U.S. v. Hernandez

• Decision Date: 08 August 1991
• Docket Number: D,No. 1543,1543
• Citation: 941 F.2d 133
• Parties: UNITED STATES of America, Appellee, v. Geraldo HERNANDEZ, also known as Gerardo Hernandez, also known as Juan Hernandez, Defendant-Appellant. ocket 91-1028.
• Court: U.S. Court of Appeals — Second Circuit

Page 133

941 F.2d 133

UNITED STATES of America, Appellee, v. Geraldo HERNANDEZ, also known as Gerardo Hernandez, also

known as Juan Hernandez, Defendant-Appellant.

No. 1543, Docket 91-1028.

United States Court of Appeals, Second Circuit.

Argued June 3, 1991.

Decided Aug. 8, 1991.

Christopher P. Reynolds, Asst. U.S. Atty., S.D.N.Y. (Helen Gredd, Asst. U.S. Atty., S.D.N.Y. and Otto G. Obermaier, U.S. Atty., S.D.N.Y., of counsel), for appellee.

Barry C. Scheck, New York City (Lawrence A. Vogelman and Ellen Yaroshefsky, of counsel), for defendant-appellant.

Before OAKES, Chief Judge, PRATT and ALTIMARI, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Defendant Geraldo Hernandez appeals from a judgment convicting him of violating 18 U.S.C. § 922(g), which makes it a crime for a felon to possess a firearm. Hernandez conditioned his guilty plea on the right to appeal the district court's denial of his motion to suppress the handgun that served as the basis for his § 922(g) conviction. Hernandez secondarily argues that if his conviction is not entirely vacated, he should at least be resentenced, because the district court "ignored and violated fundamental Guideline procedure" in sentencing him to 90 months' imprisonment.

We reject Hernandez's challenge to the district court's suppression ruling. We also reject his arguments regarding the district court's upward departure in sentencing; however, because the district court based its determination of Hernandez's criminal history category on the circumstances surrounding his present conviction, we remand the case for resentencing.

BACKGROUND

In late 1989 a warrant was issued for Hernandez's arrest on a parole violation. On December 11, 1989, based on an informant's tip, two deputy marshals staked out an apartment in Manhattan, on West 36th Street between Ninth and Tenth Avenues. After a few hours, they saw Hernandez, along with two other men they did not recognize, pull up and get out of a grey Cadillac. Hernandez was carrying a black attache case, and as one of the marshals testified, Hernandez "kept pulling up his belt, like something was falling". To the deputy marshals, this suggested that Hernandez was carrying a gun, and this observation, together with their knowledge of Hernandez's previous conviction for illegally trafficking in weapons, led them to conclude that Hernandez was armed and dangerous.

After Hernandez and the two men entered the apartment building, the deputy marshals called for a backup; approximately ten deputy marshals responded. They divided into three groups: one group was to surround the building, to prevent Hernandez The deputy marshals twice knocked on the door of the apartment and identified themselves as the "police". Receiving no response, the deputy marshals broke down the door. As they entered the apartment, they found Hernandez in the living room and immediately arrested him.

from escaping; a second group was to arrest Hernandez; the third group was to engage in a protective sweep of the apartment, to ensure the safety of the arresting deputy marshals.

One deputy marshal, who was part of the protective-sweep team, entered a bedroom that was immediately to the right of the front door. There he discovered a woman, later identified as Betty Barrow, on the bed. The deputy marshal ordered her to stand up and raise her hands. He then handcuffed her, and temporarily placed her on the floor between the bed and a dresser. As he did this, he ran his hand across the top of the bed, underneath the bed, and between the mattress and the box spring. He also searched the drawers of a dresser next to the bed. He did all this because he planned to place Barrow on the bed, where she would be more comfortable, and where it would be easier to watch her. As the deputy marshal ran his hand between the mattress and the box spring, however, he discovered a loaded .357 magnum revolver.

In plain view, other deputy marshals also discovered a beeper, a cellular phone, a bag of currency, and a triple beam scale.

After Hernandez was indicted for possessing a weapon in violation of 18 U.S.C. § 922(g), he moved to have the gun and the other items found in the apartment suppressed, arguing that their discovery was the result of an illegal search in violation of the fourth amendment. Following an evidentiary hearing, the district judge denied the motion in an order dated June 11, 1990.

Three days later, Hernandez pled guilty, reserving his right to appeal the denial of his suppression motion, see Fed.R.Crim.P. 11(a)(2), and was subsequently sentenced to 90 months' imprisonment, followed by a three-year term of supervised release, and a $50 special assessment.

Hernandez appeals.

DISCUSSION

On appeal, Hernandez raises two issues--denial of his suppression motion, and improper sentencing under the guidelines. For the reasons that follow, we affirm the district court's denial of Hernandez's suppression motion, but remand for resentencing because the district court incorrectly determined Hernandez's criminal history category.

A. The Suppression Motion.

Hernandez contends that the actions of the deputy marshals exceeded the bounds of a proper "protective sweep" under the doctrine set out by the Supreme Court in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). "A 'protective sweep' is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others." Id., 110 S.Ct. at 1094. The district court concluded that the search of the bedroom area around Barrow, which led to discovery of the gun, was part of a proper protective sweep and, therefore, was not in violation of the fourth amendment.

Hernandez claims that the district court improperly extended the scope of a protective sweep by approving of a search that extended beyond a visual search for dangerous individuals. According to Hernandez, a protective sweep should be limited to "a search for people in places where they may be hiding, not a search in drawers and within furniture where weapons might be hidden." We do not think a protective search is so narrowly limited.

As the district court correctly pointed out, Buie is only the most recent in a succession of cases that seek to balance concerns for the safety of arresting officers with the fourth amendment rights of citizens. Buie cannot be read in isolation, for its holding draws heavily from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Significantly for our purposes, in In Terry, the Court allowed an on-the-street frisk for weapons by an officer when the officer believed, based on "specific and articulable facts", that a person was armed and dangerous. Terry, 392 U.S. at 21, 88 S.Ct. at 1880. In determining that the search was proper, the Court applied a reasonableness test:

                all three cases the Court applied the same balancing test to different factual situations.   See Buie, 110 S.Ct. at 1097-99.  ("The ingredients to apply the balance struck in Terry and Long are present in this case.")  Id. at 1097
                

[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Id. at 27, 88 S.Ct. at 1883 (citations omitted).

In Long, the Court extended the rationale of Terry to a search of the passenger compartment of a car, following a stop of that car. Applying the same balancing test that it had applied in Terry, the Court concluded that " 'a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger' ". Long, 463 U.S. at 1050, 103 S.Ct. at 3481 (quoting Terry ). For this reason, the Court held that the search of the car was proper. Long, 463 U.S. at 1050-51, 103 S.Ct. at 3481. The Court further noted that as long as the area search "is limited to a search for weapons in circumstances where the officers have a reasonable belief that the suspect is potentially dangerous to them", the search is proper. Id. at 1052 n. 16, 103 S.Ct. at 3482 n. 16.

In both Terry and Long, the Court was "concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with or able to gain immediate control of a weapon that could unexpectedly and fatally be used against them." Buie, 110 S.Ct. at 1097.

In Buie, the Court applied Terry's balancing test to an arrest of a suspect in the suspect's house. There, police officers had obtained an arrest warrant for Buie and his accomplice, whom they suspected of committing an armed robbery. Id. at 1095. After verifying that Buie was home, six or seven officers went to his house. They entered the house, and fanned out through the first and second floors. A single officer went to the basement stairs, and in a loud voice ordered anyone in the basement to come out. Id. Eventually Buie emerged from the basement, and he was searched and handcuffed. Thereafter, another officer went down into the basement to see if anyone else was there. While searching the basement, the officer discovered physical evidence that linked Buie with the crime. Id.

The trial court refused to suppress the evidence, as did the Court of Special Appeals of Maryland. Id. However, the Court of Appeals of Maryland reversed, concluding that the search had violated the fourth amendment. Id. at 1095-96. The Supreme Court, in turn, vacated the judgment of the Court of Appeals of Maryland, holding that the officer's actions were part of a proper protective sweep. Id. at 1095.

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