UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5422

THOMAS RODERICK JACKSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, District Judge.

(CR-94-494-A)

Argued: June 7, 1996

Decided: November 1, 1996

Before RUSSELL, WIDENER, and MICHAEL, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

ARGUED: Christopher Allen Griffiths, ROBERTS & WOOD,

Riverdale, Maryland, for Appellant. Marcus John Davis, Assistant

United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Douglas J. Wood, ROBERTS & WOOD, Riverdale, Maryland, for Appellant. Helen F. Fahey, United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

A grand jury in the Eastern District of Virginia returned a four

count indictment against Thomas Roderick Jackson on November 23,

1994. Count 1 charged possession with intent to distribute cocaine in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii)(II). Counts 2 and

3 charged possession of a firearm and ammunition by a convicted

felon in violation of 18 U.S.C. § 922(g)(1). Count 4 charged use of

a firearm in relation to a drug trafficking crime in violation of 18

U.S.C. § 924(c)(1).

On December 23, 1994 Jackson moved to suppress evidence seized

from his apartment pursuant to a search warrant. After a hearing, the

district court denied Jackson's motion on January 20, 1995. At trial

on February 7, 1995, Jackson moved for judgment of acquittal on all

counts. The court denied the motion with respect to Counts 1 and 4

and took the motion under advisement with respect to Counts 2 and

3. After the jury found him guilty on all four counts, Jackson renewed

his motion for judgment of acquittal. The court granted his motion

with respect to Counts 2 and 3, which action is not the subject of this

appeal.

On May 19, 1995 the district court sentenced Jackson to 33

months' imprisonment and three years of supervised release on Count

1 and 60 months' imprisonment on Count 4, to be served consecutively. On appeal, Jackson challenges the protective sweep of his

apartment as an unlawful warrantless search. Jackson's first argument

is that there was no justification for a protective sweep. In the alternative, he argues that even if the sweep were justified, the officers

exceeded the permissible scope of the sweep by searching in the bathroom vanity and under the bedroom mattress. We affirm the conviction on Count 1, but vacate the conviction on Count 4 on a ground

which only became available following trial.

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I.

Our review of a district court's denial of a motion to suppress is

governed by two standards. We review the factual findings underlying

the district court's legal conclusions under the clearly erroneous standard, but we review the district court's legal conclusions de novo.

United States v. Rusher, 966 F.2d 868, 873 (4th Cir.), cert. denied,

506 U.S. 926 (1992).

Jackson was wanted on an outstanding arrest warrant in Prince

George's County, Maryland for attempted murder by stabbing. Following an anonymous tip on August 16, 1994, the FBI fugitive squad

confirmed the existence of the warrant with the Prince George's

County Sheriff's Department and ran a computer check that confirmed that Jackson had been convicted of a violent crime in the past

involving a firearm and was considered armed and dangerous. Five

FBI special agents went to the address given by the anonymous caller.

Before going to Jackson's apartment, the agents confirmed with management that Jackson was indeed the tenant of that apartment.

Special Agent Patrick Gibbons testified that at Jackson's apartment

door, the agents could hear a male voice and other garbled voices.

Agent Gibbons further testified that they could not know how many

people were in the apartment. After the agents knocked on the door,

Katrina Graham opened the door with the chain lock still attached and

the agents identified themselves. As Miss Graham was attempting to

close the door, the agents broke through the chain lock and apprehended Jackson.*

While Agents Gibbons and Abbott took care of Jackson, Agents

Dixon-Martinez and Regini were with Miss Graham in the bedroom.

Prior to placing Miss Graham on the bed, the agents frisked the bed

for weapons and found a bag with a white powdery substance in it.

Agent Regini testified that they lifted the mattress rather than feeling

with their hands because it is common to find needles as well as

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*The district court is correct when it states that Miss Graham's intent

in whether she was closing the door to remove the chain lock as she testified is irrelevant. Whatever her intent, the agents found it necessary to

prevent her from closing the door.

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weapons under mattresses. Agent Regini reported the baggie to Special Agent Kroboth, who was the supervisory agent.

Agent Kroboth did a protective sweep of the apartment to make

sure there were no other individuals present. In the bathroom, Kroboth checked both behind the shower curtain and in the bathroom

vanity. The vanity was three feet tall by three feet wide and three feet

deep. It was Kroboth's experience that people have been found in

vanities that size and smaller. Inside the vanity, he found a triple

beam scale.

The agents called the Fairfax County Police Department. The

police tested the residue in the plastic baggie and it tested positive for

cocaine. Police Investigator Ronquillo Dean then obtained a search

warrant based on the cocaine residue and the triple beam scale. Pursuant to the search warrant, we are told, without dispute, the police

seized a quantity of cocaine powder and cocaine base, cutting and

packaging materials, three scales, a loaded TEC-9 semi-automatic pistol, a .38 Colt revolver, ammunition, and a ballistic vest.

The district court found the protective sweep for additional persons

to be reasonable given that the agents knew that Jackson was wanted

for attempted murder and that he was considered armed and dangerous. The court found no evidence that the agents intended to search

the apartment or to use the sweep as a pretext for finding contraband.

The court also found the search of the bed to be entirely appropriate

because the agents had every reason to believe that Miss Graham

might be in league with Jackson and might have a weapon under the

mattress. We are of opinion that the district court's conclusions are

proper.

The Supreme Court has defined a protective sweep as"a quick and

limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie, 494

U.S. 325, 327 (1990). The Court also stated that a protective sweep

is "confined to a cursory visual inspection of those places in which

a person may be hiding." Buie, 494 at 327. "[T]here must be articulable facts which, taken together with the rational inferences from

those facts, would warrant a reasonably prudent officer in believing

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that the area to be swept harbors an individual posing a danger to

those on the arrest scene." Buie, 494 U.S. at 334.

The officers in this case quickly swept the apartment for individuals posing danger to the officers. The officers did not search through

drawers or other areas too small for an individual to hide in. The officers were not certain how many individuals were in the apartment

because they heard garbled voices at the door, but they were aware

of at least one person other than the defendant in the apartment. The

officer who checked the vanity testified that, in his experience, a person has hidden in a bathroom vanity of that size. The vanity was three

feet tall, three feet wide, and three feet deep. An adult could fit easily

into a space that size. We are of opinion that this sweep satisfies the

Buie definition of a protective sweep.

We now turn to the search of the mattress. The law clearly allows

for the "search of the arrestee's person and the area `within his immediate control'--construing that phrase to mean the area from within

which he might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752, 763 (1969). In our case,

the police frisked the space under the mattress for weapons prior to

placing an individual, not the arrestee, on the bed. For the reasons

stated below, we are of opinion that the search was reasonable.

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court upheld the

frisk of a person for weapons based upon the officer's observation of

that individual on the street. Guided by the Fourth Amendment's general prohibition of unreasonable searches and seizures, the Court

determined the reasonableness of the officer's actions by balancing

"the need to search [or seize] against the invasion which the search

[or seizure] entails." Terry v. Ohio, 392 U.S. 1, 21 (bracketed insertions in original) (quoting Camara v. Municipal Court, 387 U.S. 523,

537 (1967)). The Court required "specific and articulable facts which,

taken together with rational inferences from those facts, reasonably

warrant that intrusion." Terry, 392 U.S. at 21. "The sole justification

of the search in the present situation is the protection of the police

officer and others nearby, and it must therefore be confined in scope

to an intrusion reasonably designed to discover guns, knives, clubs,

or other hidden instruments for the assault of the police officer."

Terry, 392 U.S. at 29.

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In Michigan v. Long, 463 U.S. 1032 (1983), the Court relied on the

principles of Terry and Chimel to uphold the search of the passenger

compartment of a car for weapons during a traffic stop. The Court

again required "`specific and articulable facts which, taken together

with the rational inferences from those facts, reasonably warrant' the

officer in believing that the suspect is dangerous and the suspect may

gain immediate control of weapons." Long, 463 U.S. at 1049 (quoting

Terry, 392 U.S. at 21). The Court restated that"[a] gun on a table or

in a drawer in front of one who is arrested can be as dangerous to the

arresting officer as one concealed in the clothing of the person

arrested." Long, 463 U.S. at 1048 (alteration in original) (quoting

Chimel, 395 U.S. at 763). Addressing the dissent's concern that the

Court was broadening Terry searches, the Court specifically stated

that the area search approved of was "limited to a search for weapons

in circumstances where the officers have a reasonable belief that the

suspect is potentially dangerous to them." Long, 463 U.S. at 1052-53

n.16.

Maryland v. Buie, 494 U.S. 325 (1990), presented the Court with

the situation of a protective sweep of a suspect's home during the execution of an arrest warrant. Although a protective sweep is limited to

a search for individuals, not weapons, Buie highlights the Court's

overriding concern for the safety of police officers. In Buie, the Court

recognized that "unlike an encounter on the street or along a highway,

an in-home arrest puts the officer at the disadvantage of being on his

adversary's `turf.' An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings." Buie, 494 U.S. at 333.

The officers in this case knew that the defendant was wanted for

attempted murder by stabbing, that he had been convicted of a violent

crime with a firearm in the past, and that he was to be considered

armed and dangerous. It is reasonable for the officers to think the

defendant might have one or more weapons hidden in his bed or

under his mattress. Likewise, it is reasonable for the officers to think

that Miss Graham might be aware of the existence of any such weapons. See United States v. Hernandez, 941 F.2d 133, 135-38 (2d Cir.

1991) (upholding search of mattress prior to placing handcuffed

female, not the arrestee, on the bed). To protect themselves, the officers checked the bed for weapons prior to placing Miss Graham on

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the bed. Rather than run their hands between the mattress and box

spring, the officers lifted the mattress from the box spring to avoid

cutting themselves on any needles or sharp objects that might be

there. This action was reasonable.

II.

Jackson also argues on appeal that the evidence was insufficient to

sustain the conviction under Count 4, use of a firearm in relation to

a drug trafficking crime. The government concedes that Jackson's

conviction on Count 4 should be set aside in light of Bailey v. United

States, 64 U.S.L.W. 4039 (1995). Thus, we vacate Jackson's conviction on Count 4.

Although we affirm Jackson's conviction on Count 1, because he

was sentenced on account of Counts 1 and 4, we vacate the sentence

in Count 1 and remand for resentencing. The government claims that

enhancement under Sentencing Guidelines 2D1.1 will be applicable

on resentencing. We express no opinion on that question and are confident the district court will give it consideration on remand.

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

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