78 F.3d 56 (2nd Cir. 1996), 1015, United States v. Blue

Docket Nº:1015, Docket 95-1418.
Citation:78 F.3d 56
Party Name:UNITED STATES of America, Appellee, v. Clarence Davis BLUE, also known as John Blue, Defendant-Appellant.
Case Date:March 05, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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78 F.3d 56 (2nd Cir. 1996)

UNITED STATES of America, Appellee,

v.

Clarence Davis BLUE, also known as John Blue, Defendant-Appellant.

No. 1015, Docket 95-1418.

United States Court of Appeals, Second Circuit

March 5, 1996

Argued Dec. 21, 1995.

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Douglas F. Eaton, New York City, for defendant-appellant.

Margery B. Feinzig, Assistant United States Attorney for the Southern District of New York, New York City (Mary Jo White, United States Attorney, Ira M. Feinberg, Assistant United States Attorney, on the brief), for appellee.

Before: MESKILL, ALTIMARI and CALABRESI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Clarence Davis Blue appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York (Koeltl, J.), following his conditional plea of guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). On appeal, Blue challenges his conviction, contending that the district court erred in denying his motion to suppress evidence seized in violation of the Fourth Amendment. Blue claims principally that the officers recovered a firearm in his apartment during an impermissibly broad protective sweep that extended to the area between his mattress and box spring. For the reasons set forth below, we vacate the judgment and remand for further proceedings in connection with Blue's suppression motion.

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BACKGROUND

This case arises out of the November 22, 1994 search of the interior of a bed in Blue's apartment incident to the arrest of another man, Elton Ogarro, in the course of an investigation by officers of the United States Drug Enforcement Administration ("DEA") Task Force into drug trafficking. The following description is drawn largely from the testimony of the officers at a hearing on Blue's motion to suppress the contents found within the interior of his bed.

On November 22, 1994, approximately a dozen agents and officers of the DEA's Task Force went to 64 East 131st Street in Manhattan to execute two arrest warrants and a search warrant for an apartment on the second floor. The arrest warrants were for Gregory Brown and Ogarro, who were believed to have been selling crack cocaine.

Shortly after the agents arrived in the vicinity, they arrested Brown outside the building. They waited a few minutes to see if Ogarro would also exit the building, and when he did not, the agents entered the building and walked up the stairs. Detective Joseph McHugh, the affiant on the warrants, discovered that the apartment specified in the search warrant did not have the padlock described by the informants; instead there was a padlocked apartment on the third floor. McHugh left the building to call the United States Attorney's Office and see if it was necessary to amend the search warrant. After the detective left, DEA Agents Donald Bullard, Mauricio Fernandez and Robert Koval, with the rest of the team behind them, proceeded up the staircase from the second floor to the third floor and stood at the head of the stairs, watching the padlocked apartment. Moments later, the agents saw Ogarro running down the hallway. Agent Fernandez grabbed Ogarro at the top of the stairs and attempted to push him up against the wall. The wall, however, turned out to be the door to Blue's apartment, which flew open, causing Ogarro to fall to the ground inside the apartment.

Agents Fernandez, Koval and Jenkins entered Blue's apartment, while Agent Bullard checked the other areas of the building. Jenkins identified Ogarro as the man for whom they had a warrant and handcuffed Ogarro behind his back, placing him on the floor face down. Jenkins then approached Blue, who had been sitting on the bed during the incident. Jenkins identified himself as a police officer, but received no response from Blue, who appeared lethargic, as though under the influence of a narcotic. Jenkins handcuffed Blue behind his back and placed him in a prone position on the floor. There was a distance of approximately two feet between Ogarro and the bed, and Jenkins placed Blue so that Blue was lying between the bed and Ogarro.

After Ogarro and Blue were handcuffed, Agents Jenkins and Koval performed a "security sweep" of the apartment; the apartment consisted of a single room, measuring approximately 12 feet by 8 feet, all of which was visible at a glance. Meanwhile, Agent Fernandez, who weighed over two hundred pounds, guarded the two men. Agent Koval lifted Blue's mattress off its box spring. In the middle of the box spring, Koval discovered a package wrapped in brown paper, a machine gun, and an ammunition clip.

Blue was arrested and charged in a criminal complaint with possessing a firearm in violation of 18 U.S.C. § 922(o). Further investigation revealed that Blue's criminal record included eight felonies. Blue was then indicted for possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). On March 1, 1995, Blue moved to suppress the weapon and ammunition on the ground that the search of his apartment violated his Fourth Amendment rights. Following a suppression hearing on March 17, 1995, the district court denied the motion, holding that the agents' warrantless entry into Blue's apartment was justified by exigent circumstances, and that the search performed by the agents was a proper protective sweep incident to Ogarro's arrest. The district court concluded that the interior of Blue's bed was lawfully subject to a search because it was within the immediate reach of Ogarro, and, alternatively, the space between the box spring and the mattress lying directly on top of it could have concealed a person. The

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district court also concluded that the seizure of the machine gun could be justified independently as the result of a limited protective search incident to the temporary detention of Blue.

Blue subsequently pled guilty pursuant to a conditional plea agreement, reserving the right to appeal the denial of his suppression motion. On July 11, 1995, the district court sentenced Blue principally to a 37-month term of imprisonment.

Blue now appeals solely to challenge the suppression ruling on his claim that...

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