thank you your honor may it please the court i am rebecca curbs on behalf of mr arthur waters this morning this case concerns the validity of a protective sweep of my client's home after law enforcement officers made an in home arrest pursuant to a warrant during the sweep officers moved a couch away from the wall to look behind it to see if anyone was hiding and in doing so they found a gun and my client was that transcript they never no one who testified ever gave an indication of how long the sweep took so i have no idea on that issue the officer detective miller i believe it was she took the responsibility of moving into the living room and looking at the stairwell so he said i was focused on the stairwell he didn't say i went up the stairwell to do the bedrooms in the bathroom up there so unfortunately the record is very unclear on that we have no evidence to let us know whether the scope requirements of maryland versus buoy were complied with  two small right two small bags of marijuana were found up stairs and then at some place in the home two pills of ecstasy but they didn't know they never said that it was during the sweep so i'm assuming it was after the war was served the drugs that were found during the sweep were on the floor of the living room small baggie marijuana pipe and a grinder and the reason i asked about t concerned about their there are safety that's the primary purpose but in this case the magistrate judge found that the sofa was very close to the wall the client's girlfriend testified wonder two inches it's just i think common sense says it is highly unlikely that someone is behind that sofa now what the officer did was who had the responsibility for that area he walked up to the sofa said he gave it a little hip check the sofa moved i think that indicates that it's highly unlikely that there's an adult person weighing i don't know hundred forty hundred fifty pounds i don't think the sofa would've moved at there someone actually inside that couch we also have photographs bottom of the couch from the floor roughly two inches or so half the width of a dollar belt is how they measured out so it's just not reasonable to really think i think there's someone under this couch behind this couch or inside the couch and the obvious or sad i had to pull the couch away from the wall because i wanted to see if someone was behind it if it's so close you can just take a quick look in tell there's nobody there there's no articulation of any reasonable faster inferences as to why someone would be in that i think you need well first of all touchdown to all fourth amendment analysis is it reasonable and it's just not reasonable to believe someone is behind this couch there are two problems to bowie like you said there's instances where you don't need reasonable suspicion to do the quick visual sweep in if it is incident to the arrest and if it is in the immediate area second in believing that the area to be swept harbors an individual posing a danger to those on the arresting so he'd the better straight judge to use that second prong requiring reasonable suspicion so there's two problems i think one we've already discussed is it reasonable that the person is behind underneath the couch but two it's not simply bluey doesn't simply apply to any person other than the defendant being in the house the person has to be dangerous and the magistrate judge relied on to fact to reach that prong of the standard when the officers came up to the house they were they had various officers around it some movement and an up stairs window one saw movement at a lower window it could be inferred from that evidence that a second person was inside the home someone other than mr waters  second fact or there the second rationale that the court relied on is the one that i have the problem with he said that that in any case basically involving drug trafficking it will be reasonable to do a protective sweep and he's relying on a case called united states versus cash and quoting from cash he said an officer arresting a suspected drug trafficker in one room of a  multiroom residence is justified in conducting a sweep out of concern that there could be individuals working in other rooms who may resort to violence to thwart the arrest cash i think is quite readily distinguishable on its facts in that case the defendant a woman officers were i believe serving a no contact order on her they knew from an informant who had been in the home that she had a large brick of what was assumed to be marijuana and a large brick of a white powder probably cocaine the person who saw this in her possession confronted her on why she had these drugs and she kind of shrugged it off saying well i have to make a living so we have large quantities of drugs we also have a defendant essentially admitting that she is a dealer in this case our information comes from a vehicle stop that was done during the course of the surve the officers a stop to stop a gentleman in his vehicle and ask him a few questions he agreed to make a phone call to mr waters to verify that they had the right house that he was inside and he was going to be there for a while during this found conversation mr water said something like i'll be here for a while i have what you need or you can get what you want something like that what we don't have in the record is any other information that could have been acquired from this gentleman he had said he bought drugs in the past from mr waters he never said what kind of drugs or in what quantities we don't know if pete is routine was to purchase a user amount of marijuana or if he was going to pick up kilos of cocaine that he was going to then distribute from mr waters we don't know that mr waters is running a large scale drug trafficking operation and that was the critical factor in no i do not and just because in cash the court was quite specific to refer to large scale trafficking they were also noted that it was important that the officer who testified not to the point where we can over generalize in my opinion and say that in every drug trafficking case we're going to let you do an automatic buoy sweep and i think  if the couch if it's unreasonable to get behind the couch we're done mr waters wins if you come to the conclusion well maybe there was a person behind  underneath the couch then you have to assess but was it a dangerous person the mere fact that others are in the home doesn't satisfy billy the requirement is that there are other person they're assessing dangerousness is a recent case would be as much more out of the circuit they knew that individual to have concealed weapons on him frequently they knew his prior criminal background and i do believe that if you get to the point where you have some indication there is very likely to be guns in this home and you combine with the that with the fact a reasonable belief that there's another person in the home i think you're going to meet bluey we have no evidence that anybody is it in this house that has a weapon they never asked the man who they did the car stop on does mr waters typically carry weapons have you ever seen him with the weapon have you ever seen anyone in the home with a weapon does he associate with a large group of people or any sized group of people who assist them in some type of drug operation we just don't have the facts discovery there was never a question of well if officer if you hadn't found the gun would you really have got a gotten a search warrant for a misdemeanor amount of marijuana that you saw secondly it wasn't raised on appeal in the government's brief i think that is a waiver although it was briefly mentioned in the district court it was not in the government's brief to my recollection i'd like to save thirty seconds if i can please the court my name is bruce clark of reps of the united states in this case and is the court noted but we has two prongs one is a search of the immediate area without any kind of suspicion one and the second prong is a more extensive search based on reasonable suspicion that an individual posing a danger may be present when you take a look if you  when you read the testimony in this case what happens is the officers confirm to another person that the defendant is there and that he has drugs he's selling drugs they follow the girlfriend back out they stop her she actually calls him so that they don't bust down the door and there are the officers who it making in the rear entry they knock they announce they asked him to come out he doesn't come out eventually they breach the door and when they walk in there walk basically into the rear door walks into a utility room in the kitchen is immediately to the right they walk into the kitchen and the first time they see mr waters is he's in the living room he's not here he said i'm coming down but they didn't see him come down the stairs the first time they see him he's in the living room now importantly for that is that before the breach they were told that there were blinds moving on the second floor and then there were also blinds moving on the first floor as well so whether the defender was up stairs or downstairs the first time i see him he's east downstairs w l yeah i think if you take a look at the at the exhibit is specially governments exhibit five maybe the best it's not a great picture but it's a picture of the couch and the entrance to the kitchen this is a very small  house they see the defend it there they make them walk across the room and they take into custody in the kitchen but if you take a look at the edge exhibit five between say the arm of the couch and the kitchen is about that much space so the united states w this evidence was also that they have found individuals hiding in various places and they need to check out any place where a diff a defender or individual could be hiding not well yes yes it has to be big enough to hide somebody right but if somebody could he what happened was he hip check the hair out to see how heavy it was to see if somebody would be in the couch and then he moved the couch out and you look at the bat the back of a couch is not an impenetrable wall if there's no fabric back there there's nothing back there somebody could have got behind the couch pulled it in it's plush against the wall he's there and so he looked to see if anybody could have done that and that was all of the emmy needed there's no further sweep but that he just checked the weight and look at the back to see if anybody could be hiding there now the fact that it was flushing as well does not preclude somebody hiding there especially as i noted if there is no back to the couch so that it when you take a look at it that's mediately adjacent and the evidence was that this was clearly a large enough to hide an individual when you take a look at the pictures that it's a standard couches it's easily large enough to hide an individual and we have it's was that they were taught to check areas where an individual could be hiding for their own safety so that  basis united states believes that alone is sufficient basis to justify protective suite the magistrate court also found that there was reason to believe that a person who posed a danger could was sufficient time for somebody to hide because they didn't make a non announced entry so i believe that the evidence would support what the magistrate found in this case i think the first pro applies but no i don't believe so your honor what bluey says is an individual who could pose a danger and what mr waters is arguing is what that means is a dangerous person and i don't think that's the finding if you take a look there's a certain case pile u s b pile decided this year and in that case an individual who actually were i think the facts of the case where they were trying to buy drugs from me didn't sell that many drugs but the a trooper came up and was talking to him and he said it was a camera there is it is anybody in there he said my friend and he goes over he opens it tells his friend to get out there was no showing that the friend was dangerous or anything like that in this case there wasn't even a drug transaction that that occurred i don't think there's a requirement that the officer somehow make an independent assessment that this individual is dangerous although the measure said based on the cache case there are weapons and violence associated with drug transactions i don't think that there's a metric to decide whether if you're a big drug dealer or a small drug dealer you might or might not engage in violence so i i think that there is evidence based on what they knew at the time that this could could be a dangerous individual but i don't think there's a one of the one of the officers testified that it took about five minutes to affect the arrest of mr waters before he was taken out and he could remember where the protective suite started before or after that five minutes but we're talking a relatively short period of time there in answer to a question from the court the officer said we we arrested and we continued the protective sweep and that was the the deputy made the check on the catch i don't believe there's any evidence this was an extended period of time that they were doing it but the argument in the brief was that they didn't have to do a protective sweep because mr waters had been taken from the residence there are any one of a number of cases who have not well once he secured and handcuffed and arrested he no longer poses a danger and he has been secured he no longer poses a danger the question is whether somebody else could pose a danger to the officers who were present on the scene and case at that point there was the holding was that robbery was not a crime of violence under the guidelines about twenty seventeen beccles came down and determined that the  robbery that the guidelines are not unconstitutionally vague under the johnson case therefore those would have been the seventy seven month guidelines would have been the appropriate guideline range and that was set within the guidelines range independently of that he has three robbery convictions and but for johnson he would be looking at not less than fifteen years so i think the court sentenced him based on his conduct rather than the definition of whether something is a crime of violence or not if there are no further questions regarding the the search thank you oh i'll be very brief i think you didn't always say well it's possible someone could be in the couch but it's just not a realistic possibility as counsel pointed out maybe the fabric has been removed you pull the couch out you have to get in it and you have to then scoot yourself back so it's a flush against the wall again and you do all of those without disturbing end tables on either side of the couch that have lamps on top of them  i just don't see the reasonableness of that if we're going to say anyone could hide in any couch that is large enough than we have a purse a rule that now you get to look behind every single couch any time you do a buoy protective swee it's not in keeping with buoys requirements at all i'm not saying that you need to know the identity of the person that could be in the home and some specific factual information about that person i'm not saying that there needs to be someone in there but they have to pose a realistic danger that's why cases look well where their cover their guns in the home do we need to have information that shows a realistic threat thank you