IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50067

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

BRIAN MICHAEL DAVID ROBERTS,

Defendant - Appellant

Consolidated with

No. 09-50186

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MAJOR HARRISON BOOTH,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before HIGGINBOTHAM, GARZA and PRADO, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

United States Court of Appeals

Fifth Circuit

F I L E D

July 13, 2010

Lyle W. Cayce

Clerk
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1 Booth pleaded guilty to one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). Roberts pleaded guilty to one count of possession of a firearm

by a user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). The charges were

based on a 9mm handgun and a 12-gauge shotgun seized from the apartment where the men

lived.

2

This is a consolidated appeal by co-defendants, Brian Michael David

Roberts (“Roberts”) and Major Harrison Booth (“Booth”). Both men entered

conditional guilty pleas to firearms violations,1 and now appeal the denial of

their motion to suppress the firearms. For the reasons set forth below, we

AFFIRM.

I

Officers Darren Clements and Kent Spencer received a tip that some ofthe

residents of an apartment building might be in possession of stolen items and

guns. Officers Clements and Spencer went to the apartment to investigate.

They spoke with the occupants of an apartment who told them that a white male

known as “B” had recently attempted to sell them a laptop computer, which they

believed was stolen, and that “B” was carrying a gun on his hip during the

interaction. The tipsters told the officers that “B” lived in apartment 2201,

pointed out a small pickup truck that “B” drove, and indicated that a black male

known as “Major” also lived in the apartment with “B.” The officers were also

told that other people regularly stayed in the apartment with “B” and “Major.”

A license plate check on the truck revealed that it was registered to Brian

Roberts, who had several outstanding arrest warrants for traffic offenses. Based

on this information, the officers surmised that Brian Roberts was the person

identified as “B.”

The officers called for additional backup because they did not know how

many people were in the apartment. While waiting, they observed a black man

enter and exit the apartment. They did not see a white male.
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Once a third officer arrived, the officers approached the apartment to

arrest Roberts on the outstanding traffic warrants. Officers Clements and

Spencer knocked on the door and a white man matching Roberts’s description

answered. Officer Spencer identified himself and stated that they were looking

for Brian Roberts so they could execute arrest warrants. The man at the door

said that he was Roberts. The officers asked him for identification to verify his

identity before making the arrest. At that point, the officers were still at the

threshold of Roberts’s apartment, where they could perceive other people in the

darkened room behind Roberts.

Roberts turned back into the darkened apartment to retrieve his wallet

from an entertainment center. At that point, the officers stepped into the

darkened apartment, and Officer Clements shined a flashlight on Roberts to

maintain supervision over the suspect.

When Officer Clements pointed the light at Roberts, Clements could see

a pistol magazine and several loose rounds of ammunition in plain view on the

entertainment center. The officers could also see other people in the apartment.

Seeing the ammunition within easy reach, the officers immediately ordered

Roberts to stop walking toward the entertainment center and return to the door.

Officer Spencer handcuffed Roberts. The other occupants of the apartment were

moved away from the weapons and secured against one wall. The officers later

retrieved the magazine and a gun that Roberts told them was under the couch.

Concerned that there might be other people and weapons in the

apartment,the officers conducted a protective sweep. Officer Clements knocked

at a locked bedroom door. A black male, later identified as Booth, opened the

door. Officer Clements then entered the room and saw a shotgun leaning inside

an open closet. He secured the gun and removed it from the apartment. Booth

was taken into custody because he had an outstanding Georgia arrest warrant.
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Roberts and Booth were indicted for federal weapons offenses. They

moved to suppress the firearms seized from the apartment, claiming that the

police lacked consent to enter the apartment and had no basis to perform a

protective sweep. The district court denied the motion to suppress. Both men

pleaded guilty conditionally, reserving their right to appeal the district court’s

denial of their motions to suppress.

II

The standard of review for a “motion to suppress based on live testimony

at a suppression hearing is to accept the trial court’s factual findings unless

clearly erroneous or influenced by an incorrect view of the law.” United States

v. Outlaw, 319 F.3d 701, 704 (5th Cir. 2003). Evidence is considered in “the light

most favorable to the prevailing party.” United States v. Shelton, 337 F.3d 529,

532 (5th Cir. 2003). The ultimate conclusion about the constitutionality of the

law enforcement conduct is reviewed de novo. Id. This court “may affirm the

district court’s ruling on a motion to suppress based on any rationale supported

by the record,” but “where a police officer acts without a warrant, the

government bears the burden of proving that the search was valid.” United

States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005) (internal citations omitted).

Roberts and Booth contend that their Fourth Amendment rights were

violated when the police executed a warrantless search of the apartment. They

argue that the officers conducting the search (1) had no justification for entering

the apartment; (2) had no justification for conducting a protective sweep of the

apartment; and (3) did not satisfy the elements of the “plain view” doctrine that

would permit them to seize the weapons. Accordingly, they argue that the

weapons seized during the search should have been suppressed.

A
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2 Appellants also argue that the arrest warrants for traffic violations could not justify

the officers’ entry into the apartment. Although we have long recognized that “[p]olice armed

with an arrest warrant and probable cause to believe that a suspect is at his home have the

right to enter the premises to arrest him,” we have not explicitly addressed whether the type

of warrant matters. See, e.g., United States v. Virgil, 444 F.3d 447, 451 (5th Cir. 2006) (citing

Payton v. New York, 445 U.S. 573, 602–03 (1980)); United States v. James, 528 F.2d 999, 1017

(5th Cir. 1976). Appellants contend that only a felony (as opposed to misdemeanor) warrant

is sufficient to privilege an officer’s entry. We need not answer that question today, because,

as discussed herein, the step into the apartment was justified to maintain control of Roberts

during the arrest.

3 There is nothing in the record to suggest that the request was unreasonable or would

create exigent circumstances. Indeed, the officers had no way of knowing that the request

would result in Roberts walking back into the darkened apartment. No doubt if they gave any

thought to the matter at all, they reasonably would have expected that Roberts would produce

identification from somewhere on his person.

5

Appellants argue that because Roberts admitted his identity in response

to Officer Spencer’s question, the limited authority to enter a residence to

effectuate an arrest warrant was not implicated.2 Accordingly, we first consider

whether the officers’ entry into the apartment was valid.

The officers were reasonable in conducting a “knock and talk,” which is an

accepted investigatory tactic. See, e.g., UnitedStates v. Gomez-Moreno, 479F.3d

350, 356 (5th Cir. 2007). They approached the door, asked for Roberts so that

they could execute the arrest warrants, and then requested that the person

purporting to be Roberts provide identification so that they could make the

arrest. The officers testified that departmental policy requires them to verify a

suspect’s identity before making an arrest.3

The Supreme Court has rejected the notion that exigent circumstances are

required to justify entering an area in which a person has a protected Fourth

Amendment privacy right where the entry is effectuated to maintain control over

someone being placed under arrest. See Washington v. Chrisman, 455 U.S. 1,

7 (1982). In Chrisman, a Washington State University police officer spotted a
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4 Although the Supreme Court refers to the student as having already been placed

under arrestwhenthe officer accompanied him back to his dorm room to retrieve identification,

id. at 6, we do not think that this characterization makes Chrisman any less applicable.

Whether considering the suspectto be under arrest or in the process of being arrested, the facts

are on all fours. In Chrisman, the officer suspected illegal possession of alcohol and requested

identification to confirm that the student was, in fact, underage. Id. at 4. Likewise, the

officers here had valid, outstanding arrest warrants for Roberts and requested identification

to verify that the arrest was proper. In both cases, the officers moved into an area in which

the suspect had a protectedFourth Amendment privacy right in order to maintain control over

the suspect.

6

student, who appeared to be underage, carrying a half-gallon bottle of gin, and

requested identification from him. Id. at 3. The student said his identification

was in his dorm room and requested that he be allowed to retrieve it. Id. The

officer accompanied the student to the dorm. While there, the officer identified

drug paraphernalia in plain view. Id. at 4. He seized the contraband and

arrested the student and his roommate. Id. The Supreme Court reversed the

Washington Supreme Court, which had found that the officer was not entitled

to accompany the student from the public hallway into the dorm room absent

exigent circumstances. Id. at 6.

The Supreme Court found that exigent circumstances were not required

to enter the dorm room because the arresting officers had authority to maintain

custody over the arrested person.4Id. (citing Pennsylvania v. Mimms, 434 U.S.

106, 109–10 (1977). The Supreme Court held that “it is not ‘unreasonable’ under

the Fourth Amendment for a police officer, as a matter of routine,to monitor the

movements of an arrested person” because the need to “ensure his own

safety))as well as the integrity of the arrest))is compelling.” Id. at 7.

The facts here are even stronger than in Chrisman. The Supreme Court

found that the entry to maintain control was reasonable even in the “absence of

an affirmative indication that the . . . person might have a weapon available or

might attempt to escape.” Id. at 6. (emphasis added). Here, the officers acted
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well within their authority in stepping into Roberts’s apartment. Not only did

they need to maintain control over their suspect, but they had affirmative

information indicating the presence of weapons based on information provided

by the other building residents.

Officer Spencer reasonably requested identification to verify that the

suspect was who he said he was. Roberts moved into a darkened room to

retrieve his identification. Based on the officers’ knowledge that Roberts had

been seen with a gun and their observation—before stepping into the

apartment—that atleastthree other individuals occupied the dimly-lit room, the

officers’ were justified in taking a step into the apartment in order to

continuously observe Roberts. “There is no way for an officer to predict reliably

how a particular subject will react to arrest or the degree of the potential

danger.” Chrisman, 455 U.S. at 7. Under this set of circumstances, concern for

officer safety and maintaining control over the suspect justified taking a step

into Roberts’s apartment. “Our purpose is not to examine each act in isolation

and inquire whether the officers could have acted differently.” United States v.

Blount, 123 F.3d 831, 838 (5th Cir. 1997). We are not prepared to “second-guess

the judgment of experienced law enforcement officers concerning the risks” of

this particular situation. Id. (internal quotation marks and citation omitted).

B

Roberts and Booth raise a second issue: whether the police were justified

in conducting a protective sweep of Roberts’s apartment. “‘[A] ‘protective sweep’

is a quick and limited search of premises, incident to an arrest and conducted to

protect the safety of police officers or others.’” United States v. Gould, 364 F.3d

578, 581 (5th Cir. 2004) (en banc) (quoting Buie, 494 U.S. at 327). The sweep

may occur after the suspect has been arrested. Buie, 494 U.S. at 334. To be
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constitutionally valid, (1) “the police must not have entered (or remained in) the

home illegally and their presence within it must be for a legitimate law

enforcement purpose;” (2) “the protective sweep must be supported by a

reasonable, articulable suspicion . . . that the area to be swept harbors an

individual posing a danger to those on the scene;” (3) “the legitimate protective

sweep may not be a full search but may be no more than a cursory inspection of

those spaces where a person may be found;” and (4) the protective sweep “may

last . . . no longer than is necessary to dispel the reasonable suspicion of danger,

and . . . no longer than the police are justified in remaining on the premises.”

Gould, 364 F.3d at 587 (internal citations omitted).

The district court found that the protective sweep of the apartment was

valid. Appellants argue that the sweep was unjustified because “[h]ad the police

arrested Roberts when he acknowledged his identity, he would not have been in

a position to harm anyone,” and “[n]o reasonable person would have thought that

Roberts could have caused any harm once in custody of the two armed officers

who confronted him at his home.” Appellants also argue that “there was no

testimony that Roberts was violent;” Roberts “never resisted arrest or tried to

flee and was generally cooperative with the officer;” and, that after their entry,

the officers “lacked any reasonable belief or suspicion that the apartment might

be harboring someone who might cause them harm.”

Notwithstanding Appellants’ arguments to the contrary, the requirements

for a valid protective sweep were met. The officers entered the apartment

pursuant to a “legitimate law enforcement purpose.” Id. The officers were

aware that Roberts had been seen with a firearm; they observed additional

occupants in the darkened living room, a person other than Roberts exiting and

reentering the apartment, and ammunition clips in plain view; and Roberts’s

told them that a pistol was under the couch. The officers “possesse[d] a
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reasonable belief based on specific and articulable facts which, taken together

with the rational inferences from those facts, reasonably warrant[ed] the

officer[s] in believing that the area swept [may have] harbored an individual

posing a danger to the officer or others.” Buie, 494 U.S. 327–28 (internal

quotations omitted). The circumstances on which the officers could reasonably

rely in determining that a protective sweep was necessary were not limited to

the threat posed by Roberts, but the potential threat of any of the other

occupants of apartment where weapons were clearly present. Moreover,

Appellants do not argue that the sweep was anything more than “a cursory

inspection of only those spaces where a person may hide.” UnitedStates v. Mata,

517 F.3d 279, 286 (5th Cir. 2008). Nor do they argue that the sweep continued

longer than necessary. Id. Based on these facts, the protective sweep was valid.

C

Finally, Appellants challenge the seizure of the firearms. After

establishing that the officers validly entered the apartment, the district court

held that:

(1) the items seized were either found through admission of the

defendant (telling detectives there was a gun under the couch) or

because they were sitting in plain view during the sweep, (2) that

the incriminating nature of the guns and ammunition were

immediately apparent, and (3) that the police had a lawful right of

access to the guns.

While the Fourth Amendment generally prohibits warrantless seizures,

see Buie, 494 U.S. at 331, the “plain view” exception allows police to seize items

where: (1) the police lawfully entered the area where the item was located; (2)

the item was in plain view; (3) the incriminating nature of the item was

“immediately apparent;” and (4) the police had a lawful right of access to the

item. Horton v. California, 496 U.S. 128, 136–37 (1990). “The incriminating
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5 We note that the district court conducted its Fourth Amendment analysis of the

weapons, including the gun retrieved from under the couch, under the rubric of the plain-view

doctrine. It is clear that the district court was attempting to fit the search and seizure of the

weapons at issue into existing legal doctrine. Nonetheless, it was error to find the gun under

the couch—which was not in plain view and was retrieved based on Roberts’s admission that

it was located there—to be an item in plain view. However, Roberts and Booth do not

challenge the plain view prong of the district court’s analysis, and thus have waived the error.

Accordingly, we consider only the argumentthatthe incriminating nature ofthe weapons were

not immediately apparent.

10

nature of an item is ‘immediately apparent’ if the officers have ‘probable cause’

to believe that the item is either evidence of a crime or contraband. Probable

cause does not require certainty.” United States v. Waldrop, 404 F.3d 365, 369

(5th Cir. 2005) (internal quotation marks and citation omitted). “If . . . the police

lack probable cause to believe that an object in plain view is contraband without

conducting some further search of the object,” then its incriminating nature is

not immediately apparent and “the plain-view doctrine cannot justify its

seizure.” Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (quotations omitted).

On appeal, Appellants challenge the third prong ofthe plain-view doctrine,

arguing that there was no reason to believe that the firearms were illegal or

otherwise incriminating.5 They contend that “there is no evidence in the record

thatthe police knew the criminal history of anyone in the home,thus there could

be no immediate apparent illegal possession of the seized evidence,” and that

“the facts do not support the idea that the mere presence of a gun clip and

ammunition on the entertainment center was illegal.” Because Appellants did

not argue at the suppression hearing that the incriminating nature of the

firearms was notimmediately apparent, our review is for plain error. See United

States v. De Jesus-Batres, 410 F.3d 154, 159 (5th Cir. 2005) (noting that plain

error review applies to arguments that a defendantfails to raise at a suppression

hearing).
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It does not appear that the gun was immediately retrieved and removed from the

house. Rather, the officers conducted a protective sweep and located Booth and another

individual in a bedroom with a shotgun in plain view. Although one might question whether

the better course of action would have been to immediately retrieve and secure the gun under

the couch, the officers’ decision to first move the occupants of the living room away from the

couch and conduct a protective sweep ofthe remainder ofthe apartment was reasonable given

their concern that other persons and weapons might be present.

11

The weapons were illegal because they were possessed by persons who had

no lawful right to possess them. However, the officers who seized the weapons

did not know at the time of the seizure the criminal histories of Roberts and

Booth that would make their possession of the weapons illegal. Thus, the

incriminating nature of the weapons was not apparent at the momentthey were

seized and removed from the apartment.

Nonetheless, we think the police were justified in temporarily seizing the

weapons under these circumstances. See United States v. Rodriguez, 601 F.3d

402, 408 (5th Cir. 2010). The officers could see four individuals in the darkened

room of the apartment. When Roberts walked back into the darkened room,

Officer Clements saw a pistol magazine and loose ammunition rounds on the

entertainment center where Roberts was headed. At that point, the officers

asked Roberts to step away from the entertainment center, and they secured the

other individuals against a wall, away from the ammunition. Roberts then told

the officers that there was a gun under the couch.6 Though the officers moved

all of the individuals against a wall, the danger posed to the officers by the

firearms did not fully dissipate. The individuals were not handcuffed or

otherwise incapacitated and in the event of a scuffle could have accessed the

unsecured weapons. “Common sense dictates that a firearm that could be

accessed by someone at the scene and used against officers or others should be

unloaded, and at least temporarily, kept in a safe place.” Id. (citations omitted).

The officers acted reasonably—the touchstone requirement of the Fourth
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Amendment—in seizing the weapons for the safety of themselves and the

apartment’s occupants. Accordingly, such a temporary seizure does not violate

the Fourth Amendment. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32,

37 (2000) (“The Fourth Amendment requires that searches and seizures be

reasonable.”); Ohio v. Robinette, 519 U.S. 33, 39 (1996) (reiterating that “the

touchstone of the Fourth Amendment is reasonableness”). The officers were

entitled to maintain control over the weapons while they completed their

investigation ofthe individuals inside the apartment. During that investigation,

the officers discovered that Roberts was an unlawful user of a controlled

substance and that Booth had a prior felony conviction, and the illegality of the

firearms became apparent such that permanent seizure was warranted.

III

For the foregoing reasons, we AFFIRM Roberts’s conviction for violation

of 18 U.S.C. § 922(g)(3) and Booth’s conviction for violation of 18 U.S.C.

§ 922(g)(1).