US v. Henry
| Decision Date | 30 January 1992 |
| Docket Number | Crim. No. 91-628-(01). |
| Citation | 797 F. Supp. 1 |
| Court | U.S. District Court — District of Columbia |
| Parties | UNITED STATES of America v. Roland HENRY and James Hamilton. |
Reita Pendy, Office of Federal Public Defender, Washington, D.C., for defendants.
Karen Rhew, Office of The U.S. Atty., Washington, D.C., for plaintiff.
On October 4, 1991 at approximately 1:00 p.m. Defendant Henry exited apartment B-34 and entered the hallway of the apartment building at 134 — 42nd Street, N.E. The United States Marshal Service was surveilling this apartment pursuant to information from a confidential informant that Henry was inside. Henry was wanted by the police on a parole violation warrant. Marshal Sloane was hiding behind a staircase in the hallway outside of Henry's apartment. When Henry entered the hallway for a second time, Marshal Sloane exited from behind the staircase, pointed his gun at Henry and told Henry to freeze and that he was under arrest. Henry froze and put his arms in the air. Several Marshals and police officers approached the apartment building door which was locked. Still holding the gun on Henry, Sloane backed up and opened the door for the officers. The officers quickly entered the building and tackled Henry to the ground, placing handcuffs on him and patting him down for weapons. Within minutes of the arrest, the officers entered apartment B-34. Several of the government's witnesses testified that Defendant Henry asked the officers to allow him to enter the apartment in order to change his clothes before being taken to the police station. The Court hereby finds this testimony of doubtful credibility. Nonetheless, for reasons stated below, the officers were justified in entering the apartment in order to conduct a protective sweep of the apartment. In the bedroom of the apartment the officers found in plain view a .38 calibre revolver, marijuana, and a plastic bag containing heroin. Meanwhile, Henry was being held in the living room.
After bringing Henry into the apartment, the officers attempted to read him his rights. Henry interrupted the officers and told him he knew what his rights were. Henry ultimately signed a PD 47 form stating that his rights were read to him and he did not wish to waive them. The form stated that he was not willing to answer questions without an attorney.
Before and subsequent to invoking his rights, Henry made statements that he would "take the weight for this" and that everything in the apartment belonged to him.
Henry remained under arrest in the apartment for approximately six hours. At approximately 7:00 p.m. he was taken to the police station. Henry was ultimately indicted on the charges of possession with intent to distribute heroin, use of a firearm in a drug trafficking offense, and possession of a firearm by one previously convicted of a felony.
James Hamilton drove up to 134 — 42nd Street, N.E. in a cab at approximately 1:00 p.m. on October 4, 1991. He exited the cab and, with assistance from the cab driver, carried four bags containing his personal possessions up to the apartment building. Through the window in the door of the building Hamilton saw Henry inside the building being arrested by Marshal Sloane. Henry apparently mouthed to Hamilton "they got me." As Hamilton walked back towards the cab, two police officers drove past him. In the car Marshal Nobles told Officer Robinson, without any explanation, to stop Hamilton. Officer Robinson stopped Hamilton and requested some identification. Robinson also requested identification from the cab driver and made a note of the cab driver's name and address.1 The information obtained from the cab driver was never made available to defense counsel.
At the same time Robinson stopped Hamilton, Marshal Nobles entered apartment B-34. A few minutes passed and Nobles returned from the apartment and approached Hamilton. Robinson told Nobles that Hamilton had produced identification stating that he was James Hamilton. Nobles responded that Hamilton resembled a fugitive named Thomas Farmer. Hamilton was arrested and placed in handcuffs and his rights were read to him. Robinson reached into Hamilton's pocket and gave the cab driver $10. The cab driver left the scene. Hamilton was taken into the apartment.
After being held in the apartment for approximately one hour Hamilton signed a "Consent to Search" form and a PD 47 form. Approximately four hours after Hamilton entered the apartment the police brought his four bags of personal belongings in from outside. There is conflicting testimony as to whether Hamilton consented to a search of his bags. It is undisputed that Hamilton gave no written consent to search the bags. Nonetheless, the bags were searched and heroin and other contraband was found. Hamilton was ultimately indicted on the following charges: possession with intent to distribute heroin, use of a firearm in a drug trafficking offense, and possession of a firearm by one previously convicted of a felony.
Late in the afternoon, Officer Robinson obtained a search warrant for the apartment. This was done despite the fact that Hamilton allegedly consented to a search of the apartment. During the search, police discovered the following: a Tec 9 automatic machine gun and bullet-proof vest; a sawed-off shot gun, jacket and ski masks; ammunition; $351 in cash; and assorted narcotics paraphernalia.
At approximately 7:00 p.m. Henry and Hamilton were taken to the police station.
The first issue presented by the motions is whether, following the arrest of Defendant Henry in the hallway of the apartment, the police were justified in conducting a protective sweep of the apartment. Any items found in plain view in the apartment are admissible only if the police were lawfully present in the apartment. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).
In Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), cited by both the government and defense counsel, the Supreme Court was faced with the issue of "what level of justification is required by the Fourth and Fourteenth Amendments before police officers, while effecting the arrest of a suspect in his home pursuant to an arrest warrant, may conduct a warrantless protective sweep of all or part of the premises." 494 U.S. at 327, 110 S.Ct. at 1094 (emphasis added). The Court defined a protective sweep as a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." 494 U.S. at 327, 110 S.Ct. at 1094. To uphold such a search there must be a reasonable belief, supported by specific and articulable facts, that the area swept harbored an individual posing a danger to the officers or others. Otherwise the sweep would violate the Fourth Amendment. In this case, however, Henry was arrested in the hallway outside of the apartment. He was not arrested in his home. Therefore, Buie is not precisely on point.
United States v. Sheikh, 654 F.2d 1057 (5th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982), allowed a protective sweep of a hotel room following an arrest in the hall outside the room. The court reasoned that a cursory check of the room is justified if the police have "reasonable grounds to believe that there are other persons present inside who might present a security risk." Id. at 1071. Also, in United States v. Owens, 782 F.2d 146 (10th Cir.1986), the Court followed Sheikh's reasoning but found that no protective sweep of the hotel room was justified. In Owens, after arresting the defendant in the hallway outside of his hotel room, the officers retreated to their surveillance room and phoned the hotel manager. It was after this time had passed that the officers decided to conduct a protective sweep of defendant's hotel room. There was no indication that the officers conducted the sweep due to a reasonable belief that their security was at risk.
Therefore, in order to conduct a protective sweep of an apartment building following an arrest in the hallway of the building, police officers must (1) reasonably believe that there are other persons inside who present a security risk, and (2) limit the "search" of the apartment to a quick and limited search of premises conducted to protect the safety of police officers or others, Buie, 494 U.S. 325, 110 S.Ct. 1093. Also, because the protective sweep is an exception to the warrant rule, the government bears the burden of justifying the sweep. United States v. Walker, 673 F.Supp. 292, 279 (N.D.Ill.1987), United States v. Patino, 830 F.2d 1413, 1415 (7th Cir.1987), cert. denied, 490 U.S. 1069, 109 S.Ct. 2072, 104 L.Ed.2d 637 (1989).
Here, the defense counsel argues that the police had no reason to believe that anyone but Henry was in the apartment. Defense counsel also points out that almost 15 officers participated in this arrest. Furthermore, the officers had the apartment under surveillance at least since 9:30 the morning of October 4, 1991 and should have had some indication as to who was in the apartment by 1:30 p.m. when the arrest occurred.
To uphold such a search there must be a reasonable belief, supported by specific and articulable facts, that the area swept harbored an individual posing a danger to the officers or others. The Court finds that it was reasonable for the officers on the scene to conduct a protective sweep. The fact that Defendant Henry was a known fugitive combined with his prior record of convictions and the informant's belief that Henry was often armed could support a reasonable belief that the area swept harbored an individual who could pose a danger to the officers. Therefore, the Court finds that the entry pursuant to a protective sweep was justified and the evidence found in plain view is admissible.
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