U.S. v. Akrawi

• Citation: 920 F.2d 418
• Decision Date: 14 December 1990
• Docket Number: No. 90-1445,90-1445
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ragheed AKRAWI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 418

920 F.2d 418

UNITED STATES of America, Plaintiff-Appellee, v. Ragheed AKRAWI, Defendant-Appellant.

No. 90-1445.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 8, 1990.

Decided Dec. 14, 1990.

William J. Richards, Asst. U.S. Atty. (argued), U.S. Dept. of Justice, Detroit Strike Force, Detroit, Mich., for plaintiff-appellee.

James C. Howarth (argued), Detroit, Mich., for defendant-appellant.

Before KRUPANSKY and MILBURN, Circuit Judges, and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

The defendant, Ragheed Akrawi, entered a conditional guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1), after the district judge denied Mr. Akrawi's motion to suppress the handgun that was the subject of the count. Mr. Akrawi specifically claims that a protective sweep search that followed an in-home arrest of another person and revealed the handgun, was improper. Because of the specific circumstances of the agents' protective sweep, we hold that the search was indeed improper. Accordingly, we REVERSE the district court's decision and REMAND for proceedings consistent with this opinion.

I.

On March 1, 1989, Bureau of Alcohol, Tobacco and Firearms (ATF) agents together with agents of the Drug Enforcement Agency (DEA) obtained an arrest warrant for Tahrir S. Kalasho. The agents obtained no search warrant, however, for the premises where Mr. Kalasho might be found. Mr. Kalasho was the subject of a joint ATF and DEA investigation regarding his alleged involvement with the importation and distribution of cocaine in the Detroit area. According to the government, the defendant in this matter, Ragheed Akrawi, serves as a lieutenant in the alleged Kalasho cocaine organization. The government claims that the Kalasho organization distributes cocaine, collects funds, pays for contract murders and has committed arson and bombings. ¹

Agents executed the warrant for Mr. Kalasho's arrest at 6099 Quaker Hill in West Bloomfield, Michigan. Fifteen to eighteen law enforcement officers, including those from the ATF, DEA, Immigration and Naturalization Service, and the Michigan State Police, approached 6099 Quaker Hill shortly before noon on March 1, 1989. Mr. Kalasho's mother owned the two story house at the address. The record is ambiguous as to how long the agents observed the house before approaching it. Agents' testimony implies, however, that agents conducted no surveillance except perhaps during the brief moments prior to entering the house.

Agents observed only one car parked in front of the house. The residence had a two car garage, but the agents did not determine whether vehicles were garaged there. Agents did not know who might be in the house other than Mr. Kalasho, his mother, Basima Kalasho, Mr. Akrawi and possibly Mr. Akrawi's girl friend, Ms. Smith.

Eight to ten agents stood at the door, three with their guns drawn, while an agent rang the doorbell. Mr. Kalasho opened the door and allowed the agents into the house with no resistance. Once inside the residence, agents found Mr. Akrawi and Mr. Kalasho's mother. Mr. Kalasho, his mother and Mr. Akrawi were unarmed. Agents handcuffed Mr. Kalasho and Mr. Akrawi, placed them in separate rooms, but formally arrested only Mr. Kalasho.

Mr. Kalasho's mother, who recently had lost one son in drug related violence, remained hysterical during her son's arrest. She made statements that she wished death upon the agents and their families and wished that the agents would experience the same pain that she had experienced. Mr. Akrawi allegedly made the statement that the next time that agents or police came through the door, he would meet them with .223 caliber bullets that would pierce both sides of their bullet-proof vests. Neither Mr. Kalasho, Mr. Akrawi nor Mrs. Kalasho, however, made any immediate threats on the agents' lives.

Despite the fact that Mr. Kalasho immediately answered the door, was then arrested, and the agents had no warrant to search the house, the agents inexplicably remained in the house for forty-five minutes. Although one would expect a protective sweep immediately after the arrest, if at all, the record does not establish when during that period the sweep occurred. During this warrantless search, agents checked the rooms on the second floor to determine if anyone else might be in the house. The agents looked only in places where people might be hiding, such as closets. In one upstairs bedroom, two agents observed a 9mm Beretta pistol lying on top of a nightstand in plain view. The agents did not touch the pistol but questioned Mr. Akrawi regarding its ownership. Mr. Akrawi admitted owning the pistol. While agents lacked the knowledge at that time, agents subsequently learned that Mr. Akrawi was a convicted felon.

During an evidentiary hearing, the agents described their search as a protective sweep conducted only for the protection of the agents. The agents testified that the search was made to insure that no one else was in the house. The agents also testified that they knew that several members of the alleged Kalasho organization had used the address in the past. No noises or voices indicated, however, that anyone was on the second floor. The agents could not articulate any specific reason that they believed someone of danger to the agents was in the house at that time.

On April 28, 1989, federal agents returned to 6099 Quaker Hill with warrants for the seizure of items for federal forfeiture. The agents seized the same 9mm Beretta pistol that Mr. Akrawi had admitted owning during the arrest of Mr. Kalasho. Subsequently, agents arrested Mr Akrawi at his parents' home in Detroit pursuant to a three count indictment. Count one of the indictment of Mr. Akrawi specifically charged him as a felon in possession of a firearm, the 9mm Beretta pistol.

Mr. Akrawi challenged the agents' protective sweep as a violation of the fourth amendment. The district judge ruled, however, that the search did not violate the fourth amendment because the agents' information on Mr. Kalasho and Mr. Akrawi indicated that they were involved in narcotics and were in possession of weapons. Mr. Akrawi subsequently entered a conditional guilty plea to being a felon in possession of the 9mm Beretta pistol. Mr. Akrawi now appeals, relying on the alleged impropriety of the agents' protective sweep.

II.

The sole issue on appeal is whether the agents' protective sweep that revealed the pistol was proper. The Supreme Court recently considered whether the fourth amendment permits properly limited protective sweeps by law enforcement officers in conjunction with in-home arrests in Maryland v. Buie, --- U.S. ----, 110 S.Ct. 1093, 1095, 108 L.Ed.2d 276 (1990). The Court specifically considered in Buie a protective sweep search during the in-home arrest of a robbery suspect, Jerome Buie. Id. While searching for Buie in his house, the arresting officer yelled down the basement steps calling for anyone hiding to emerge. Id. Buie emerged and the officer placed him under arrest. Id. Another officer descended into the basement...