United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2005 Decided November 18, 2005
No. 04-3068
UNITED STATES OF AMERICA,
APPELLEE
v.
ANTHONY THOMAS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00458-01)
A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant. Michelle M. Peterson,
Assistant Federal Public Defender, entered an appearance.
John P. Gidez, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, and John R. Fisher, Roy W. McLeese, III, and
George P. Eliopoulos, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and SENTELLE and
ROGERS, Circuit Judges.
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Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Anthony Thomas challenges his
conviction for unlawful possession of a firearm by a convicted
felon, arguing the district court erred in failing to suppress guns
and ammunition found during a “protective sweep” of his
apartment. See Maryland v. Buie, 494 U.S. 325 (1990). In the
alternative he challenges the mandatory application of the
United States Sentencing Guidelines to determine his sentence.
We affirm the order of the district court denying the motion to
suppress but, in accordance with United States v. Coles, 403
F.3d 764 (D.C. Cir. 2005), we remand the record for that court
“to determine whether it would have imposed a different
sentence, materially more favorable to the defendant, had it been
fully aware of the post-Booker sentencing regime.” Id. at 771.
I. Background
Between 6:00 and 6:30 one morning, five Deputy U.S.
Marshals arrived at an apartment in Washington, D.C. to execute
a warrant for the arrest of Anthony Thomas in connection with
a parole violation. The marshals, with weapons drawn, knocked
and announced their purpose and the door was opened.
The front door to Thomas’ one-bedroom apartment opens
immediately into a hallway. A foot or two to the left is the
entrance to the living room and to the right are doorways off the
hallway leading to the kitchen, bathroom, and bedroom. The
bedroom door at the far end of the hall is 15 feet from the
entrance to the apartment.
The first officers to enter the apartment followed Thomas
from the hallway into the living room, where they found two
other individuals. Meanwhile, Deputy Marshal William Martin
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and a colleague searched the kitchen, the bathroom, and the
bedroom in order “[to make] sure there was nobody else in the
immediate area.” Upon entering the bedroom, the officers first
looked under the bed to see if anyone was hiding there, then
turned their attention to an open closet. In plain view on the top
closet shelf they saw a shotgun shell and a handgun atop a stack
of clothes. At the bottom of the closet, they saw a “big bulked
up blanket or comforter,” which was “dome shaped” and
approximately three feet high. Deputy Martin testified that “a
person could have easily fit underneath the comforter.” Upon
removing the comforter, the officers discovered an assault rifle
and a shotgun. From the time the officers entered the apartment
until they found the firearms, “not more than a minute” had
passed.
Thomas was indicted on a single count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).
He moved to suppress as the fruits of an unlawful search both
the weapons and ammunition seized from his bedroom and the
subsequent statement he made admitting possession of the
firearms. After the close of evidence at the suppression hearing,
Thomas raised an alternative ground for suppression, namely,
that the officers’ initial entry into his apartment was unlawful.
Deputy Martin had testified that the Marshal’s Service learned
where Thomas lived after an “investigation was done” and
Thomas’ address “turned up.” Thomas argued this evidence was
insufficient to establish that the officers had reason to believe
Thomas lived at the address searched or would be present at the
time of the search.
The district court denied the motion to suppress in all
respects. The court concluded the officers’ entry into Thomas’
apartment was lawful because, per Deputy Martin’s testimony,
they had reason to believe Thomas lived at the address searched
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and “the early hour [of the arrest] heightened the probabilities of
locating the defendant” there. The court upheld the protective
sweep because Thomas’ bedroom “immediately adjoin[ed]” the
place of arrest, that is, “the hallway immediately inside his front
door.” Thereafter, a jury found Thomas guilty as charged and
the district court sentenced him to the minimum 188 months of
imprisonment allowed under the Sentencing Guidelines, which
specified a range of 188-235 months.
II. Analysis
Thomas argues the officers’ entry into his apartment and
their protective sweep of the bedroom violated his right under
the Fourth Amendment to the Constitution of the United States
to be free from unreasonable searches and seizures. In
considering the denial of a motion to suppress, we review de
novo the district court’s conclusions of law, including its
determinations of reasonable suspicion and probable cause, but
we “review [its] findings of historical fact only for clear error.”
See Ornelas v. United States, 517 U.S. 690, 699 (1996).
A. The Entry into Thomas’ Apartment
An arrest warrant “founded on probable cause” that the
suspect has committed a crime gives law enforcement officers
“the limited authority to enter a dwelling in which the suspect
lives when there is reason to believe the suspect is within.”
Payton v. New York, 445 U.S. 573, 603 (1980). As explicated
by five other circuits, the “reason to believe” standard is
satisfied by something less than would be required for a finding
of “probable cause.” See Valdez v. McPheters, 172 F.3d 1220,
1225-26 (10th Cir. 1999); United States v. Route, 104 F.3d 59,
62 (5th Cir. 1997); United States v. Risse, 83 F.3d 212, 216 (8th
Cir. 1996); United States v. Lauter, 57 F.3d 212, 215 (2d Cir.
5
1995); United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir.
1995). That is consistent with our decision in United States v.
May, 68 F.3d 515 (1995) (Fourth Amendment permits search of
suspect’s dwelling if officers have “reason to believe the suspect
is there”), where we upheld entry into a dwelling based upon an
address found in police records and upon testimony that the
suspect had slept there on the night of the murder, some two
days before the search. Id. at 516. The Ninth Circuit alone has
held that reason to believe “embodies the same standard of
reasonableness inherent in probable cause.” See United States
v. Gorman, 314 F.3d 1105, 1110 (9th Cir. 2002). We think it
more likely, however, that the Supreme Court in Payton used a
phrase other than “probable cause” because it meant something
other than “probable cause.”
Accordingly, we expressly hold that an officer executing an
arrest warrant may enter a dwelling if he has only a “reasonable
belief,” falling short of probable cause to believe, the suspect
lives there and is present at the time. Applying this standard, the
entry into Thomas’ apartment was lawful.
Thomas argues the Government’s evidence is insufficient
to establish the officers had even a reasonable belief he lived,
and was then present, in the apartment. Deputy Martin,
however, testified the marshals learned Thomas’ address after
an “investigation was done.” Thomas objects that Martin gave
no details of the investigation. Although the Government’s
evidence was succinct, to say the least, the word “investigation,”
even without details, denotes something at least akin to, as the
Government puts it, “a systematic official inquiry,” and in any
event more than a mere hunch, surmise, or suspicion.
That Thomas was a parolee and the marshals were
executing an arrest warrant for a parole violation lends support
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to the Government’s view. As a condition of his parole, Thomas
was required to keep his current address on file with his parole
supervision officer. See 28 C.F.R. §§ 2.85(a) & 2.204(a)(3),
(4)(ii). Therefore, we do not think the absence of testimony
about where the marshals got Thomas’ address is fatal to the
Government’s claim of reason to believe Thomas lived in his
apartment. Nor did Thomas’ counsel think the matter
insufficiently obvious to bother questioning Deputy Martin
about the details of his investigation.
As for whether the officers had reason to believe Thomas
would be at home when they executed the warrant, the early
morning hour was reason enough. See, e.g., May, 68 F.3d at 516
(“[T]he logical place one would expect to find [defendant] on
that ... morning was at his home”); United States v. Terry, 702
F.2d 299, 319 (2d Cir. 1983) (agents reasonably concluded
suspect would be home on a Sunday morning at 8:45).
Accordingly, we hold the officers’ entry into Thomas’ apartment
was in all respects lawful.
B. The Protective Sweep
Thomas also argues the search of his bedroom exceeded the
bounds of a permissible “protective sweep,” which the Supreme
Court has defined as a “quick and limited search ... incident to
an arrest” of spaces where a person may be found, “conducted
to protect the safety of police officers or others.” Buie, 494 U.S.
at 327. A protective sweep may last “no longer than is
necessary to dispel the reasonable suspicion of danger” and “no
longer than it takes to complete the arrest and depart the
premises.” Id. at 335-36.
The Supreme Court in Buie recognized two kinds of
protective sweeps. The first may be conducted “as a
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precautionary matter” and without probable cause or reasonable
suspicion, but it must be limited to “spaces immediately
adjoining the place of arrest from which an attack could be
immediately launched.” Id. at 334. The second may extend
beyond immediately adjoining spaces but must be based upon
“articulable facts which ... 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.
The Government does not claim the officers conducted the
second type of sweep described in Buie; it points to no facts
suggesting the officers had a reasonable belief that a person
posing a threat to them was in the apartment. The only issue,
therefore, is whether Thomas’ bedroom was a place
“immediately adjoining the place of arrest from which an attack
could be immediately launched.” Id.
Although Thomas was formally placed under arrest in the
living room, he was arrested, for the practical purpose of the
Fourth Amendment, when he was “apprehended ... at gun-
point,” In re Sealed Case, 153 F.3d 759, 767 n.3 (D.C. Cir.
1998), in the hallway immediately inside his front door. And,
as the district court found, every room swept “could be
immediately accessed from the hallway.” Because the entrance
to the bedroom was a straight shot down the hallway from the
spot where Thomas was arrested, the bedroom was a place
“immediately adjoining the place of arrest from which an attack
could be immediately launched.” Buie, 494 U.S. at 334; see
also United States v. Ford, 56 F.3d 265, 270 (D.C. Cir. 1995)
(“because the arrest took place in the hallway, and the bedroom
from which Ford emerged was immediately adjoining the
hallway, [the agent] could legitimately look in the bedroom for
potential attackers”).
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Thomas argues his “place of arrest” was just the area
“inside of the front door,” not the entire hallway of which it was
a part, and therefore the bedroom did not “immediately adjoin[]”
the place of arrest. According to Thomas, the immediately
adjoining spaces “included at most the living room, and the front
hallway.” Otherwise, in a small apartment such as this one the
“police would be entitled to sweep the entire premises without
a showing of reasonable suspicion.”
We think Thomas’ concept of the place of arrest is
unreasonably narrow. He points to no case where the place of
arrest has been defined more narrowly than the entirety of the
room in which the arrest occurred. Nor should we narrowly
define the place of arrest, as Thomas suggests, citing United
States v. Curtis, 239 F. Supp. 2d 1 (D.D.C. 2002), merely in
order to avoid permitting the police to sweep the entirety of a
small apartment. The safety of the officers, not the percentage
of the home searched, is the relevant criterion. Buie, 494 U.S.
at 327 (purpose of protective sweep is “to protect the safety of
police officers or others”). If an apartment is small enough that
all of it “immediately adjoin[s] the place of arrest” and all of it
constitutes a space or spaces “from which an attack could be
immediately launched,” id. at 334, then the entire apartment is
subject to a limited sweep of spaces where a person may be
found.
Thomas also argues that because he was apprehended
immediately inside the entrance to his apartment, the protective
sweep was unnecessary to complete his arrest; he could have
been moved outside forthwith. The sweep was necessary to
complete the arrest safely, however, because in fact Thomas and
the officers had moved into the living room before the officers
had him under their control and formally placed him under
arrest. The officers therefore had to depart through the hallway,
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and they need not have done so without first taking the
precautionary measure of a limited protective sweep to avert a
potential attack from one of the rooms adjoining the hallway.
In sum, the search of Thomas’ bedroom was a lawful
“protective sweep.” Therefore, the district court properly denied
his motion to suppress the physical evidence found in Thomas’
bedroom and the statement he made to a government agent
following his arrest.
C. The Sentence
Thomas, who was sentenced prior to the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005), did
not challenge the mandatory application of the Sentencing
Guidelines to him until his case was on appeal. Therefore, we
review his sentence only for plain error. See Coles, 403 F.3d at
767.
At sentencing the district court commented that application
of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), “leads
to a harsh result, but it’s a harsh result that has been determined
by Congress and by the [G]uidelines and it’s not one that the
Court can avoid based on the facts that are before it.”
Consequently, as Thomas argues and the Government concedes,
it is unclear whether the district court would have exercised its
discretion to sentence Thomas to less than 188 months if it had
not believed itself bound by the Guidelines. As in Coles,
therefore, and as Thomas requests, we remand the record to the
district court “for the limited purpose of allowing it to determine
whether it would have imposed a different sentence, materially
more favorable to [Thomas], had it been fully aware of the post-
Booker sentencing regime.” Id. at 771.
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III. Conclusion
For the foregoing reasons, Thomas’ conviction is affirmed
and this court will retain jurisdiction while the record is
remanded to the district court pursuant to Coles.
So ordered.