UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4853

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRIAN PORTIS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Richard L. Williams, Senior 

District Judge. (3:08-cr-00034-RLW-1)

Argued: December 10, 2010 Decided: January 13, 2011

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Charles David Whaley, Richmond, Virginia, for Appellant. 

Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, 

Richmond, Virginia, for Appellee. ON BRIEF: Jennifer M. Newman, 

Richmond, Virginia, for Appellant. Neil H. MacBride, United 

States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

This appeal arises from a district court’s denial of 

defendant Brian Portis’s motion to suppress evidence recovered 

from his home. Although Portis consented to the warrantless 

search of his residence, he argues that his consent was tainted 

by officers’ earlier sweep of the premises, which he claims 

violated his Fourth Amendment rights. For the reasons described

below, we disagree and affirm.

I.

A.

We briefly summarize the relevant facts. On June 6, 2007, 

Officer Edward Aeschlimann and his partner, Officer Corey 

Watson, pulled Portis over for running a stop sign near his 

Richmond, Virginia home. Portis was driving a brown pick-up 

truck with a ladder rig. When running his information, the 

officers learned that Portis’s license had been suspended. 

Portis consented to a search of his vehicle, in which the 

officers found a loaded magazine. Portis explained that

although he had no guns in his car or home, his mother had 

firearms that he sometimes used. He also mentioned that he was 

a former Army infantryman and an “expert marksman.” J.A. 41. 

The traffic stop ended without incident.
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One week later, on the evening of June 13, 2007, Officers 

Aeschlimann and Watson received a dispatch alerting them to a 

shooting in their area “involving an individual in a brown pickup truck that had a ladder rig.” Id. at 44. Officer 

Aeschlimann contacted Detective Bill Brairton, who had phoned in 

the dispatch, and learned that Detective Brairton was 

investigating a homicide, for which Portis was a person of 

interest.

Detective Brairton reported that during his investigation 

he had spoken with a woman named Diana Rameriz, who claimed that 

Portis owned several guns--including at one point an assault 

rifle--and had threatened her son with a firearm. Detective 

Brairton explained that Rameriz had contacted him again, earlier 

on June 13, to report that Portis had just shot at her son. 

Detective Brairton further stated that Rameriz’s son had not 

been hit and would seek out Officers Aeschlimann and Watson when 

they arrived on the scene. Detective Brairton also informed

Officer Aeschlimann that Portis had a picture of himself with an 

assault rifle taped to his front door and could be “heavily 

armed.” Id. at 46.

Equipped with this information, Officers Aeschlimann and 

Watson called for backup and arrived at Portis’s house at 6:52 

p.m., along with another two-person police vehicle. The

officers found Portis standing in the doorway of his home and 
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another, unidentified man standing near the front steps. 

Officer Aeschlimann shouted “Hey Brian.” Id. at 50. Portis 

responded by retreating into his home. At that point, Officer 

Aeschlimann drew his weapon and commanded Portis to exit his 

home. About fifteen seconds later, Portis complied, raising his 

hands to show he was not armed “and walk[ing] down the front 

steps as instructed.” Id. at 51.

The officers approached Portis and the other man, placed 

them both in handcuffs, and patted Portis down to make sure he 

was not armed. Officer Aeschlimann then instructed another 

officer, Officer Gregory Hamilton, to “conduct a sweep of the 

house to make sure no one else was inside.” Id. Officer 

Hamilton swept the house for two minutes, accompanied by an 

officer-in-training. The two did a “visual scan” of the 

surroundings and did not open any closets or go through any 

drawers. Id. at 94. Officer Hamilton reported that he had not 

seen any weapons but had observed a metal spoon, with what he 

thought was cocaine residue, sitting on the floor of a bedroom. 

Officer Watson read Portis his Miranda rights at 7:00 p.m. 

Portis then admitted to Officer Watson that he had a firearm in 

his home. During Officer Watson’s conversation with Portis, 

Rameriz’s son--the alleged shooting victim--arrived at the 

scene, as did Portis’s roommate. After speaking with the 
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alleged victim, the officers concluded that they did not have 

probable cause to arrest Portis.

The officers released Portis and the other individual from 

handcuffs but informed them that they could not leave, as the 

officers were still investigating the cocaine residue and gun in 

Portis’s home. Officer Aeschlimann asked Portis and his 

roommate if the officers could search the home, noting that he 

thought that “the fact there was drug paraphernalia in plain 

view,” and that Portis had admitted he had a firearm would, in 

any event, be sufficient to obtain a search warrant. Id. at 60. 

Portis and his roommate consented to the search. Portis also 

described to the officers where the gun was located and admitted 

that he had drug paraphernalia in his bedroom, which he used to 

smoke marijuana two or three times a week. Officers recovered 

the gun and drug paraphernalia.

B.

On January 24, 2008, Portis was charged with possession of 

a firearm as an unlawful user of controlled substances, in 

violation of 18 U.S.C. § 922(g)(3), and unlawful drug 

possession, in violation of 21 U.S.C. § 844. Portis moved to 

suppress the evidence recovered from his home, arguing that his 

consent to the search was tainted by the officers’ allegedly 

unlawful initial entry. Officers Aeschlimann, Hamilton, and 

Watson testified at an April 2008 suppression hearing.
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After hearing from both sides, the district court denied 

the motion to suppress. Portis was found guilty on both counts 

in September 2009.* This appeal followed.

II.

On appeal, Portis again challenges the officers’ initial 

sweep of his home, urging that the search violated his Fourth 

Amendment rights. We disagree. In light of the facts presented 

at the suppression hearing, the brief visual scan of Portis’s 

residence was justified as an appropriately limited protective 

sweep.

When reviewing an appeal from a district court’s denial of 

a motion to suppress, “we review the court’s factual findings 

for clear error and its legal determinations de novo.” United 

States v. Wardrick, 350 F.3d 446, 451 (4th Cir. 2003). A 

protective sweep of a defendant’s home is justified if there are 

“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 . . . scene.” 

 * We vacated Portis’s initial conviction, citing confusion 

surrounding what he believed to be a conditional guilty plea. 

See United States v. Portis, 332 F. App’x 870, 872 (4th Cir.

2009). We did not reach the merits of his present claim, and he 

has since been found guilty after a bench trial.
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Maryland v. Buie, 494 U.S. 325, 334 (1990); see also United 

States v. Baker, 577 F.2d 1147, 1152 (4th Cir. 1978) (finding 

that a protective sweep of a defendant’s home was justified when 

the defendant was arrested in front of it).

The vast majority of circuit courts to have considered the 

issue have upheld protective sweeps conducted in non-arrest 

situations in which officers are lawfully on a defendant’s 

property. See, e.g., United States v. Miller, 430 F.3d 93, 98 

(2d Cir. 2005) (finding “that a law enforcement officer present

in a home under lawful process . . . may conduct a protective 

sweep when the officer possesses” articulable facts as outlined 

in Buie); United States v. Gould, 364 F.3d 578, 584 (5th Cir. 

2004) (en banc) (“[A]rrest is not always, or per se, an 

indispensable element of an in-home protective sweep.”); see 

also State v. Davila, 999 A.2d 1116, 1127-29 (N.J. 2010) 

(collecting cases). Although we have not yet spoken directly to 

this point, on the undisputed facts, we are persuaded that the 

officers’ brief walk-through of Portis’s home was justified.

As detailed at the suppression hearing, the officers had 

reason to believe that Portis had firearms in his house and had 

just shot at someone. They were also aware that Portis was both 

a person of interest in a homicide investigation and an armytrained “expert marksman.” The officers had seen at least one 

other individual on the premises and did not know what Portis 
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had done during the period in which he retreated inside his home 

and disappeared from view. They had reason to fear that Portis 

may have been conferring with an armed confederate or hiding a 

gun to which he would have had easy access to shoot at the 

departing officers, in the event that they did not arrest him.

These specific facts were sufficient to justify a 

reasonable officer’s concern that Portis’s home “harbor[ed] 

other persons who [we]re dangerous and who could unexpectedly 

[have] launch[ed] an attack.” United States v. Green, 599 F.3d 

360, 376 (4th Cir. 2010) (quoting Buie, 494 U.S. at 333); see 

also Mora v. City of Gaithersburg, 519 F.3d 216, 226 (4th Cir. 

2008) (upholding a protective sweep when officers “did not and 

could not fully know the dimensions of the threat they faced”). 

Portis’s assertion to the contrary lacks merit.

Significantly, the officers did not conduct an intrusive 

investigation during their initial entry or linger in Portis’s 

home longer than necessary. They instead confined themselves to 

a two-minute sweep of places in which a dangerous individual 

might have been hiding. On these facts, their limited search 

was justified and did not taint Portis’s subsequent consent. 

III.

We have reviewed Portis’s remaining arguments and find them 

to be without merit. For the foregoing reasons we affirm the 
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district court’s denial of Portis’s motion to suppress the 

disputed evidence.

AFFIRMED