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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2003 Decided June 17, 2003
No. 01-3016
UNITED STATES OF AMERICA,
APPELLEE
v.
ERIC SEAN REDMAN, A/K/A ERIC REDMOND,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00198–01)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for the appellant. A.J. Kramer, Federal
Public Defender, was on brief.
Patricia A. Heffernan, Assistant United States Attorney,
argued the cause for the appellee. Roscoe C. Howard, Jr.,
United States Attorney, and John R. Fisher and Roy W.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
McLeese III, Assistant United States Attorneys, were on
brief.
Before: HENDERSON and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Eric Sean
Redman (Redman) appeals the district court’s denial of his
motion to suppress evidence, asserting that the police search
incident to his arrest violated the Fourth Amendment to the
United States Constitution. As explained below, we conclude
that Redman waived his challenge to the protective sweep
and, accordingly, we dismiss his appeal.
I.
Redman entered a conditional guilty plea, see FED. R. CRIM.
P. 11(a)(2), to one count each of unlawful possession with
intent to distribute five grams or more of cocaine base, 21
U.S.C. § 841(a)(1), (b)(1)(B)(iii) (2000); unlawful possession of
a firearm during a drug trafficking offense, 18 U.S.C. § 924(c)
(2000), aggravated assault, 22 D.C. CODE § 504.1 (Michie
1981), attempted assault with a dangerous weapon, 22 D.C.
CODE §§ 502, 103 (Michie 1981), attempted kidnapping, 22
D.C. CODE §§ 2101, 103 (Michie 1981 & Supp. 2001) and
attempted first degree sexual abuse, 22 D.C. CODE §§ 4102,
4118 (Michie 1981 & Supp. 2001). The evidence sought to be
suppressed was seized when the District of Columbia Joint
Fugitive Task Force (Task Force) executed a warrant for his
arrest at his apartment in the early morning of May 1, 2000;
the District of Columbia Metropolitan Police Department
(MPD) subsequently obtained a warrant to search the premis-
es.
According to the testimony of government witnesses, four
FBI agents (members of the Task Force) executed the arrest
warrant. The agents arrived at the apartment at 6:30 a.m.
that day. Three agents stationed themselves at the front and
one at the rear of the building. One of the three at the front
knocked on the apartment door and announced, ‘‘Police, open
3
the door,’’ but received no response. When the agents
threatened to forcibly enter the apartment after waiting some
ten to fifteen minutes, Redman opened the door, put his
hands on his head and surrendered. During the ten to fifteen
minute interval, the agent in the rear saw someone briefly
peer out of the window of the apartment.
The agents entered the apartment and saw two female
teenagers on a couch in the living room adjacent to the entry.
The agents told them not to move and the women complied.
In plain sight on a window ledge in the living room was a
cigar box that contained ‘‘green baggies’’ and what appeared
to be marijuana. On a table in the living room, the agents
saw another cigar box containing another green bag.
After they secured the two women, the agents searched the
apartment for other individuals. They looked in a hall closet
ten feet from where Redman was being held and found a rifle
leaning against the wall and metal ammunition boxes on the
floor. In a bedroom across from the closet, they saw a knife
on a dresser and in the bedroom closet saw $900 in U.S.
currency. They also checked the bathroom but saw nothing
there. The agents secured the apartment and called MPD
Detective Jackson to investigate the scene. Before Jackson
arrived, one of the two females asked to use the bathroom.
An agent searched the bathroom for weapons before allowing
her to enter and discovered a shotgun in the bathroom linen
closet. The agents then noticed the barrel of a .22 caliber
revolver protruding from a duffel bag on the floor near the
front door.
Detective Jackson arrived at the apartment between 8:15
and 8:30 a.m. and, learning of the five items observed by the
Task Force—the green baggies, the .22 revolver in the duffel
bag by the front door, the rifle in the hall closet, the shotgun
in the bathroom linen closet and the currency—called a MPD
mobile crime unit to the scene to process the evidence. The
two females were still at the scene (Redman in the meantime
had been transported to jail by the Task Force) and remained
there while the mobile crime unit began processing the items
discovered by the Task Force. Jackson then decided that the
4
two should be taken to the MPD Seventh District headquar-
ters for questioning. One of them needed additional clothing
so Jackson allowed her to retrieve clothes from the bedroom,
escorted by a female crime scene technician and him. As the
female picked up some clothes, Jackson saw a clear plastic
package containing what appeared to be a white rock on the
floor. Jackson also saw on the floor a round of ammunition of
a type not utilized by the weapons disovered by the FBI. At
that point, Jackson ordered everyone on the scene to stop
working, commanded that no one was to search the apart-
ment further and then secured the premises to obtain a
search warrant. Jackson posted a uniformed officer in the
apartment and ordered everyone else to leave the scene
sometime between 9:30 and 10:00 a.m.
Jackson and another MPD officer returned about 3:00 p.m.
with a search warrant and began a search of the premises.
They discovered a .16 gauge shotgun in the bedroom closet, a
.12 gauge shotgun behind headboard in the bedroom, and a
7.62 millimeter assault rifle, a 9 millimeter handgun and about
$7,000 in U.S. currency in a dresser drawer in the bedroom.
In a plumbing access located in the wall between the bedroom
and the bathroom they found a plastic packet of white rock
and a magazine for the assault rifle and, in a jogging suit in
the bedroom, they found another plastic package with two
smaller packets, each containing a white rock-like substance.
The two officers also discovered in the bedroom what Jackson
described as a ‘‘radio code list,’’ used, Jackson testified, to
communicate in code via hand held radios.
Redman filed a Motion to Suppress Tangible Evidence on
September 7, 2000. In it, Redman challenged the Task
Force’s initial protective sweep that uncovered the green
baggies, the rifle, the $900, the shotgun from the bathroom
linen closet and the .22 caliber revolver. Motion to Suppress
Tangible Evidence, United States v. Redman, Crim. No. 00–
0198 (filed Sept. 7, 2000). Redman argued that the search
the Task Force conducted incident to his arrest went beyond
the protective sweep permitted by Maryland v. Buie, 494
U.S. 325 (1990), because it extended beyond the doorway
where Redman was arrested and lasted past Redman’s sei-
5
zure. Motion to Suppress Tangible Evidence at 5–6. Fur-
thermore, Redman claimed, because there was no indication
that the arresting officers feared the two females found in the
apartment, the officers should not have conducted a protec-
tive sweep under Buie once they effected Redman’s arrest.
Id. at 6. Redman’s motion sought the suppression of the five
items discovered during the sweep along with the later dis-
covered evidence because the latter constituted ‘‘fruit of the
poisonous tree.’’ Id. at 9–10.
At the suppression hearing, the court cautioned Redman’s
counsel that his questioning of a government witnesses went
beyond the scope of the hearing, noting, ‘‘[t]he scope of this
hearing is to find out whether this was a legitimate protective
search.’’ 9/12/2000 Tr. 99. Following the witnesses’ testimo-
ny, however, Redman changed the theory of his challenge.
Instead of seeking to suppress the five items discovered
during the Task Force’s sweep, Redman argued that the
items Detective Jackson later seized pursuant to the search
warrant should be suppressed. The thrust of Redman’s new
argument was the alleged inconsistency between Jackson’s
testimony and that of Redman’s witness, Lakeeshia Pendar-
vis, one of the females in the apartment when Redman was
arrested. Pendarvis testified that the officers at some point
placed two handguns on the living room table in front of the
couch where she sat whereas, according to Jackson, only one
handgun was found while the two females were there and it
was placed on the dining room table. The discrepancy,
Redman said, cast doubt on Jackson’s claim that certain
evidence, including one of the two handguns (the 9 millime-
ter), was not found until the search warrant was executed.
Redman insisted that because there were only two handguns
found in the apartment—the .22 caliber revolver from the
duffel bag and the 9 millimeter from the bedroom dresser—
one of the two guns Pendarvis saw the police place on the
living room table that morning—hours before the search
warrant was executed—had to have been the 9 millimeter.
And because, according to Redman, the 9 millimeter had to
have been discovered before the search conducted pursuant to
the warrant, and because no government witness testified
6
when the evidence seized with the 9 millimeter was found, ‘‘it
[was] at least unclear TTT that these other items were found’’
during the search pursuant to the warrant; therefore ‘‘the
[ ]9 millimeter handgun, the monies found in the dresser
drawer in the back bedroom, the shotgun, which was found in
the back bedroom after having allegedly removed the bedpost
from the front of the radiator, as well as the narcotics, which
were allegedly found in the back room, should be sup-
pressed.’’ Id. at 177–78, 195–96. Redman’s counsel began by
stating that
in order to make a determination of whether or not
it is appropriate to suppress this evidence, we must
make our analysis in light of Bowie [sic] to deter-
mine whether or not the evidence that is elicited or
secured, ostensibly under the protective sweep, is
appropriately admitted in this case, and I would
represent that it is not.
Id. at 169. That evidence, he maintained, had to be sup-
pressed because officers had conducted a full-blown warrant-
less search—not simply a protective sweep—that uncovered
the 9 millimeter and other evidence. In fact, Redman
summed up thus:
I will not endeavor to argue that the other five items
that were revealed during the protective sweep were
found in violation of the Fourth Amendment, but TTT
would submit that the [ ]9 millimeter handgun [and
other evidence from the bedroom] should be sup-
pressed as violative of the Fourth Amendment.
Id. at 177–78.
Both the court and the government expressly noted the
shift in Redman’s position. The court stated that it had
‘‘thought that there was one thrust to the motion, TTT that the
protective sweep was improperTTTT [It] appreciate[d] that
[Redman’s counsel] did not argue that, because [it thought]
the testimony was very clear on that, very straightforward,
and very credible,’’ id. at 178, and the prosecutor stated ‘‘I
now take it that there is no challenge’’ to the sweep, id. at
7
183. Redman said nothing to correct the court’s and the
government’s interpretation of his argument. The district
court then denied Redman’s motion to suppress, concluding
that ‘‘the shotgun in the closet, the substantial amount of
cash, and the [ ]9 millimeter gun, a second shotgun, TTT were
found in places where they would not be seen in a proper
protective search’’ and ‘‘[t]hey were all items that were found
by Detective Jackson and Officer Costello subject to the
search warrant.’’ Id. at 202. The court rejected Pendarvis’s
testimony, finding that it was ‘‘not reliable for a number of
reasons.’’ Id. Redman then entered his conditional plea of
guilty and appealed.
II.
While Redman asserts on appeal that the district court
erred in denying his suppression motion, his challenge is not
the one he mounted at the hearing; instead he resurrects the
challenge he had originally made, namely that the sweep
conducted by the Task Force exceeded the limits of Mary-
land v. Buie because it went beyond the entryway and
continued after Redman had been apprehended. Quoting
Buie, Redman explains that two sorts of sweeps incident to
an arrest are permissible: ‘‘The first involves ‘look[ing] in
closets and other spaces immediately adjoining the place of
arrest from which an attack could be immediately launched.’
The second goes ‘beyond that,’ but is nevertheless circum-
scribed’’ to spaces where individuals might hide, and is lawful
only if based on ‘‘ ‘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.’ ’’ United States v. Ford, 56 F.3d 265, 268–69
(D.C. Cir. 1995) (quoting Buie, 494 U.S. at 334) (alteration in
original) (footnote omitted). He argues that the search con-
ducted when he was arrested qualifies as neither because it
extended to the hallway and bedroom—too distant from the
entryway where Redman surrendered to qualify as the first
kind—and because the officers could not reasonably have
8
believed the two young females posed the type of threat
supporting the second kind.
Although the government denies that the sweep the Task
Force conducted was improper under Buie, it first asserts
that Redman waived his challenge to the Task Force sweep
because he withdrew that challenge at the suppression hear-
ing. See FED R. CRIM. P. 12(b); United States v. Mitchell, 951
F.2d 1291, 1296–97 (D.C. Cir. 1991) (appellant waived chal-
lenge to search on appeal based on ground that search was
conducted without warrant because appellant’s ground for
suppression in district court was different, namely no proba-
ble cause), cert. denied, 504 U.S. 924 (1992); see also United
States v. Weathers, 186 F.3d 948, 952 (D.C. Cir. 1999) (‘‘unless
cause is shown, [Rule 12(b) claims] may not later be resur-
rected on appeal’’ (internal quotations omitted)), cert. denied,
529 U.S. 1005 (2000). We agree with the government.
Rule 12(b) of the Federal Rules of Criminal Procedure
requires that a motion to suppress evidence must be made
before trial and Rule 12(f) mandates that the failure to make
such an objection ‘‘shall constitute waiver thereof.’’1 Waiver
not only plainly applies to an unmade pre-trial objection but
also to an objection initially made but subsequently with-
1 The applicable version of Rule 12(b) provided:
(b) Pretrial Motions. Any defense, objection, or request
which is capable of determination without the trial of the
general issue may be raised before trial by motionTTTTThe
following must be raised prior to trial:
TTTT
(3) Motions to suppress evidence; TTTT
FED. R. CRIM. P. 12(b) (2002). The applicable form of Rule 12(f)
stated, ‘‘Failure by a party to raise defenses or objections or to
make requests which must be made prior to trial TTT shall consti-
tute waiver thereof.’’ FED. R. CRIM. P. 12(f) (2002). Rule 12 was
amended effective December 1, 2002 but the amendment does not
affect the outcome of this appeal. FED. R. CRIM. P. 12 advisory
comm. note. Rule 12(b)(3) is now included, unchanged, in Rule
12(b)(3)(C) and the waiver language of Rule 12(f) is now contained
in Rule 12(e). FED. R. CRIM. P. 12(b)(3)(C), (e) (2003).
9
drawn or abandoned. E.g., United States v. Sheppard, 149
F.3d 458, 461 (6th Cir. 1998) (defendant waived suppression
motion when he withdrew motion and never renewed it).
Based on Redman’s counsel’s statement at the suppression
hearing as well as the court’s and the prosecution’s response
to it, we conclude that Redman at that time withdrew his
challenge to the protective sweep. Redman does not dispute
that he altered the thrust of his argument at the hearing but
does dispute that his counsel’s statements constituted a with-
drawal of his challenge. Instead, according to Redman, those
statements should be interpreted as a ‘‘choice not to embellish
on his written suppression arguments.’’ Reply Brief of Ap-
pellant at 4. Redman asserts that his counsel’s most damag-
ing statement, ‘‘I will not endeavor to argue that the other
five items that were revealed during the protective sweep
were found in violation of the Fourth Amendment,’’ 9/12/2000
Tr. 177, did not ‘‘explicitly’’ withdraw his motion. Reply Brief
of Appellant at 4. Moreover, neither the district court nor
the prosecution viewed it as a withdrawal and hence a waiver
of his argument.
According to Redman, when the court stated, in response
to his argument, that it ‘‘appreciate[d] that [Redman’s coun-
sel] did not argue [the protective sweep challenge] because
the testimony was very clear on that, very straightforward,’’
9/12/2000 Tr. 178–79, it meant only that Redman had wisely
opted not to belabor a losing argument, not that he did not
intend to preserve the argument. Redman relies on the fact
that the court made several factual findings relevant only to
the Buie sweep and ultimately issued a general ruling (‘‘there
are no grounds to suppress the tangible evidence under the
Fourth Amendment or any other provision of the Constitu-
tion,’’ id. at 203) which denied both the post-sweep challenge
articulated at the hearing and the initial sweep challenge
made by motion. Furthermore, Redman asserts, we cannot
construe the prosecutor’s statement ‘‘I now take it that there
is no challenge’’ to the protective sweep, id. at 183, as a
recognition of Redman’s intent to withdraw his motion direct-
ed at the sweep because the prosecutor then went on to
10
defend the Task Force sweep on the merits. We reject
Redman’s rewrite of the suppression hearing.
Redman’s counsel’s statement that ‘‘I will not endeavor to
argue that the other five items that were revealed during the
protective sweep were found in violation of the Fourth
Amendment’’ plainly meant that Redman withdrew his chal-
lenge to the Task Force’s protective sweep. Although Red-
man’s counsel did not expressly declare ‘‘I withdraw my
written motion,’’ his language nonetheless manifested that
Redman was abandoning his challenge to the sweep. Indeed,
if Redman meant only to convey his intention to rest on his
written motion without argument, he would have demurred
when the court noted the ‘‘thrust of this challenge had to do
with the sweep TTT [and it] appreciated Redman did not
argue that’’ and the prosecutor said ‘‘I now take it that there
is no challenge.’’2
Furthermore, the district court’s ruling did not, as Redman
contends, include Redman’s written motion.3 Although the
2 Our conclusion is also bolstered by Redman’s counsel’s insis-
tence at Redman’s subsequent plea that:
it was important to Mr. Redman that this matter be
resolved by a conditional plea, because it is still his conten-
tion that, in fact, the items that were found in the back
bedroom, i.e., the [ ]9 millimeter hand gun, the shot gun,
which was alleged to have been found in the dresser, the
money, the crack cocaine that Detective Jackson alleges
were found subsequent to the secure [sic] of a search
warrant were, in fact, found before that search warrant
was secured, and as such should have been suppressed by
way of the motion, or the defense motion for suppression.
9/22/2000 Tr. 17 (Plea Hearing). Significantly, Redman’s counsel
omitted the five items discovered during the protective sweep.
3 For this reason we also reject Redman’s assertion that we may
reach the merits of the protective sweep even if he withdrew his
challenge thereto because the district court ‘‘passed on’’ the objec-
tion he asserts here. See Lebron v. Nat’l R.R. Passenger Corp., 513
U.S. 374, 379 (1995) (review of issue not pressed can be undertaken
so long as lower court passed on it). But the trial court did not
pass on it.
11
lower court made factual findings relevant to the sweep,
namely that the Task Force ‘‘had real reason to be concerned
about their safety’’ and that there was ‘‘convincing evidence of
the good faith of their sweep,’’ id. at 198–99, those findings
were simply part of the district court’s dissection of the
various law enforcement officers’ sequential discoveries—the
initial protective sweep, Jackson’s discovery when he accom-
panied one of the females to the bedroom and the later, and
final, search pursuant to the warrant. The district court
viewed the only remaining aspect of Redman’s motion to be
whether the 9 millimeter and other evidence claimed to have
been seized pursuant to the search warrant were in fact
seized earlier—the court even stated, ‘‘The only question that
has been raised at all in this entire scenario is the testimony
by Ms. Pendarvis about seeing at some point two revolvers on
a table.’’ Id. at 202. That question was relevant only to the
challenge Redman made at the hearing, not the one in his
written motion.4
For the foregoing reasons, we conclude that Redman with-
drew his challenge to the protective sweep and under FED. R.
CRIM. P. 12 his challenge is therefore waived. Accordingly,
the appeal is dismissed.
So ordered.
4 Likewise, the prosecutor’s remark that ‘‘I now take it that there
is no challenge,’’ 9/12/2000 Tr. 183, manifested his understanding
that Redman’s objection to the sweep was withdrawn notwithstand-
ing the prosecutor’s unprompted defense of the sweep as legal. His
statement that the five items discovered by the Task Force were
‘‘the product of a lawful protective sweep,’’ id. at 190, was intended
only as part of his argument that both the Task Force and the MPD
were careful to limit the scope of their warrantless searches—a
contention aimed at Redman’s argument made at the hearing.