U.S. v. Colbert

• Decision Date: 26 February 1996
• Docket Number: No. 95-1143,95-1143
• Citation: 76 F.3d 773
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo Cortez COLBERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 773

76 F.3d 773

UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo Cortez COLBERT, Defendant-Appellant.

No. 95-1143.

United States Court of Appeals Sixth Circuit.

Argued Jan. 26, 1996.

Decided Feb. 26, 1996.

On Appeal from the United States District Court for the Eastern District of Michigan; Gerald E. Rosen, District Judge.

Kathleen Moro Nesi, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Attorney, Detroit, MI, for U.S.

Arthur Jay Weiss (argued and briefed), Law Offices of Arthur Jay Weiss & Associates, Farmington Hills, MI, for Lorenzo Cortez Colbert.

Before: MARTIN, GUY, and RYAN, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Lorenzo Colbert proffered a conditional plea of guilty to possession with intent to distribute cocaine base under 21 U.S.C. § 841(a)(1), reserving his right to appeal the district court's denial of his motion to suppress evidence seized during a police search of his residence. The district court sentenced Colbert to fifteen years' imprisonment. Colbert now appeals the district court's denial of his motion to suppress. For the reasons set forth below, we REVERSE.

This case arises out of a 1989 Detroit police department homicide investigation in which Colbert was a suspect. On October 4, 1994, a task force consisting of Detroit police officers and federal agents conducted surveillance outside the apartment where Colbert was staying. The agents had a warrant for Colbert's arrest, which charged him with escape in relation to previous convictions for weapons violations and assault. The surveillance began at 9:30 a.m., and ended at 12:30 p.m. that same day. The apartment was leased by Andrea Lewis, Colbert's girlfriend.

Although the task force was able to surround the apartment effectively, and to trace Colbert's movements, they were not able to see the front door of the apartment and therefore could not see whether any of the foot traffic in the area went into or came out of the apartment. At 12:30 p.m., Colbert left the apartment and walked toward his car, which was parked forty to fifty feet away from the entrance to his apartment. The federal/state task force closed in on Colbert and arrested him as he was standing next to the driver's door of his car, handcuffing Colbert in the process.

According to the United States, a few moments after the arrest, Ms. Lewis came running out of the apartment, "very irate," "very agitated, screaming and yelling," and in a "hostile rage." The police officers quickly detained Lewis, although they did not search her. Also, there is no indication that the police suspected that she was armed or that she possessed any contraband on her person. Colbert admits that Lewis came outside after his arrest, but asserts that this was reasonable behavior after she watched Colbert surrounded by eight or nine men in civilian clothes brandishing weapons.

After Lewis came running out, Special Agent Michael Thomas Hawes immediately went to the front door of the apartment. Hawes testified that he was "concerned that somebody might ... still be in there." The apartment's entrance was barred by a closed screen door, which Hawes opened and yelled into the apartment, "Police!" He received no answer, but testified that he saw a shotgun leaning against a wall in plain view. Colbert refuted this testimony, claiming that the gun was not in plain view, but the district court credited the police officer's testimony.

Hawes then conducted a protective sweep of the apartment and observed a revolver and scales in plain view (again Colbert claims that these items were not in plain view, but the district court credited the agents' testimony). The police officers then secured the apartment for four hours while they obtained a search warrant. During the execution of the warrant, the police seized a small amount of cocaine, the shotgun, the revolver, ammunition, scales, and some personal papers.

During the hearing on Colbert's motion to suppress the evidence seized from Ms. Lewis' apartment, the district court found the officers' protective sweep of Colbert's home to be justified under Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 1098, 108 L.Ed.2d 276 (1990), stating:

I have already ruled that the protective sweep that was done at the time of the arrest of Mr. Colbert was warranted for a number of different reasons, under the United States Supreme Court's decision in [ Buie ]. In particular, the factors that I am focusing on in upholding the need for a protective sweep are the fact that Mr. Colbert was on escape status at the time, he was wanted for murder, he was under investigation for possible involvement in drug trafficking. At the time the surveillance was taken up at approximately 9:30 a.m. in the morning of this apartment at Chalmers, Mr. Colbert was believed to be in that apartment. Mr. Colbert then came out of the apartment, attempted to enter a vehicle after having already brought into the house, with another gentleman, a duffel bag. Although the other gentleman had left the premises at the time of Mr. Colbert's arrest, a young woman, Ms. Lewis, came out of the house. Both officers have described her as ranting and raving and trying to interfere with the arrest, or at least attempting to ... yell at the officers effectuating the arrest.

In view of this information, I believe that all of this information which Officer Hawes had at the time of the arrest, it was reasonable for him, and these facts present articulable facts which, taken together from any rational inferences which can be drawn from those facts, warranted Officer Hawes to be prudent and reasonable in believing that the apartment may have harbored another individual, potentially, who may have posed a threat to those at the arrest scene. For that reason I have upheld the efficacy of the protective sweep.

Colbert now appeals this denial of his motion to suppress.

We review the district court's findings of fact for clear error and its conclusions of law de novo. United States v. Johnson, 9 F.3d 506, 508 (6th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2690, 129 L.Ed.2d 821 (1994). Neither party takes issue with the district court's findings of fact.

In Maryland v. Buie, the Supreme Court recognized an exception to the traditional warrant requirement for officers making an arrest inside an arrestee's home, allowing them to conduct a "protective sweep" of the premises to ensure the officers' safety. The Buie case had two holdings. First, during a search incident to an arrest occurring inside a home, officers may, "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." Id. at 334, 110 S.Ct. at 1098. Second, officers may conduct a search more pervasive in scope when they have "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. This sweep may "extend only to a cursory inspection of those spaces where a person may be found," and may last no longer than "is necessary to dispel the reasonable suspicion of danger...." Id. at 335, 110 S.Ct. at 1099. This case involves the second, more pervasive type of Buie search. Specifically, we must decide whether Hawes had articulable facts which warranted his intrusion into the home after Colbert was arrested and placed in handcuffs outside that home.

Colbert first argues that a protective search is never justified when a defendant is arrested outside a home, and this Court has never squarely addressed the issue. However, in United States v. Calhoun, we mentioned in dicta that, where a defendant is arrested outside a home, "a warrantless search of the apartment could be justified only if the officers had a specific, reasonable basis for believing ... that they were in danger from persons inside...." 49 F.3d 231, 234 n. 3 (6th Cir.1995). Further, in a somewhat analogous factual context, we upheld a protective sweep of a motel room where the defendant was arrested twenty to seventy-five feet outside the room. United States v. Biggs, 70 F.3d 913, 915-16 (6th Cir.1995). Because persons generally have a stronger expectation of privacy in a home rather than a hotel room, Biggs would not necessarily foreclose a ruling that a protective sweep of a home is never justified after an arrest which takes place outside the home. However, the analytical approach taken by the Supreme Court in Buie and this Circuit in Biggs argues against the adoption of such a bright-line rule.

In Buie, the Supreme Court weighed the need to ensure officer safety against an individual's reasonable expectation of privacy in the home, noting that "[t]he risk of...