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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 20, 2003 Decided June 17, 2003

No. 01-3016

UNITED STATES OF AMERICA,

APPELLEE

v.

ERIC SEAN REDMAN, A/K/A ERIC REDMOND,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 00cr00198–01)

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for the appellant. A.J. Kramer, Federal

Public Defender, was on brief.

Patricia A. Heffernan, Assistant United States Attorney,

argued the cause for the appellee. Roscoe C. Howard, Jr.,

United States Attorney, and John R. Fisher and Roy W.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

McLeese III, Assistant United States Attorneys, were on

brief.

Before: HENDERSON and TATEL, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Eric Sean

Redman (Redman) appeals the district court’s denial of his

motion to suppress evidence, asserting that the police search

incident to his arrest violated the Fourth Amendment to the

United States Constitution. As explained below, we conclude

that Redman waived his challenge to the protective sweep

and, accordingly, we dismiss his appeal.

I.

Redman entered a conditional guilty plea, see FED. R. CRIM.

P. 11(a)(2), to one count each of unlawful possession with

intent to distribute five grams or more of cocaine base, 21

U.S.C. § 841(a)(1), (b)(1)(B)(iii) (2000); unlawful possession of

a firearm during a drug trafficking offense, 18 U.S.C. § 924(c)

(2000), aggravated assault, 22 D.C. CODE § 504.1 (Michie

1981), attempted assault with a dangerous weapon, 22 D.C.

CODE §§ 502, 103 (Michie 1981), attempted kidnapping, 22

D.C. CODE §§ 2101, 103 (Michie 1981 & Supp. 2001) and

attempted first degree sexual abuse, 22 D.C. CODE §§ 4102,

4118 (Michie 1981 & Supp. 2001). The evidence sought to be

suppressed was seized when the District of Columbia Joint

Fugitive Task Force (Task Force) executed a warrant for his

arrest at his apartment in the early morning of May 1, 2000;

the District of Columbia Metropolitan Police Department

(MPD) subsequently obtained a warrant to search the premises.

According to the testimony of government witnesses, four

FBI agents (members of the Task Force) executed the arrest

warrant. The agents arrived at the apartment at 6:30 a.m.

that day. Three agents stationed themselves at the front and

one at the rear of the building. One of the three at the front

knocked on the apartment door and announced, ‘‘Police, open
3

the door,’’ but received no response. When the agents

threatened to forcibly enter the apartment after waiting some

ten to fifteen minutes, Redman opened the door, put his

hands on his head and surrendered. During the ten to fifteen

minute interval, the agent in the rear saw someone briefly

peer out of the window of the apartment.

The agents entered the apartment and saw two female

teenagers on a couch in the living room adjacent to the entry.

The agents told them not to move and the women complied.

In plain sight on a window ledge in the living room was a

cigar box that contained ‘‘green baggies’’ and what appeared

to be marijuana. On a table in the living room, the agents

saw another cigar box containing another green bag.

After they secured the two women, the agents searched the

apartment for other individuals. They looked in a hall closet

ten feet from where Redman was being held and found a rifle

leaning against the wall and metal ammunition boxes on the

floor. In a bedroom across from the closet, they saw a knife

on a dresser and in the bedroom closet saw $900 in U.S.

currency. They also checked the bathroom but saw nothing

there. The agents secured the apartment and called MPD

Detective Jackson to investigate the scene. Before Jackson

arrived, one of the two females asked to use the bathroom.

An agent searched the bathroom for weapons before allowing

her to enter and discovered a shotgun in the bathroom linen

closet. The agents then noticed the barrel of a .22 caliber

revolver protruding from a duffel bag on the floor near the

front door.

Detective Jackson arrived at the apartment between 8:15

and 8:30 a.m. and, learning of the five items observed by the

Task Force—the green baggies, the .22 revolver in the duffel

bag by the front door, the rifle in the hall closet, the shotgun

in the bathroom linen closet and the currency—called a MPD

mobile crime unit to the scene to process the evidence. The

two females were still at the scene (Redman in the meantime

had been transported to jail by the Task Force) and remained

there while the mobile crime unit began processing the items

discovered by the Task Force. Jackson then decided that the
4

two should be taken to the MPD Seventh District headquarters for questioning. One of them needed additional clothing

so Jackson allowed her to retrieve clothes from the bedroom,

escorted by a female crime scene technician and him. As the

female picked up some clothes, Jackson saw a clear plastic

package containing what appeared to be a white rock on the

floor. Jackson also saw on the floor a round of ammunition of

a type not utilized by the weapons disovered by the FBI. At

that point, Jackson ordered everyone on the scene to stop

working, commanded that no one was to search the apartment further and then secured the premises to obtain a

search warrant. Jackson posted a uniformed officer in the

apartment and ordered everyone else to leave the scene

sometime between 9:30 and 10:00 a.m.

Jackson and another MPD officer returned about 3:00 p.m.

with a search warrant and began a search of the premises.

They discovered a .16 gauge shotgun in the bedroom closet, a

.12 gauge shotgun behind headboard in the bedroom, and a

7.62 millimeter assault rifle, a 9 millimeter handgun and about

$7,000 in U.S. currency in a dresser drawer in the bedroom.

In a plumbing access located in the wall between the bedroom

and the bathroom they found a plastic packet of white rock

and a magazine for the assault rifle and, in a jogging suit in

the bedroom, they found another plastic package with two

smaller packets, each containing a white rock-like substance.

The two officers also discovered in the bedroom what Jackson

described as a ‘‘radio code list,’’ used, Jackson testified, to

communicate in code via hand held radios.

Redman filed a Motion to Suppress Tangible Evidence on

September 7, 2000. In it, Redman challenged the Task

Force’s initial protective sweep that uncovered the green

baggies, the rifle, the $900, the shotgun from the bathroom

linen closet and the .22 caliber revolver. Motion to Suppress

Tangible Evidence, United States v. Redman, Crim. No. 00–

0198 (filed Sept. 7, 2000). Redman argued that the search

the Task Force conducted incident to his arrest went beyond

the protective sweep permitted by Maryland v. Buie, 494

U.S. 325 (1990), because it extended beyond the doorway

where Redman was arrested and lasted past Redman’s sei-
5

zure. Motion to Suppress Tangible Evidence at 5–6. Furthermore, Redman claimed, because there was no indication

that the arresting officers feared the two females found in the

apartment, the officers should not have conducted a protective sweep under Buie once they effected Redman’s arrest.

Id. at 6. Redman’s motion sought the suppression of the five

items discovered during the sweep along with the later discovered evidence because the latter constituted ‘‘fruit of the

poisonous tree.’’ Id. at 9–10.

At the suppression hearing, the court cautioned Redman’s

counsel that his questioning of a government witnesses went

beyond the scope of the hearing, noting, ‘‘[t]he scope of this

hearing is to find out whether this was a legitimate protective

search.’’ 9/12/2000 Tr. 99. Following the witnesses’ testimony, however, Redman changed the theory of his challenge.

Instead of seeking to suppress the five items discovered

during the Task Force’s sweep, Redman argued that the

items Detective Jackson later seized pursuant to the search

warrant should be suppressed. The thrust of Redman’s new

argument was the alleged inconsistency between Jackson’s

testimony and that of Redman’s witness, Lakeeshia Pendarvis, one of the females in the apartment when Redman was

arrested. Pendarvis testified that the officers at some point

placed two handguns on the living room table in front of the

couch where she sat whereas, according to Jackson, only one

handgun was found while the two females were there and it

was placed on the dining room table. The discrepancy,

Redman said, cast doubt on Jackson’s claim that certain

evidence, including one of the two handguns (the 9 millimeter), was not found until the search warrant was executed.

Redman insisted that because there were only two handguns

found in the apartment—the .22 caliber revolver from the

duffel bag and the 9 millimeter from the bedroom dresser—

one of the two guns Pendarvis saw the police place on the

living room table that morning—hours before the search

warrant was executed—had to have been the 9 millimeter.

And because, according to Redman, the 9 millimeter had to

have been discovered before the search conducted pursuant to

the warrant, and because no government witness testified
6

when the evidence seized with the 9 millimeter was found, ‘‘it

[was] at least unclear TTT that these other items were found’’

during the search pursuant to the warrant; therefore ‘‘the

[ ]9 millimeter handgun, the monies found in the dresser

drawer in the back bedroom, the shotgun, which was found in

the back bedroom after having allegedly removed the bedpost

from the front of the radiator, as well as the narcotics, which

were allegedly found in the back room, should be suppressed.’’ Id. at 177–78, 195–96. Redman’s counsel began by

stating that

in order to make a determination of whether or not

it is appropriate to suppress this evidence, we must

make our analysis in light of Bowie [sic] to determine whether or not the evidence that is elicited or

secured, ostensibly under the protective sweep, is

appropriately admitted in this case, and I would

represent that it is not.

Id. at 169. That evidence, he maintained, had to be suppressed because officers had conducted a full-blown warrantless search—not simply a protective sweep—that uncovered

the 9 millimeter and other evidence. In fact, Redman

summed up thus:

I will not endeavor to argue that the other five items

that were revealed during the protective sweep were

found in violation of the Fourth Amendment, but TTT

would submit that the [ ]9 millimeter handgun [and

other evidence from the bedroom] should be suppressed as violative of the Fourth Amendment.

Id. at 177–78.

Both the court and the government expressly noted the

shift in Redman’s position. The court stated that it had

‘‘thought that there was one thrust to the motion, TTT that the

protective sweep was improperTTTT [It] appreciate[d] that

[Redman’s counsel] did not argue that, because [it thought]

the testimony was very clear on that, very straightforward,

and very credible,’’ id. at 178, and the prosecutor stated ‘‘I

now take it that there is no challenge’’ to the sweep, id. at
7

183. Redman said nothing to correct the court’s and the

government’s interpretation of his argument. The district

court then denied Redman’s motion to suppress, concluding

that ‘‘the shotgun in the closet, the substantial amount of

cash, and the [ ]9 millimeter gun, a second shotgun, TTT were

found in places where they would not be seen in a proper

protective search’’ and ‘‘[t]hey were all items that were found

by Detective Jackson and Officer Costello subject to the

search warrant.’’ Id. at 202. The court rejected Pendarvis’s

testimony, finding that it was ‘‘not reliable for a number of

reasons.’’ Id. Redman then entered his conditional plea of

guilty and appealed.

II.

While Redman asserts on appeal that the district court

erred in denying his suppression motion, his challenge is not

the one he mounted at the hearing; instead he resurrects the

challenge he had originally made, namely that the sweep

conducted by the Task Force exceeded the limits of Maryland v. Buie because it went beyond the entryway and

continued after Redman had been apprehended. Quoting

Buie, Redman explains that two sorts of sweeps incident to

an arrest are permissible: ‘‘The first involves ‘look[ing] in

closets and other spaces immediately adjoining the place of

arrest from which an attack could be immediately launched.’

The second goes ‘beyond that,’ but is nevertheless circumscribed’’ to spaces where individuals might hide, and is lawful

only if based on ‘‘ ‘articulable facts which, taken together with

the rational inferences from those facts, 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.’ ’’ United States v. Ford, 56 F.3d 265, 268–69

(D.C. Cir. 1995) (quoting Buie, 494 U.S. at 334) (alteration in

original) (footnote omitted). He argues that the search conducted when he was arrested qualifies as neither because it

extended to the hallway and bedroom—too distant from the

entryway where Redman surrendered to qualify as the first

kind—and because the officers could not reasonably have
8

believed the two young females posed the type of threat

supporting the second kind.

Although the government denies that the sweep the Task

Force conducted was improper under Buie, it first asserts

that Redman waived his challenge to the Task Force sweep

because he withdrew that challenge at the suppression hearing. See FED R. CRIM. P. 12(b); United States v. Mitchell, 951

F.2d 1291, 1296–97 (D.C. Cir. 1991) (appellant waived challenge to search on appeal based on ground that search was

conducted without warrant because appellant’s ground for

suppression in district court was different, namely no probable cause), cert. denied, 504 U.S. 924 (1992); see also United

States v. Weathers, 186 F.3d 948, 952 (D.C. Cir. 1999) (‘‘unless

cause is shown, [Rule 12(b) claims] may not later be resurrected on appeal’’ (internal quotations omitted)), cert. denied,

529 U.S. 1005 (2000). We agree with the government.

Rule 12(b) of the Federal Rules of Criminal Procedure

requires that a motion to suppress evidence must be made

before trial and Rule 12(f) mandates that the failure to make

such an objection ‘‘shall constitute waiver thereof.’’1

 Waiver

not only plainly applies to an unmade pre-trial objection but

also to an objection initially made but subsequently with1 The applicable version of Rule 12(b) provided:

(b) Pretrial Motions. Any defense, objection, or request

which is capable of determination without the trial of the

general issue may be raised before trial by motionTTTTThe

following must be raised prior to trial:

TTTT

(3) Motions to suppress evidence; TTTT

FED. R. CRIM. P. 12(b) (2002). The applicable form of Rule 12(f)

stated, ‘‘Failure by a party to raise defenses or objections or to

make requests which must be made prior to trial TTT shall constitute waiver thereof.’’ FED. R. CRIM. P. 12(f) (2002). Rule 12 was

amended effective December 1, 2002 but the amendment does not

affect the outcome of this appeal. FED. R. CRIM. P. 12 advisory

comm. note. Rule 12(b)(3) is now included, unchanged, in Rule

12(b)(3)(C) and the waiver language of Rule 12(f) is now contained

in Rule 12(e). FED. R. CRIM. P. 12(b)(3)(C), (e) (2003).
9

drawn or abandoned. E.g., United States v. Sheppard, 149

F.3d 458, 461 (6th Cir. 1998) (defendant waived suppression

motion when he withdrew motion and never renewed it).

Based on Redman’s counsel’s statement at the suppression

hearing as well as the court’s and the prosecution’s response

to it, we conclude that Redman at that time withdrew his

challenge to the protective sweep. Redman does not dispute

that he altered the thrust of his argument at the hearing but

does dispute that his counsel’s statements constituted a withdrawal of his challenge. Instead, according to Redman, those

statements should be interpreted as a ‘‘choice not to embellish

on his written suppression arguments.’’ Reply Brief of Appellant at 4. Redman asserts that his counsel’s most damaging statement, ‘‘I will not endeavor to argue that the other

five items that were revealed during the protective sweep

were found in violation of the Fourth Amendment,’’ 9/12/2000

Tr. 177, did not ‘‘explicitly’’ withdraw his motion. Reply Brief

of Appellant at 4. Moreover, neither the district court nor

the prosecution viewed it as a withdrawal and hence a waiver

of his argument.

According to Redman, when the court stated, in response

to his argument, that it ‘‘appreciate[d] that [Redman’s counsel] did not argue [the protective sweep challenge] because

the testimony was very clear on that, very straightforward,’’

9/12/2000 Tr. 178–79, it meant only that Redman had wisely

opted not to belabor a losing argument, not that he did not

intend to preserve the argument. Redman relies on the fact

that the court made several factual findings relevant only to

the Buie sweep and ultimately issued a general ruling (‘‘there

are no grounds to suppress the tangible evidence under the

Fourth Amendment or any other provision of the Constitution,’’ id. at 203) which denied both the post-sweep challenge

articulated at the hearing and the initial sweep challenge

made by motion. Furthermore, Redman asserts, we cannot

construe the prosecutor’s statement ‘‘I now take it that there

is no challenge’’ to the protective sweep, id. at 183, as a

recognition of Redman’s intent to withdraw his motion directed at the sweep because the prosecutor then went on to
10

defend the Task Force sweep on the merits. We reject

Redman’s rewrite of the suppression hearing.

Redman’s counsel’s statement that ‘‘I will not endeavor to

argue that the other five items that were revealed during the

protective sweep were found in violation of the Fourth

Amendment’’ plainly meant that Redman withdrew his challenge to the Task Force’s protective sweep. Although Redman’s counsel did not expressly declare ‘‘I withdraw my

written motion,’’ his language nonetheless manifested that

Redman was abandoning his challenge to the sweep. Indeed,

if Redman meant only to convey his intention to rest on his

written motion without argument, he would have demurred

when the court noted the ‘‘thrust of this challenge had to do

with the sweep TTT [and it] appreciated Redman did not

argue that’’ and the prosecutor said ‘‘I now take it that there

is no challenge.’’2

Furthermore, the district court’s ruling did not, as Redman

contends, include Redman’s written motion.3

 Although the

2 Our conclusion is also bolstered by Redman’s counsel’s insistence at Redman’s subsequent plea that:

it was important to Mr. Redman that this matter be

resolved by a conditional plea, because it is still his contention that, in fact, the items that were found in the back

bedroom, i.e., the [ ]9 millimeter hand gun, the shot gun,

which was alleged to have been found in the dresser, the

money, the crack cocaine that Detective Jackson alleges

were found subsequent to the secure [sic] of a search

warrant were, in fact, found before that search warrant

was secured, and as such should have been suppressed by

way of the motion, or the defense motion for suppression.

9/22/2000 Tr. 17 (Plea Hearing). Significantly, Redman’s counsel

omitted the five items discovered during the protective sweep.

3 For this reason we also reject Redman’s assertion that we may

reach the merits of the protective sweep even if he withdrew his

challenge thereto because the district court ‘‘passed on’’ the objection he asserts here. See Lebron v. Nat’l R.R. Passenger Corp., 513

U.S. 374, 379 (1995) (review of issue not pressed can be undertaken

so long as lower court passed on it). But the trial court did not

pass on it.
11

lower court made factual findings relevant to the sweep,

namely that the Task Force ‘‘had real reason to be concerned

about their safety’’ and that there was ‘‘convincing evidence of

the good faith of their sweep,’’ id. at 198–99, those findings

were simply part of the district court’s dissection of the

various law enforcement officers’ sequential discoveries—the

initial protective sweep, Jackson’s discovery when he accompanied one of the females to the bedroom and the later, and

final, search pursuant to the warrant. The district court

viewed the only remaining aspect of Redman’s motion to be

whether the 9 millimeter and other evidence claimed to have

been seized pursuant to the search warrant were in fact

seized earlier—the court even stated, ‘‘The only question that

has been raised at all in this entire scenario is the testimony

by Ms. Pendarvis about seeing at some point two revolvers on

a table.’’ Id. at 202. That question was relevant only to the

challenge Redman made at the hearing, not the one in his

written motion.4

For the foregoing reasons, we conclude that Redman withdrew his challenge to the protective sweep and under FED. R.

CRIM. P. 12 his challenge is therefore waived. Accordingly,

the appeal is dismissed.

So ordered.

4 Likewise, the prosecutor’s remark that ‘‘I now take it that there

is no challenge,’’ 9/12/2000 Tr. 183, manifested his understanding

that Redman’s objection to the sweep was withdrawn notwithstanding the prosecutor’s unprompted defense of the sweep as legal. His

statement that the five items discovered by the Task Force were

‘‘the product of a lawful protective sweep,’’ id. at 190, was intended

only as part of his argument that both the Task Force and the MPD

were careful to limit the scope of their warrantless searches—a

contention aimed at Redman’s argument made at the hearing.