, 1992, six law enforcement officers, including a special agent of the FBI, arrived at the home of Mark Ford's mother with an arrest warrant for Ford. Upon entering the apartment, the FBI agent observed appellant in the apartment hallway and arrested him. The agent then conducted what the Government characterizes as a "protective sweep." He walked into the bedroom immediately adjoining the hallway in which appellant was arrested, purportedly to check for individuals who might pose a danger to those on the arrest scene. Once in the bedroom, the agent spotted a gun clip in plain view on the floor, and, although he realized that there were no people in the bedroom, the agent nevertheless continued to search. He lifted a mattress under which he found live ammunition, money, and crack cocaine, and he lifted the window shades and found a gun on the window sill. Ford moved to suppress this evidence, but the District Court held that the agent was justified in searching the bedroom, and that the evidence found therein was thus admissible. Ford was subsequently convicted of possession with intent to distribute cocaine base in violation of 21 U.S.C. Secs. 841(a)(1), (b)(1)(C) (1988) and possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1) (1988).

Appellant challenges his convictions, contending that the District Court erred in failing to suppress evidence seized in violation of the Fourth Amendment. We agree. In Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 1098, 108 L.Ed.2d 276 (1990), the Supreme Court held that "incident to [an] arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." In this case, the agent was justified in looking in the bedroom, which was a space immediately adjoining the place of arrest. And once in the bedroom, the agent could legitimately seize the gun clip which was in plain view. The agent could not, however, lawfully search beyond that--neither under the mattress nor behind the window shades--because these were not spaces from which an attack could be immediately launched, and there were no exigent circumstances justifying the warrantless search. We hold that the evidence taken from under the mattress and from behind the window shades was seized in violation of the Fourth Amendment and therefore was inadmissible at trial.

Once in the bedroom pursuant to a legitimate protective sweep under Buie, and once having seen the gun clip in plain view, the law enforcement officers had available reasonable measures to ensure their safety. They could have secured the bedroom and telephoned a magistrate for a search warrant, or they could have asked the owner of the apartment, appellant's mother, whether she would consent to a search of the apartment in lieu of waiting for a magistrate to issue a search warrant. This reasonable alternative to a warrantless search would have avoided the infringement of Fourth Amendment rights, without in any way jeopardizing the safety of the officers. However, the officers took no such reasonable measures. Because the search was unreasonable and hence unconstitutional, we reverse the judgment of conviction and remand the case to the District Court for such proceedings as may be appropriate.

I. BACKGROUND

On January 10, 1992, FBI Special Agent Stephen Godfrey received a call from the Metropolitan Police Department informing him that officers in the Homicide Unit had a warrant for the arrest of appellant Mark Ford. The affidavit accompanying the arrest warrant alleged that appellant had shot a man after appellant and several accomplices robbed the man of cocaine. Agent Godfrey ran a criminal check on appellant and discovered that appellant previously had been arrested for forcible robbery, drug possession, and possession of a prohibited weapon.

At approximately 7 a.m. on January 10, 1992, Agent Godfrey and five police officers arrived at the apartment of appellant's mother in Washington, D.C. Upon entering the apartment, Agent Godfrey saw Ford, having emerged from a back bedroom, walking down a short hallway toward the officers. Agent Godfrey instructed appellant that he was under arrest, after which Ford was handcuffed and confined by the other officers. Appellant did not resist the arrest.

Agent Godfrey then walked into the bedroom from which appellant had emerged. The agent turned on the light in the bedroom and noticed a loaded .45 caliber magazine on the floor next to a set of box springs and mattresses. Although Agent Godfrey realized that there were no persons in the room--the room was devoid of furniture except for the box springs and mattresses, a dresser or wardrobe, and several bags piled up in a corner--Godfrey nevertheless proceeded to conduct a search. He lifted one of the mattresses and found live ammunition, money, and crack cocaine. Upon lifting the window shades, he discovered a .45 caliber handgun on the window sill.

Ford was charged, by a retyped indictment, ¹ with possession with intent to distribute cocaine base in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(C), use of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1) (1988 & Supp. V 1993), and possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). On September 20, 1993, the District Court held a pre-trial evidentiary hearing on the admissibility of physical evidence seized from the apartment of appellant's mother at the time of Ford's arrest. Agent Godfrey testified that he went into the bedroom "to make sure there was no one there to harm [the arresting officers]." Tr. of Motion Hearing (Sept. 20, 1993) at 30, reprinted in Appendix for Appellant (App.) 30. He also testified that there were no chairs or coffee tables behind which someone could hide, and that it would have been "[v]irtually impossible" for someone to hide underneath the mattresses in the bedroom. Id. at 33, reprinted in App. 33. Agent Godfrey further testified that, shortly after he lifted the mattress and found the ammunition, money, and contraband, an officer who had been stationed outside of the apartment informed him that the officer thought he had seen someone attempt to leave through the window or attempt to put something on the window sill. Id. at 18, 40, reprinted in App. 18, 40. Agent Godfrey then lifted the window shades and found the gun.

The District Court concluded that Agent Godfrey conducted a legitimate protective sweep and that the evidence discovered was admissible at trial. The court stated:

Given Mr. Ford's prior record, the fact that the warrant being executed was for felony murder, and the hour at which the warrant was executed, this Court finds that it was reasonable for Agent Godfrey to conduct a protective sweep to make sure that there was no one else on the premises who might have posed a danger to the officers or other individuals in the apartment. Agent Godfrey's actions amounted to no more than a cursory inspection of those places where an individual might have been found.

United States v. Ford, Crim. No. 91-347, slip op. at 7 (D.D.C. Sept. 30, 1993), reprinted in App. 87. The court held that the seized .45 caliber ammunition, found in plain view and with an incriminating character immediately apparent, was admissible. Id., slip op. at 8, reprinted in App. 88. The court also held that, "[i]n conducting a protective sweep, a reasonably prudent police officer who finds ammunition in plain view next to a bed is justified in checking the immediate vicinity in an attempt to locate weapons that might pose a danger to those present." Id.

Ford was subsequently tried by a jury. On February 4, 1994, the District Court granted appellant's motion for judgment of acquittal on the second count--use of a firearm in relation to a drug trafficking offense--and, later that day, the jury returned a guilty verdict against appellant on the remaining two counts. On May 6, 1994, the District Court sentenced appellant to concurrent terms of seventy months imprisonment on both counts, to be followed by concurrent terms of three years of supervised release. Appellant challenges the District Court's determination that Agent Godfrey's search in the bedroom was permissible under the protective-sweep doctrine. ²

II. ANALYSIS

The Fourth Amendment prohibits only unreasonable searches and seizures. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989). In determining the reasonableness of a search, courts balance the intrusion on an individual's Fourth Amendment interests against the promotion of legitimate Government interests. See United States v. Villamonte-Marquez, 462 U.S. 579, 588, 103 S.Ct. 2573, 2579-80, 77 L.Ed.2d 22 (1983). The Supreme Court has repeatedly emphasized the "cardinal principle" that " 'searches conducted outside the judicial process, without prior approval by judge or...