United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4379

TREVIS LATORIS BROWN, a/k/a

Raphael M. Johnson,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CR-96-78)

Submitted: February 10, 1998

Decided: February 25, 1998

Before WIDENER and HAMILTON, Circuit Judges,

and HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Paul Gregorio, MORRISSEY, HERSHNER & JACOBS, Rich-

mond, Virginia, for Appellant. Helen F. Fahey, United States Attor-

ney, Stephen W. Miller, Assistant United States Attorney, Richmond,

Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Trevis Latoris Brown was indicted for possession with

intent to distribute cocaine and cocaine base, in violation of 21 U.S.C.

§ 841 (1994), possession of a firearm by a convicted felon, in viola-

tion of 21 U.S.C. § 922(g)(1) (1994), and maintaining a place for the

purpose of manufacturing, distributing, and using controlled sub-

stances, in violation of 21 U.S.C. § 856 (1994). The district court

denied Brown's motion to suppress evidence discovered during a sub-

sequent search of Brown's apartment, executed pursuant to a warrant.

Brown entered a guilty plea under Fed. R. Crim. P. 11(a)(2), reserving

his right to appeal the denial of his suppression motion. We affirm.

I.

Officers Richard Crowder and Frank Baehr responded to a radio

dispatch that someone with a gun was involved in an abduction in an

apartment near their location. The officers knocked on the door of the

apartment and identified themselves. After some time, Brown opened

the door and the officers immediately smelled burning marijuana and

saw marijuana smoke coming from inside the apartment. As soon as

the door was open, two juvenile girls ran out of the apartment past the

officers screaming for the officers to "take us away, get us away from

him."

When Officer Crowder attempted to speak to Brown, Brown began

backing up into the apartment, and Officer Crowder walked in with

him. Brown backed up into the common area of the apartment until

he was standing next to a sofa, which acted as a partition between the

hallway and the living room. On the coffee table in front of the sofa

the officers could see a handgun. Once Officer Crowder saw the

handgun, he bent Brown over the back of the sofa and handcuffed

him. After backup officers arrived, Officer Baehr went after the two

girls.

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Officer Crowder then did a routine pat down of Brown to check for

weapons, and pulled out a large roll of money, which Brown said

amounted to about $10,000. Officer Crowder also noticed a large

number of Philly Blunt cigar boxes in the living room. Officer Crow-

der testified that Philly Blunt cigars were often used by marijuana

users, who would empty the tobacco out of the cigar and fill it with

marijuana, and use the boxes themselves to store marijuana.

While Officer Crowder and one of the backup officers conducted

a protective sweep, the other backup officer decided to place Brown

on the sofa while they waited. Before Brown was placed on the sofa,

the officer looked under the sofa cushions and around the sofa to

make sure there were no firearms or other weapons that Brown could

place his hands on. When the officer lifted up the cushions, he found

a Philly Blunt cigar, which appeared to contain marijuana, and a small

plastic bag. Both items were later tested for and identified as contain-

ing marijuana.

At this point Officer Baehr came back with the information from

the two girls. They had consumed alcohol, were underage, and were

out past curfew. Brown admitted that he had served the girls beer.

Brown was then formally placed under arrest for contributing to the

delinquency of a minor and for possession of marijuana.

Brown refused to give his consent to a full scale search of the

apartment, and thus the officers obtained a warrant to search for evi-

dence of the use and distribution of marijuana. Once a warrant was

obtained, they recovered evidence of the possession with intent to dis-

tribute cocaine and cocaine base, which was the basis for the drug

charges in the indictment.

II.

On appeal, Brown contends that the evidence of cocaine possession

and distribution should have been suppressed because the warrant was

obtained as a result of the illegal search of the sofa. Initially, this

court reviews the district court's factual findings on a denial of a

motion to suppress for clear error, and its legal conclusions de novo.

See United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).

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As a safety measure, officers may conduct a protective search of

an area in connection with an arrest to search for weapons within the

grab area of an individual when the officers have a reasonable belief

that the individual is potentially dangerous. See Michigan v. Long,

463 U.S. 1032, 1048-49, 1052 n.16 (1983); Terry v. Ohio, 392 U.S.

1, 27 (1968); United States v. Poms, 484 F.2d 919, 920-21 (4th Cir.

1973) (holding that search of suspect's shoulder bag was justified as

protective search under Terry). The fact that a suspect is handcuffed

and being observed may restrict the area within his reach, but it does

not negate all risk that he may obtain a weapon and thus pose a dan-

ger. See United States v. Horne, 4 F.3d 579, 586 (8th Cir. 1993);

United States v. Silva, 745 F.2d 840, 847 (4th Cir. 1984).

Here, although Brown was handcuffed, he still could have reached

under the sofa cushions to obtain a weapon. See United States v.

Hernandez, 941 F.2d 133, 137 (2d Cir. 1991); United States v.

Mason, 523 F.2d 1122, 1126 (D.C. Cir. 1975). The officer was per-

mitted to check the immediate area as a safety precaution. See

Hernandez, 941 F.2d at 137 (citing Terry, 392 U.S. at 24). Accord-

ingly, the search of the sofa was a permissible protective search, and

the district court did not err in denying Brown's motion to suppress.

See Long, 463 U.S. at 1048-49; Terry, 392 U.S. at 27.

We affirm Brown's conviction. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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