COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0183-00-2 JUDGE RICHARD S. BRAY
JUNE 29, 2000
ADIB AMEER MARZUQ
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Donald A. Denton for appellee.
Indicted for possession of cocaine with intent to distribute,
Adib Ameer Marzuq (defendant) moved the trial court to suppress
inculpatory evidence discovered by police during a "sweep search"
of his residence. Following a hearing on defendant's motion, the
court concluded the circumstances did not give rise to safety
concerns sufficient to justify the search and suppressed the
related evidence. The Commonwealth appeals pursuant to Code
§ 19.2-398, arguing that the offending drugs, together with other
evidence, were properly seized during a "protective sweep." We
agree and reverse the trial court.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
"It is well established that on appeal the burden is on the
appellant[, the Commonwealth in this instance,] to show,
considering the evidence in a light most favorable to [defendant],
that the [granting] of a motion to suppress constitutes reversible
error." Commonwealth v. Tart, 17 Va. App. 384, 390-91, 437 S.E.2d
219, 223 (1993). "Questions of reasonable suspicion and probable
cause to make a warrantless search are subject to de novo review
on appeal. 'In performing such analysis, we are bound by the
trial court's findings of historical fact unless "plainly wrong"
or without evidence to support them[.]'" Archer v. Commonwealth,
26 Va. App. 1, 8, 492 S.E.2d 826, 830 (1997) (citations omitted).
At approximately 11:30 a.m. on October 10, 1999, Richmond
Police Officer Danny Rhodenizer, while investigating a "stolen dog
call," accompanied two "complaining victims" to defendant's
residence. Aware that "persons at [the] residence" were the
subject of "active warrants," for unspecified offenses allegedly
committed in both Richmond and Henrico County, Rhodenizer knocked
at the "front door" of the home. "A young lady," later identified
as defendant's aunt, appeared, and Rhodenizer asked "for . . .
somebody that owned . . . a dog." In response, the aunt woke
defendant and his girlfriend, Rita Raines, then asleep in the "far
[rear] right bedroom," 1 and advised defendant, owner of a boxer
1
A floor plan of the residence indicated that the front
door opened into a dining and living room area, directly
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dog, of the inquiry. Defendant and Raines proceeded to the door,
spoke with Rhodenizer and company and, at Rhodenizer's request,
defendant retrieved the dog from the bedroom. The "complaining
victims" confirmed that it was not the missing animal, apologized
for any inconvenience and left the residence.
While defendant was returning the dog to the bedroom, a radio
dispatch provided Rhodenizer with "several names for the active
warrants," including two men, one identified as Adib Marzuq.
Rhodenizer again "tapped on the screen door" and inquired of
Raines whether Adib Marzuq was "at the residence." Raines once
more summoned defendant from the rear bedroom, and he "presented
his identification" to Rhodenizer, now "inside" the living room of
the home. During the resulting exchange, Rhodenizer asked, "how
many people were in the house," and defendant responded, "him, Ms.
Raines and the lady on the couch [his aunt]." Rhodenizer recalled
that defendant then appeared "nervous."
Defendant again returned to the bedroom, while Rhodenizer,
joined by two additional officers, was "confirming" the warrants.
However, within a "few minutes," Rhodenizer recalled defendant
from the bedroom into the living area and arrested and handcuffed
him. Rhodenizer then noticed an unidentified man exit the
connected by a straight hallway to three bedrooms and a bath,
with doors clearly visible from the front door. A kitchen, also
visible, was located at the left front of the house.
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"[s]econd from the rear" bedroom, also located to the right of the
hallway connecting the living and bedroom areas.
With defendant in custody, Rhodenizer determined to "sweep
the area . . . for weapons, and . . . any other people in the
house," and, accompanied by another officer, "walked back to the
rear of the house." Upon entry into defendant's bedroom, a "small
package of cocaine" was "immediately apparent . . . on top of the
rear left dresser," and "a large amount" of cocaine was "in plain
view in the [open] top drawer." The officers then "secured" the
room, directed everyone present into the living area and sought a
search warrant. 2
When asked at the suppression hearing if fear of "people in
the house" prompted the search, Rhodenizer testified, "I always
have a basis to believe I'm potentially in danger." In recounting
safety concerns peculiar to the instant circumstances, Rhodenizer
noted that "other people were coming out of the the [sic]
bedrooms," after defendant had represented otherwise, and "also
the fact [he] had completely lost sight of [defendant and Raines]
each time they go back to the bedroom, they close the door."
Thus, Rhodenizer undertook the sweep search "to prevent [him] from
being endangered" by persons and threats he was not "presently
aware of."
2
The officers later determined that the house was occupied
by defendant, his aunt, brother, sister and her two children.
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In granting defendant's motion to suppress, the trial court
concluded that Rhodenizer "was not [in] the least bit concerned
about his safety, other than to the extent that every police
officer . . . in every circumstance has some concern about his
safety." The court further reasoned that prompt removal of
defendant from the premises following the arrest would have
allayed any safety concerns. Relying upon the lessons of Maryland
v. Buie, 494 U.S. 325 (1990), the Commonwealth appeals.
II.
In Buie, police obtained arrest warrants for Buie and his
alleged accomplice in an armed robbery, proceeded to Buie's home,
entered the residence and apprehended Buie as he "emerged from the
basement." Id. at 328. Police then "entered the basement 'in
case there was someone else' down there" and observed and seized a
"red running suit," clothing allegedly worn by a perpetrator of
the robbery. Id. In reversing a decision of the Court of Appeals
of Maryland that suppressed the evidence, the Supreme Court
defined a "'protective sweep' . . . [as a] quick and limited
search of premises, incident to an arrest," a "narrowly confined
. . . cursory visual inspection of those places in which a person
might be hiding," and approved the procedure to insure "the safety
of police officers and others." Id. at 327.
Consistent with the rationale of Terry v. Ohio, 392 U.S. 1
(1968), and Michigan v. Long, 463 U.S. 1032 (1983), the Court
recognized the "interest of [police] in taking steps to assure
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themselves that the house in which a suspect is being, or has just
been arrested is not harboring other persons who are dangerous and
who could unexpectedly launch an attack." Buie, 494 U.S. at 333.
Thus, "as a precautionary matter and without probable cause or
reasonable suspicion," police "could . . . look in closets and
other spaces immediately adjoining the place of arrest[.]" Id. at
334. However, a search "[b]eyond that," while permissible,
required "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." Id.;
see Conway v. Commonwealth, 12 Va. App. 711, 720-21, 407 S.E.2d
310, 315 (1991).
Here, assuming, without deciding, that the disputed search
extended into an area not "immediately adjoining the place of
arrest," a reasonably prudent officer would have been justified in
the belief that someone hidden in the hallway or adjacent rooms
endangered persons on the scene. 3 The police had been advised
that no fewer than two men residing at the address were the object
of outstanding arrest warrants. A "nervous" defendant had not
truthfully disclosed to police all persons present in the house,
omitting an unidentified man observed by Rhodenizer exiting a
3
Fourth Amendment jurisprudence "turns upon a
'reasonableness' determination" from an objective, rather than
subjective, perspective. Whren v. United States, 517 U.S. 806,
817 (1996).
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closed bedroom door and disappearing in the hallway area. All
doors opening into the hall had remained closed during the police
activity in the living area, with defendant opening the door to
his bedroom only to exit and re-enter. Under such circumstances,
Rhodenizer properly conducted the limited, cursory sweep
countenanced by Buie.
Accordingly, we reverse the disputed order and remand the
proceedings to the trial court.
Reversed and remanded.
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Benton, J., dissenting.
The following principles govern our review:
When we review a trial court's denial of
a motion to suppress, "[w]e view the
evidence in a light most favorable to . . .
the prevailing party below, and we grant all
reasonable inferences fairly deducible from
that evidence." Commonwealth v. Grimstead,
12 Va. App. 1066, 1067, 407 S.E.2d 47, 48
(1991). In our analysis, "we are bound by
the trial court's findings of historical
fact unless 'plainly wrong' or without
evidence to support them." McGee v.
Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing
Ornelas v. United States, 517 U.S. 690, 699
(1996)).
McNair v. Commonwealth, 31 Va. App. 76, 81-82, 521 S.E.2d 303,
306 (1999). Although we must consider de novo the question
whether the facts prove a seizure in violation of the Fourth
Amendment, we cannot ignore our obligation to defer to the trial
judge's findings of historical fact and inferences drawn from
those facts. See Reittinger v. Commonwealth, ___ Va. ___, ___,
___ S.E.2d ___, ___ (2000).
Upon his consideration of the evidence, the trial judge
found that the officer arrested Adib Ameer Marzuq "near the
front door" and had no "right to go . . . into that [bed]room."
The trial judge also specifically found that the evidence failed
to prove an articulable basis upon which the officers could have
reasonably had a safety concern. He found as follows:
[I] had the opportunity to observe the
officer when he testified and to hear what
the officer said. Having observed the
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demeanor of the officer, I got the feeling
that the officer was not the least bit
concerned about his safety other than to the
extent that every police officer to some
extent in every circumstance has some
concern about his safety.
The record supports those findings.
The evidence in the record proved that a police officer and
two girls arrived at the door of Marzuq's residence to inquire
about the girls' complaint of a lost or stolen dog. When
informed by his aunt of the officer's presence, Marzuq and his
female friend came to the door from his bedroom. After the
officer instructed Marzuq to bring his dog to the door, Marzuq
went to his bedroom and returned with the dog. Satisfied that
the dog was not theirs, the girls left.
The police officer remained on the front porch of the
residence and spoke on his radio while Marzuq returned the dog
to his bedroom. After the officer tapped on the screen door,
Marzuq's female friend again went to the door and spoke to the
officer, who asked, "[Is] Adib Marzuq here at the residence?"
She went to get Marzuq. When Marzuq returned to the front door,
the officer asked for identification. After Marzuq went to get
his identification, three officers entered the residence
uninvited. The officers stood inside the residence within two
or three feet of the front door. When Marzuq returned to the
front door with identification, the police officers arrested
him, "patted him down, [and] then placed him in handcuffs"
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immediately inside the front door of the residence. The
officers then "asked was anybody in the bedroom." When Marzuq
said the dog was still there, the officers instructed his female
friend to put the dog in the bathroom.
After the female walked down the hallway to the bedroom and
moved the dog to the bathroom, two of the officers walked down
the hallway and searched Marzuq's bedroom. The exhibit in the
record establishes that the door of the bedroom is forty-eight
feet from the front door of the house where the police arrested
Marzuq.
The officer who arrested Marzuq testified that before he
initially went to the door with the two girls, he learned that
"there were persons at the residence that had active warrants in
the City [of Richmond] and in Henrico County." He did not know
the names of the persons or why the warrants had been issued.
After the two girls left, the officer learned who "the warrants
were for." Marzuq's female friend testified that the capias had
been issued because Marzuq "didn't go to court."
The officer testified that after he entered the residence
and arrested Marzuq, he and another officer went to the bedroom
"to sweep the room . . . [for] weapons or . . . other people in
the house." The officer's testimony cannot be read to suggest
that he entered and swept the room because he believed Marzuq
lied about the presence of another person in the house. Indeed,
he testified as follows:
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Q: Did you ask Mr. Marzuq if there was
anybody else in that room?
A: I asked if there was anybody in the
house. They told me no; it was only the
three of them.
Q: Are you sure the question was the house
and not the room?
A: The room, the house, it possibly could
have been the room, if there was anyone else
in the room.
Viewed in the light most favorable to upholding the judge's
factual findings, we must accept that the trial judge, as fact
finder, believed that the officer's inquiry only concerned the
bedroom.
The officer also testified that neither the aunt nor
Marzuq's female friend caused him any safety concerns. He did
not go to the bedroom because of any belief of danger. In fact,
he testified: "I didn't believe I was in danger. The point was
not that I believed myself in danger, it was to prevent myself
from being endangered that I'm not presently aware of." The
officer's testimony establishes that he went into the bedroom
because he believed he was entitled to search the house.
The facts in Maryland v. Buie, 494 U.S. 325 (1990),
indicate that after two men committed an armed robbery of a
restaurant, the police obtained a warrant to arrest Buie and a
specifically named accomplice. See id. at 328. When the police
entered Buie's home to arrest him, Buie was in his basement.
The officers drew their guns and ordered everyone in the
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basement to come out and show their hands. Buie came from
"around the bottom of the stairwell and . . . emerged from the
basement." Id. at 328. The officers handcuffed him and then
searched the basement for other persons. See id. Because
Buie's accomplice in the robbery had not been arrested, the
police entered the basement "to look for the suspected
accomplice or anyone else who might pose a threat to the
officers." Id. at 329 (emphasis added).
Approving the search of the basement from which the
officers commanded Buie to leave, the Supreme Court first noted
the following limitation on the search of the residence:
Possessing an arrest warrant and probable
cause to believe Buie was in his home, the
officers were entitled to enter and to
search anywhere in the house in which Buie
might be found. Once he was found, however,
the search for him was over, and there was
no longer that particular justification for
entering any rooms that had not yet been
searched.
Id. at 332-33. The Court then stated the following rules that
govern a limited search after the arrest:
[A]s an incident to the arrest the officers
could, as a precautionary matter and without
probable cause or reasonable suspicion, look
in closets and other spaces immediately
adjoining the place of arrest from which an
attack could be immediately launched.
Beyond that, however, we hold that there
must be articulable facts which, taken
together with the rational inferences from
those facts, would warrant a reasonably
prudent officer in believing that the area
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to be swept harbors an individual posing a
danger to those on the arrest scene.
Id. at 334 (emphasis added).
Thus, the Supreme Court did not approve the use of
protective sweeps beyond the immediate area of arrest whenever a
person is arrested at a residence. The Court held "that the
Fourth Amendment would permit the protective sweep [beyond the
area of arrest] . . . if the searching officer 'possesse[d] a
reasonable belief based on "specific and articulable facts
which, taken together with the rational inferences from those
facts, reasonably warrant[ed]" the officer in believing,' that
the area swept harbored an individual posing a danger to the
officer or others." Id. at 327 (emphasis added) (citation
omitted). Indeed, the Supreme Court specifically rejected
"[t]he State's argument that no level of objective justification
should be required [to search beyond the spaces immediately
adjoining the place of arrest] because of 'the danger that
inheres in the in-home arrest for a violent crime.'" Id. at 334
n.2 (citation omitted).
The record in this case established that the officers
arrested Marzuq at the front door of the residence. Contrary to
the Buie rule, however, some of the officers then went to an
area of the house beyond that space "immediately adjoining the
place of arrest" to sweep search. 494 U.S. at 334. They went
from the foyer, down a hallway forty-eight feet long, and into
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the bedroom. The officers could only do that if they possessed
articulable facts which would have warranted a reasonable
conclusion that "the [bedroom] . . . harbors an individual
posing a danger" to the officers. Id. No objective facts
proved that. All the evidence showed was that a "capias" of
some kind was outstanding. Indeed, at the suppression hearing,
the prosecutor "concede[d] it is not a warrant of any kind."
The officer further testified that he also was looking for
weapons. Nothing in Buie extends the scope of the sweep to a
search for weapons. Moreover, the officers had no reasonable
basis to believe Marzuq had a weapon. The prosecutor conceded
at trial that the evidence proved no "factors that . . . this
gentleman is armed and dangerous."
Based on the evidence and the officer's demeanor, the trial
judge found that the officers "allowed [Marzuq] to go back and
forth, freely, on a number of occasions," that the officers did
not "know . . . whether [the warrant] was for a felony . . . or
misdemeanor . . . [or] for . . . failure to appear . . . of some
type," and that, although the "officer . . . concluded that he
wanted to sweep the area for . . . weapons and anyone else in
the house[,] . . . the sweep seemed to concern only the back
bedroom." The record supports the trial judge's finding that
the officers had no basis to believe there was a threat to their
safety. They simply told Marzuq and his female friend they
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intended to search Marzuq's bedroom "like in a traffic stop; I
can search your car."
As the Supreme Court ruled in Buie, however, a search in a
residence "as an incident to the arrest" must be confined to
"spaces immediately adjoining the place of arrest." 494 U.S. at
334. That search, designated as a "sweep," is limited to
"spaces . . . from which an attack could be . . . launched,"
id., and, thus, by definition does not include a search for a
weapon. As the Supreme Court further noted in Buie, no
suspicion arises merely because an arrest occurs in a home, even
if it is an "arrest for a violent crime," because "the existence
of the arrest warrant implies nothing about whether dangerous
third parties will be found in the arrestee's house." 494 U.S.
at 334-35 n.2. In this case, the trial judge's finding that the
officers had no information that any person in the house was
dangerous is supported by the evidence. Moreover, the officers
had no basis to believe anyone was in the bedroom. Although the
prosecutor told the trial judge "that this is a very deminimis
intrusion," the Supreme Court rejected that precise argument in
Buie. See id.
As the trial judge found from the evidence, Marzuq was "in
handcuffs" and "near the front door." Nothing in Buie allows
the officers to search a bedroom forty-eight feet down a hallway
from the place of arrest, when they had no articulable suspicion
that a person who poses a danger to them might be there. As the
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judge found, and the prosecutor conceded, the existence of a
capias, standing alone, did not add any fact to the assessment
of danger. One of the officers who made the search testified
that he was merely acting upon a generalized belief that a
police officer must always be concerned about safety issues.
Thus, he went to the bedroom to look "for weapons and also to
make sure there weren't any other people in the house."
Having concluded that there were no articulable facts that
any person posed a danger, the judge also found as follows:
[T]here was no need, nor any right, for the
officer to go to that bedroom under those
circumstances, to sweep the area for
weapons; there being no evidence of [Marzuq]
having demonstrated any conduct that would
lead the officer to reasonably conclude that
he or the other officers were in danger.
For that reason, I grant the motion to
suppress.
The trial judge's findings were based upon credibility
assessments of the witnesses and were not plainly wrong.
For these reasons, I would hold that the facts fail to
support a sweep of the bedroom. Thus, I would affirm the order
suppressing the evidence.
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