NO. 95-3044





xxxxxxx xxxxxxx,






Pursuant to Fed. R. App. P. 28(f) and Circuit Rule 28(a)(5),

pertinent statutes and rules are set forth in the Addendum hereto.


The District Court had jurisdiction under 18 U.S.C. § 3231 and

28 U.S.C. § 2255. Notices of appeal having been timely filed, this

Court has jurisdiction pursuant to 28 U.S.C. § 1291.


Whether the deputy marshal violated the Fourth Amendment by executing a warrantless search of the bedroom for guns after arresting and securing defendant and seizing the immediately visible guns and magazine, in that (a) the deputy's return to the bedroom to search only for guns did not qualify as a permitted "protective sweep" to guard against possible attack by another person, and (b) the evidence did not support the judge's alternative finding that the proceeds of the warrantless search would inevitably have been discovered in the execution of the search warrant for documents the next day.


Procedural Background

In a superseding indictment filed on September 9, 1993, appellant xxxxxxx xxxxxxx was charged with the following offenses, all of which allegedly were committed on or about July 8, 1993: Count One, possession of a detectable amount of cocaine base with intent to distribute (21 U.S.C. § 841(a)(1) and (b)(1)(C)); Count Two, using and carrying two pistols during and in relation to a drug trafficking offense (18 U.S.C. § 924(c)(1)); Count Three, possession of a detectable amount of cocaine base with intent to distribute within 1000 feet of a school (21 U.S.C. § 860(a)); Counts Four and Five, possession of unregistered sawed-off shotguns (26 U.S.C. § 5861(d)); Count Six, possession of all four weapons without valid registration certificates (6 D.C. Code § 2311(a)); Count Seven, possession of ammunition without a valid firearm registration certificate (6 D.C. Code § 2361(3)). On October 12, 1993, a hearing was held on Mr. xxxxxxx's motion to suppress the tangible evidence seized from his home, and on October 13, 1993 the judge orally denied the motion. Later in the October 13 proceeding, Mr. xxxxxxx entered a conditional plea of guilty to the first two counts of the indictment (possession of cocaine base with intent to distribute and possession of firearms in relation to that offense). On January 13, 1994, Mr. xxxxxxx was sentenced on the first count to 50 months in prison and on the second count to 60 months in prison, to be served consecutively, to be followed by concurrent three-year terms of supervised release, and to a $50 special assessment. On January 19, 1994, Mr. Abdul Saboor filed a notice of appeal from the denial of the suppression motion; that notice was treated as a timely notice of appeal from the judgment by order of the District Court filed on March 31, 1995. Footnote

The Motion to Suppress Tangible Evidence

On October 12, 1993, an evidentiary hearing was held on the motion to suppress tangible evidence filed by defendant xxxxxxx xxxxxxx. The first witness was Robert Parker, a Deputy United States Marshal (H. 5-6). Footnote On July 8, 1993, he and Deputy Karen Skillman went to 569 24th Street, N.E. to execute a bench warrant for defendant's arrest (H. 6-8). They gained entry to the apartment building by obtaining a key from the landlord, and then they went to apartment 2 (H. 8).

In response to Parker's repeated knocking during an interval of three to four minutes, defendant opened the door (H. 9). Defendant was wearing only a short bathrobe (H. 9). "He appeared tired, groggy. He'd been sleeping" (H. 10). Parker told him he was under arrest and why, and he asked to put on a pair of shorts (H. 10). Parker indicated that he could do so (H. 10). Defendant then turned and walked into the apartment, toward the bedroom, and Parker followed "right behind him" to a point just inside the bedroom doorway (H. 10, 13). The bedroom was "very small," "maybe only 12 feet, 12 feet long" (H. 10, 13).

Defendant walked ahead into the bedroom, which was "very dark," with no light in it except what was coming from the television screen (H. 11). As defendant passed the table that held the television, he picked up a handgun and "tried to secrete it in front of himself," his back still being toward Parker (H. 11). Parker immediately drew his weapon and told defendant to drop the gun, repeating the order and threatening to shoot when defendant did not comply, and then defendant dropped the gun at his feet, next to the table (H. 11-12).

Parker ordered defendant to raise his hands and back out of the bedroom, he did so, and Deputy Skillman came into the apartment's entrance and dining area and handcuffed him (H. 12, 14). Defendant was then seated in the dining area (H. 12, 14).

Parker next went back into the bedroom "to retrieve the weapon that he had dropped," which was a semi-automatic .45 caliber pistol (H. 14-15). Parker did that, and he also saw and seized from the television table another weapon, a 9 mm. MAC-11 pistol, and an extended .45 caliber magazine (H. 15-16). Footnote He took the evidence out to the kitchen area and did not look then at anything else on the television table (H. 16).

Parker watched defendant while Skillman went out to their car to call for back-up units to process the crime scene (H. 16-17). When Skillman returned, Parker went back into the bedroom "to see if there were any more guns in there" (H. 17). He admittedly never looked there or anywhere else in the apartment for someone other than defendant (H. 27, 28). Footnote

There were no lights in the bedroom, so Parker went to the window "and opened the blinds so [he] could see" (H. 17). Then he returned to the table and saw, "partially obstructed" by a framed picture on top of the television, "a plastic bag containing several other small bags of what looked like crack cocaine to me" (H. 17-18). Footnote The back-up crew arrived, and then Parker picked up the mattress and found a sawed-off shotgun wrapped in a plastic trash bag (H. 18-19). Finally, he found another sawed-off shotgun wrapped in a white trash bag on the floor of the bedroom closet, which was open (H. 20, 23). Parker believed that from where Skillman was standing with defendant while he searched, she could only see partially into the bedroom and could not "see exactly what [he] was doing" (H. 30-31).

Back out in the kitchen area, Parker noticed, on open shelving, a "couple boxes" of assorted ammunition (H. 21-22). Also, on top of the refrigerator, he saw a stun gun (H. 22). Beyond the contraband, nothing was seized from the apartment that day but $420 in a styrofoam cup on the table, which was discovered by a police detective who arrived later (H. 24).

The next day, Parker obtained a search warrant for documents that might show that defendant lived in the apartment (H. 24-25). He did not claim to have found any significant evidence in the ensuing search (H. 25-26).

Following preliminary argument about the ramifications of Parker's testimony, the judge reserved decision (H. 34-39) and defendant testified. He claimed that he was only reaching to turn off his television, with nothing in his hand, when Parker yelled, "Drop it. Drop it" (H. 41). He admitted that the .45 was on the table, but he denied that he ever picked it up or that it was dropped to the floor (H. 41). He also denied that the MAC-11 was readily visible; he said there were clothes on top of it (H. 47). And he denied that the crack cocaine was visible to a person merely standing by the table; he said it was behind the "biggest picture" on top of the television, and to see it one would have had to look behind the picture or move the picture (H. 49). Footnote

Skillman testified that she was in defendant's apartment initially for only about three minutes before she went to call for back-up assistance (H. 64). Footnote She said that after her return to the apartment she was watching defendant and was not paying full attention to the further search (H. 65-68).

Defense counsel argued that apart from the .45, which was concededly in plain view, all the evidence was seized unconstitutionally in violation of Maryland v. Buie, 494 U.S. 325 (1990) (H. 35, 75). She argued that Parker's further searches were not permissible because he was not in fear of attack by another person and he was only looking for guns, without probable cause to do so, and without a search warrant (H. 35, 75-76).

The prosecutor argued that Parker's search for guns (and the seizure of the drugs, as well) was permitted by Buie's "protective sweep" doctrine, as interpreted by this Court in United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1993), and by the District Court in United States v. Henry, 797 F.Supp. 1 (D.D.C. 992) and United States v. Mark Allen Ford, No. 91-347 (D.D.C. Sept. 30, 1993) (H. 37-38, 70-72, 77-79). Footnote

The judge reserved decision, and the next day, October 13, 1993, he denied the motion in the following oral decision:

All right. I would like to write an opinion like Jude Aubrey Robinson, if I could. I'm not sure I could do as well as Judge Robinson. He does so well. But I don't have the time to sit down and write a decision on this matter. Therefore, I will make my findings and conclusions in open court here. These constitute my findings and conclusions and will be recorded by the reporter, and they stand as my conclusions.


The long and the short is that I deny the defendant's motion to suppress. I find as a fact that the officers came to the defendant's apartment to execute a bench warrant. They knocked on the door for several minutes before he opened the door.


Eventually he opened the door, wearing only a bathrobe. They advised him of their purpose, and he asked if he could get dressed. He then went towards his bedroom with the marshal following him. And when he entered his bedroom, he reached for and picked up a loaded .45 caliber semi-automatic handgun, pointed it at the marshal. The marshal unholstered his gun and advised the defendant that he would shoot him if he did not drop it. Whereupon the defendant dropped the weapon.


The defendant then was handcuffed, and the marshal then went back into the bedroom to recover the gun. And when he did so, he saw in open view, plain open view, a gun magazine, another handgun, a Mack .11 [sic] handgun. There was also a partially hidden bag containing crack cocaine. The marshal looked into the closet which was open. He could see what appeared to him to be a shotgun, a weapon wrapped in a plastic garbage bag. It was in open view, and it appeared to him to be a weapon, and he was correct.


Now, in the process, the marshall searched--I won't say searched. He conducted a sweep of the room, including reaching in between the mattresses, There were two mattresses on the bed. There he found another shotgun, and that's the only item in this whole thing that is in any question whatsoever. Everything else, the ammunition, everything I have mentioned, all of that was in plain open view, and he had a write [sic] to view as he was executing his warrant and after the defendant and after the defendant had pulled a weapon, he had the right to arrest him, make a sweep of the premises to see that there were no further contraband or no further weapons.


So all told, we boil down to the only question is the retrieval of the one shotgun from under the mattress. Under the facts of this case, it doesn't make really any difference, because there is so much that there is just no question about whatsoever, I could suppress it, but even if -- but I think under Judge Robinson's rationale, and that of the other cases he cites, that it was part of a legitimate sweep of the premises following the defendant's action in the arrest.


But even if there were a question, I would say that the doctrine of inevitability is applicable here. The government promptly got a search warrant to search for indicia of ownership of the apartment and so forth, and if the weapon had not already been secured, it would have been during that, so that doctrine is applicable, even if there were any question about the sweep and the discovery of the weapons subject to the sweep.


Accordingly, I will deny the motion to suppress all of the items in evidence here. Just one moment. (Brief Pause.)


Having checked with my lawyers, he advises me I have not missed anything that I needed to cover, so these will constitute my findings and conclusions.

(P. 2-4).


The judge should have suppressed the drugs and the guns found in the second warrantless search of the bedroom. Immediately after the arrest, in the dim light of the television in the bedroom, the marshal was legitimately able to observe the two handguns and the magazine he seized there. However, the marshal's later return to that "very dark," "very small" room admittedly to search only for additional guns, which he did only after opening the window blinds so that he "could see," was not the equivalent of a permissible "protective sweep" of the area adjacent to the arrest for other persons who might have attacked him. This Court's recent reversal of the District Court's decision in the Ford case, upon which the Government and the judge relied below, conclusively establishes the error of the judge's main rationale for denying the suppression motion. United States v. Ford, 56 F.3d 265 (D.C. Cir. 1995).

The judge's alternative theory, that discovery of the evidence not initially seized from the bedroom would have been inevitable during the next day's execution of the warrant to search for documents, is not supported by the evidence. The Government did not prove either that the apartment was secured between the initial events and the execution of the warrant or that the document search routinely would have extended to the locations where the drugs and the other guns were found. Thus, the Government failed to make the required showing, by a preponderance of the evidence, that the drugs and the other guns still would have been in the apartment when the search warrant was executed, and that the document search therefore would necessarily have led to their discovery.

The suppression of the drugs will require the dismissal of both charges to which defendant conditionally pleaded guilty: possession of cocaine base with intent to distribute and use of the handguns in relation to drug trafficking.



Standards of Review

Findings of fact upon motions to suppress evidence are reviewed under the clearly erroneous standard, and legal conclusions are reviewed de novo. United States v. Taylor, 997 F.2d 1551 (D.C. Cir. 1993). In reviewing inevitable discovery findings the Court considers whether the facts in evidence supported the Government's claims. See United States v. $638,558.00 in U.S. Currency, 955 F.2d 712 (D.C. Cir. 1992); United States v. Gale, 952 F.2d 1412, 1416 (D.C. Cir.), cert. denied, 112 S.Ct. 1302 (1992).

A. The deputy's return to the bedroom to search only for guns did not qualify as a permitted "protective sweep" to guard against possible attack by another person.

In United States v. Ford, 56 F.3d 265, 268-270 (D.C. Cir. 1995), this Court rejected the Government's contention that a "protective sweep" of the immediate vicinity of an arrest under the authority of Maryland v. Buie, 494 U.S. 325 (1990), could properly include a search for concealed dangerous weapons. The Ford opinion noted that once the appellant was in custody, he posed no threat, and it quoted a 10th Circuit opinion, United States v. Tisdale, 921 F.2d 1095, 1097 (10th Cir. 1990), cert. denied, 502 U.S. 986 (1991), that said, "[T]he danger which justifies a protective sweep comes from the possible presence of other armed and dangerous persons in the vicinity" (emphasis in original). Thus, Ford concluded that the search under the mattress and behind the window shades--where persons other than the appellant could not have been hiding--was not justifiable as a protective sweep. 56 F.2d at 270. The search in issue here requires a like analysis and conclusion.

Deputy Marshal Parker admitted that when he returned to the bedroom after seizing and securing Mr. xxxxxxx and the two guns and the magazine he had initially observed, his only purpose was "to see if there were any more guns in there" (H. 17). He was not looking for another person (H. 27, 28). Indeed, if Parker had had feared the possible presence of anyone else in the very small room or its open closet when he first went in to retrieve the .45, that would have been the appropriate time to conduct a protective sweep, not several minutes later. To legitimize the later foray, Parker would have needed a reasonable belief, based on "articulable facts," that the bedroom harbored someone posing a danger to those at the scene. Buie, 494 U.S. at 334; Ford, 56 F.3d at 268-269. Lacking either a subjective fear or an objective suspicion that another dangerous person was present, Parker manifestly was not entitled to search further in the bedroom.

The hearing judge's oral opinion began with certain clear errors of fact. Footnote He said that Mr. xxxxxxx pointed the .45 at Parker, but there was no such testimony. Rather, the deputy testified that after picking the gun up, defendant "tried to secrete it in front of himself" (H. 11). More important for instant purposes, the judge was mistaken in stating that Parker saw the bag containing the drugs and the plastic-wrapped shotgun in the closet when he first entered the bedroom to pick the .45 up from the floor near the television table. Parker explicitly testified that he saw the drugs and that shotgun only when he ventured into the room at a later time, and then only after he opened the window blinds so that he could see (H. 17-20). In short, the judge clearly erred in finding that the drugs and the gun in the closet were in "plain" or "open" view earlier, when the marshal legitimately seized the .45, the MAC-11, and the magazine. Footnote

It follows that the protective sweep rationale, applied by the judge to the shotgun found under the mattress, was also the only arguable justification for the seizure of the drugs and the shotgun in the closet. The judge said,

. . . I think under Judge Robinson's rationale, and that of the other cases he cites, that it was a part of a legitimate sweep of the premises following the defendant's action in the arrest.

(P. 4). Obviously, he was referring to the apposite opinion of then Chief Judge Aubrey Robinson in Ford, upon which the Government had understandably relied. And now that Ford has been reversed and it is clear that a protective sweep must be for persons, rather than solely for weapons, the denial of the suppression motion in the instant case must be reversed, as well.

B. The evidence did not support the judge's alternative finding that the proceeds of the warrantless search would inevitably have been discovered in the execution of the search warrant for documents the next day.

In Nix v. Williams, 467 U.S. 431 (1984), the Supreme Court adopted the "inevitable discovery" exception to the exclusionary rule, applying it where investigators violated the defendant's right to counsel in eliciting from him the location of a victim's body, but the state claimed the body would have been found in any event. The Court wrote,


If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means--here the volunteers' search--then the deterrence rationale [for the exclusionary rule] has so little basis that the evidence should be received.

Id. at 444. In the footnote following this sentence, the Court commented that


. . . inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment and does not require a departure from the usual burden of proof at suppression hearings.

Id. n.5. Apparently, the last clause was in response to the call of the dissenters, as well as the defendant, for a "clear and convincing" standard of proof. Id. at 459-460. However, it is plain that suppression of illegally seized evidence cannot properly be avoided by merely speculating about what might have been, which was all the hearing judge did in the instant case.

This Court has discussed the teachings of Nix in two recent cases, affirming denial of the defendant's suppression motion in one, United States v. Gale, 952 F.2d 1412 (D.C. Cir. 1992), and affirming the suppression of the evidence in the other, United States v. $638,558.00 in U.S. Currency, 955 F.2d 712 (D.C. Cir. 1992). In Gale, the Government conceded that the police had violated the defendant's Miranda rights in learning from him where in his car drugs were located, but the discovery of the drugs in the inventory search that would have followed the defendant's legal arrest was found inevitable. 952 F.2d at 1416-1417. The Gale Court took notice of the specific Metropolitan Police Department inventory search procedures that would have led to the finding of the drugs. Id. at 1416 n.7. In the Currency case, where the defendant train passenger was legally arrested at Union Station, the judge found, and this Court agreed, that the evidence about police procedures established that it was not inevitable that the defendant's suitcase would have been inventoried. 955 F.2d at 721.

It was noted in the Currency opinion that Nix involved not "primary" evidence, directly obtained by means of police misconduct, but "derivative" evidence, discovered after but as a result of the primary illegality. 955 F.2d at 719. This Court acknowledged that in a later case the Supreme Court declined to suppress illegally discovered primary evidence which was actually seized pursuant to a subsequent warrant based on independent information. Id. at 720; citing Murray v. United States, 487 U.S. 533, 540-541 (1988). Nevertheless, this Court cited multiple authorities for the fundamental proposition that illegally seized primary evidence must be suppressed, and it pointed out that in Gale, it had suppressed the primary evidence. 955 F.2d at 719, 720. Accordingly, this Court should rule in the instant case that the inevitable discovery doctrine was inapplicable, because the drugs and the shotguns were primary evidence seized during an illegal search.

But even if the inevitable discovery doctrine may properly be invoked in the instant circumstances, it offers the Government no refuge. The Currency opinion observed that


. . . since the police officers in Gale were not in a position to calculate, at the time they conducted the illegal interrogation, that the drugs were in a location to be inventoried later, no deterrent purpose would have been served by excluding the drugs themselves . . .

955 F.2d at 720. In the instant case, in contrast, Parker obviously was in a position to calculate after seizing the first two guns that a search warrant for guns might turn up more contraband. Thus, the deterrent effect of the exclusionary rule would be served by suppression of the evidence. The Government should not be rewarded for Parker's decision to cut constitutional corners.

Moreover, the judge's inevitable discovery finding was simply unsupported by the evidence. The Government raised its inevitable discovery claim in the written opposition to defendant's motion (Opposition at 9-10). But no proof was presented at the hearing that if Parker had not discovered and seized the drugs and the shotguns, he or another officer would routinely have discovered them anyway. True, Parker did obtain a warrant for a document search the next day, but it is far from self-evident that that search would have turned up the drugs and the shotguns. There was no evidence that the apartment was secured or even that securing it would have been standard procedure to prevent removal of evidence after the arrest and initial search. Furthermore, in describing his document search, Parker did not claim to have focused on the places where he had found the drugs and the guns. Footnote

In United States v. George, 971 F.2d 1113, 1121-1122 (4th Cir. 1992), the Fourth Circuit vacated part of a suppression order and remanded for findings as to whether hacksaw blades that were found in a toolbox in the defendant's truck would inevitably have been discovered pursuant to standard police inventory procedures; there had been no opportunity at the suppression hearing thus to establish inevitable discovery. In this case, however, where the Government actually raised the issue initially and still failed to carry the burden established by Nix, the Government cannot reasonably claim it deserves another chance. The drugs and the shotguns must be ordered suppressed.



For the reasons stated above, the judgment should be reversed and the tangible evidence in issue ordered to be suppressed.

   Respectfully submitted,




   Allen E. Burns

   Assistant Federal Public Defender

   625 Indiana Avenue, N.W. Suite 550

   Washington, D.C. 20004

   (202) 208-7500


I HEREBY CERTIFY that the foregoing brief contains no more than the number of words allowed by Circuit Rule 28(d).


   Allen E. Burns


I HEREBY CERTIFY that on October 23, 1995, two copies of the foregoing brief for defendant-appellant were served by United States Mail, first-class postage paid, upon the United States Attorney's Office, Attn: A.U.S.A. John R. Fisher, 555 Fourth Street, N.W., Room 10-435, Washington, D.C. 20001.


   Allen E. Burns


Pursuant to Circuit Rule 28(a)(1), appellant, xxxxxxx xxxxxxx, states as follows:

A. Parties and Amici

The parties on this appeal are appellant, xxxxxxx xxxxxxx, and appellee, the United States of America ("the Government"). There are no intervenors or amici.

B. Rulings Under Review

The appeal challenges the denial of Mr. xxxxxxx's motion to suppress tangible evidence in an oral opinion on October 13, 1993 by visiting United States District Judge Howard C. Bratton, and the ensuing judgment upon Mr. xxxxxxx's conditional plea of guilty. The opinion appears at pages 2-4 of the October 13, 1993 transcript and is set forth in the brief for appellant at pages 8-9.

C. Related Cases

To appellate counsel's knowledge, there are no related cases and this case has not