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Pursuant to Sixth Circuit Rule 206

File Name: 12a0012p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee/Cross-Appellant,

v.

FREDRICK D. TAYLOR,

Defendant-Appellant/Cross-Appellee.

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Nos. 10-3762/3875

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 09-00167-001—Edmund A. Sargus, Jr., District Judge.

Argued: November 18, 2011

Decided and Filed: January 13, 2012 

Before: KENNEDY, GIBBONS, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: Nicole Lynn Rutter-Hirth, RION, RION & RION LPA Inc., Dayton, Ohio,

for Appellant. Christopher K. Barnes, ASSISTANT UNITED STATES ATTORNEY,

Cincinnati, Ohio, for Appellee. ON BRIEF: Jon Paul Rion, RION, RION & RION

LPA Inc., Dayton, Ohio, for Appellant. Robyn Jones Hahnert, ASSISTANT UNITED

STATES ATTORNEY, Columbus, Ohio, for Appellee. 

_________________

OPINION

_________________

KETHLEDGE, Circuit Judge. Fredrick Taylor entered a conditional guilty plea

for conspiracy to distribute 1000 kilograms or more of marijuana in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), and 846, and possessing a firearm in

furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i). He now

argues that the district court should have suppressed drugs and firearms that the police

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Nos. 10-3762/3875 United States v. Taylor Page 2

found in his home after executing two arrest warrants there. Specifically, he disputes

that the police discovered the evidence as part of a lawful protective sweep. We disagree

and affirm. 

I.

Between June and September 2008, the police surveilled 1206 Rendezvous Lane

as part of an investigation into a drug-trafficking operation. They watched people travel

between the Rendezvous house and other houses under investigation. In the curbside

trash they found marijuana paraphernalia, an empty ammunition box, and mail addressed

to two people, including Taylor. On October 2, 2008 the police executed a search

warrant at Rendezvous and found “numerous firearms.”

Several months later, the government indicted Taylor and 28 others in connection

with the drug-trafficking operation. Some of the defendants were also indicted on

firearms charges. On March 4, 2009, the police obtained arrest warrants for all 28

defendants. The police drove to the Rendezvous house because they “had an idea” that

Taylor “could have been” there. An officer knocked on the door. A woman who was

herself an arrest target answered it. Recognizing her, the officer immediately stepped

in and arrested her. He noticed a man in his early twenties sitting in the living room.

The officer asked if Taylor was in the house. Another woman came down the stairs from

the second floor and asked, “What’s going on?” The officer repeated his question.

Taylor then appeared at the top of the steps. Taylor followed orders to come downstairs

and submit to arrest. All of this occurred within one minute of the officer’s entry.

While the arrests were underway, other officers followed their “standard

procedure” and conducted a protective sweep of places in the house that were large

enough to hold a person. Some officers went upstairs to secure the bedrooms. There

they discovered a handgun and bag of marijuana on a dresser. Other officers found a

semiautomatic machine gun in a closet near the living room. 

Around the same time, another officer spoke with the woman who had come

downstairs. She said that her baby was upstairs. An officer took her to retrieve the
Nos. 10-3762/3875 United States v. Taylor Page 3

child. When she returned, an officer brought her to an isolated room so that she could

nurse the baby. The woman told the officer that there was a gun in the room’s couch.

The officer searched the couch and found the gun underneath. 

Officers then held Taylor and the woman arrested at the door for 30 minutes until

transportation arrived. The police also obtained a search warrant for the house, citing

the firearms found there. Acting on the warrant, the police found more drugs and drug

paraphernalia. Based on the evidence found at Rendezvous on March 4, the government

added Counts 13–15 to Taylor’s indictment. Those counts charged him with maintaining

the house to store and distribute marijuana, possession of guns in connection with drug

trafficking, and possessing a firearm as a felon. The government also sought forfeiture

of guns, ammunition, and some money found in the house. 

Taylor moved to suppress evidence from the March 4 sweep, among other

searches. The district court denied the motion. Taylor then entered a plea agreement

under which the government would drop Counts 13–15 (among other counts) and Taylor

would conditionally plead guilty to several other charges, including the forfeiture counts.

The condition was that Taylor reserved his right to appeal the denial of his suppression

motion. The district court entered judgment consistent with the plea agreement. Taylor

now appeals.

II.

A.

We note at the outset that the government’s agreement to drop Charges 13–15

does not moot Taylor’s appeal. The government acknowledges that the two forfeiture

counts to which Taylor pled guilty also turn on evidence seized during the March 4

sweep. See generally United States v. Fifty-Three Thousand Eighty-Two Dollars, 985

F.2d 245, 250 (6th Cir. 1993) (“[T]he exclusionary rule applies to a forfeiture proceeding

because of its quasi-criminal nature”). Moreover, Taylor could withdraw his guilty plea

if he prevails in this appeal, since his plea agreement provides as much. Whether the

search was reasonable thus remains a live issue. 
Nos. 10-3762/3875 United States v. Taylor Page 4

Taylor argues that the officers’ entry into his home to execute his arrest warrant

was unconstitutional because the police had no reason to believe that he was in the home

at the time of the search. See generally Payton v. New York, 445 U.S. 573, 602–03

(1980); United States v. Hardin, 539 F.3d 404, 421–24 (6th Cir. 2008). As an initial

matter, the police had previously found Taylor’s mail at the house. But more to the

point, the police did not barge into Taylor’s home; they knocked first, which they are

entitled to do. See El Bey v. Roop, 530 F.3d 407, 417 (6th Cir. 2008). And the person

who answered the door was also a target of the arrest warrant. At that point, the police

had reason to believe a suspect was inside the Rendezvous home—one was standing

before them—and they legally entered to arrest her. See Payton, 445 U.S. at 603. The

initial entry was therefore constitutional.

Next, Taylor argues that the sweep of his house was unconstitutional. The police

can search a home pursuant to arresting someone there if there are “articulable facts” that

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.” Maryland v. Buie,

494 U.S. 325, 334 (1990). The sweep must last no longer than necessary to “dispel the

reasonable suspicion of danger” and include only “spaces where a person may be

found.” Id. at 335–36. Here, Taylor contends the police swept the house not because

they had an articulable suspicion that a dangerous third person was present, but merely

because it was their “standard procedure.”

The police cannot justify a sweep simply by citing their standard procedure. See

United States v. Williams, 577 F.3d 878, 881 n.3 (8th Cir. 2009). But there were other

justifications here. Id. First, the officers had reason to believe there were more people

in the house. They had seen several people upon entering, and their prior surveillance

and search of the Rendezvous home suggested that it had been a hub for a drugtrafficking organization. Second, the officers had reason to believe that the other people

were armed: The 2008 search at Rendezvous uncovered guns, and the arrest warrants

for some of Taylor’s cohorts included gun charges. These two factors—that officers

observed other individuals in the house and had reason to believe they were armed—can
Nos. 10-3762/3875 United States v. Taylor Page 5

be sufficient to justify a protective sweep. See United States v. Beasley, 199 F. App’x

418, 423 (6th Cir. 2006) (per curiam) (allowing protective sweep of defendant’s hotel

room where defendant had just been arrested in the parking lot for firearm and drug

possession and officers had observed another person watching the arrest from inside

defendant’s hotel room). Third, the police had a specific basis to believe that people

might be found in either the upstairs bedroom or the downstairs closet because they saw

other people on each floor when they entered the house. Thus, the protective sweep

permissibly included both of these areas. This fact alone distinguishes this case from

United States v. Akrawi, 920 F.2d 418, 420 (6th Cir. 1990), where we found the

protective sweep of a second floor unlawful because “agents heard no noises or voices

that indicated anyone might have been in hiding on the second floor” and “articulated

no specific basis for believing that the second floor . . . harbored any individual posing

a threat to the agents.” 

Moreover, the sweep did not last longer than necessary. The officer who found

the gun and drugs upstairs did so immediately after the first arrest. And the officer who

found the machine gun in the closet testified that the closet was the “first spot” he

cleared after entering the house.

Taylor counters that, under the guise of waiting for transportation, the police

intentionally prolonged the sweep to gather additional evidence against him. But we

view the evidence in the light most favorable to the government. United States v.

Navarrow-Diaz, 420 F.3d 581, 584 (6th Cir. 2005). And here, at least two officers

testified (credibly, in the district court’s view) that they merely “h[eld] the scene” while

waiting for transportation to take Taylor away. He cites no evidence to the contrary.

The sweep was therefore justified under Buie, and thus the police lawfully obtained the

evidence on the dresser and in the closet. 

That leaves the officer’s search under the couch. As noted earlier, a woman in

the home had asked to nurse her baby; for privacy, the officer suggested that she use a

back room; and the woman said there was a gun in the couch there. So the officer

looked around the couch and found a gun underneath. Although this search was not part
Nos. 10-3762/3875 United States v. Taylor Page 6

of the protective sweep, it was reasonable. Executing a warrant in a home—particularly

a home used in a narcotics conspiracy—is “the kind of transaction that may give rise to

sudden violence.” Michigan v. Summers, 452 U.S. 692, 702 (1981). And officers

executing an arrest warrant in a house are entitled to take “reasonable steps to ensure

their safety.” Buie, 494 U.S. at 334. 

We think it plain that the search under the couch was such a “reasonable step[.]”

Id. The officer was about to yield control of the area around the couch to one of the

home’s occupants. The woman herself said there was a gun there. He could not allow

her potentially to take possession of the gun. It was therefore reasonable for him to

search for the gun and take possession of it himself. Hence the search was

constitutional. Cf. Michigan v. Long, 463 U.S. 1032, 1049–50 (1983) (holding that the

police can conduct a protective search of the area within a person’s grab space, even if

the person is not under arrest, if they have reasonable suspicion to believe that the person

is dangerous and can gain immediate access to a weapon); United States v. Bohannon,

225 F.3d 615, 617–18 (6th Cir. 2000) (upholding Terry frisk of person detained at home

during execution of search warrant). 

B.

The government cross-appeals, arguing that the district court should have

imposed a five-year sentence, to run consecutively with Taylor’s ten-year sentence for

the marijuana conspiracy, for possessing a gun in furtherance of a drug trafficking crime

in violation of 18 U.S.C. § 924(c)(1)(A). In the government’s view, § 924(c)(1)(A)

imposes a mandatory five-year minimum for possessing a firearm in furtherance of a

drug crime so long as no other provision of law imposes a higher mandatory minimum

for the § 924(c) violation.

The Supreme Court adopted the government’s reading of the statute during the

pendency of this appeal. See Abbott v. United States, 131 S. Ct. 18 (2010). We therefore

vacate Taylor’s sentence and remand for resentencing consistent with Abbott. 

Taylor’s sentence is vacated, and the case is remanded for resentencing.