RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0012p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee/Cross-Appellant, -
UNITED STATES OF AMERICA,
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Nos. 10-3762/3875
v.
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Defendant-Appellant/Cross-Appellee. -
FREDRICK D. TAYLOR,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 09-00167-001—Edmund A. Sargus, Jr., District Judge.
Argued: November 18, 2011
Decided and Filed: January 13, 2012
Before: KENNEDY, GIBBONS, and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: Nicole Lynn Rutter-Hirth, RION, RION & RION LPA Inc., Dayton, Ohio,
for Appellant. Christopher K. Barnes, ASSISTANT UNITED STATES ATTORNEY,
Cincinnati, Ohio, for Appellee. ON BRIEF: Jon Paul Rion, RION, RION & RION
LPA Inc., Dayton, Ohio, for Appellant. Robyn Jones Hahnert, ASSISTANT UNITED
STATES ATTORNEY, Columbus, Ohio, for Appellee.
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OPINION
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KETHLEDGE, Circuit Judge. Fredrick Taylor entered a conditional guilty plea
for conspiracy to distribute 1000 kilograms or more of marijuana in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), and 846, and possessing a firearm in
furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i). He now
argues that the district court should have suppressed drugs and firearms that the police
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found in his home after executing two arrest warrants there. Specifically, he disputes
that the police discovered the evidence as part of a lawful protective sweep. We disagree
and affirm.
I.
Between June and September 2008, the police surveilled 1206 Rendezvous Lane
as part of an investigation into a drug-trafficking operation. They watched people travel
between the Rendezvous house and other houses under investigation. In the curbside
trash they found marijuana paraphernalia, an empty ammunition box, and mail addressed
to two people, including Taylor. On October 2, 2008 the police executed a search
warrant at Rendezvous and found “numerous firearms.”
Several months later, the government indicted Taylor and 28 others in connection
with the drug-trafficking operation. Some of the defendants were also indicted on
firearms charges. On March 4, 2009, the police obtained arrest warrants for all 28
defendants. The police drove to the Rendezvous house because they “had an idea” that
Taylor “could have been” there. An officer knocked on the door. A woman who was
herself an arrest target answered it. Recognizing her, the officer immediately stepped
in and arrested her. He noticed a man in his early twenties sitting in the living room.
The officer asked if Taylor was in the house. Another woman came down the stairs from
the second floor and asked, “What’s going on?” The officer repeated his question.
Taylor then appeared at the top of the steps. Taylor followed orders to come downstairs
and submit to arrest. All of this occurred within one minute of the officer’s entry.
While the arrests were underway, other officers followed their “standard
procedure” and conducted a protective sweep of places in the house that were large
enough to hold a person. Some officers went upstairs to secure the bedrooms. There
they discovered a handgun and bag of marijuana on a dresser. Other officers found a
semiautomatic machine gun in a closet near the living room.
Around the same time, another officer spoke with the woman who had come
downstairs. She said that her baby was upstairs. An officer took her to retrieve the
Nos. 10-3762/3875 United States v. Taylor Page 3
child. When she returned, an officer brought her to an isolated room so that she could
nurse the baby. The woman told the officer that there was a gun in the room’s couch.
The officer searched the couch and found the gun underneath.
Officers then held Taylor and the woman arrested at the door for 30 minutes until
transportation arrived. The police also obtained a search warrant for the house, citing
the firearms found there. Acting on the warrant, the police found more drugs and drug
paraphernalia. Based on the evidence found at Rendezvous on March 4, the government
added Counts 13–15 to Taylor’s indictment. Those counts charged him with maintaining
the house to store and distribute marijuana, possession of guns in connection with drug
trafficking, and possessing a firearm as a felon. The government also sought forfeiture
of guns, ammunition, and some money found in the house.
Taylor moved to suppress evidence from the March 4 sweep, among other
searches. The district court denied the motion. Taylor then entered a plea agreement
under which the government would drop Counts 13–15 (among other counts) and Taylor
would conditionally plead guilty to several other charges, including the forfeiture counts.
The condition was that Taylor reserved his right to appeal the denial of his suppression
motion. The district court entered judgment consistent with the plea agreement. Taylor
now appeals.
II.
A.
We note at the outset that the government’s agreement to drop Charges 13–15
does not moot Taylor’s appeal. The government acknowledges that the two forfeiture
counts to which Taylor pled guilty also turn on evidence seized during the March 4
sweep. See generally United States v. Fifty-Three Thousand Eighty-Two Dollars, 985
F.2d 245, 250 (6th Cir. 1993) (“[T]he exclusionary rule applies to a forfeiture proceeding
because of its quasi-criminal nature”). Moreover, Taylor could withdraw his guilty plea
if he prevails in this appeal, since his plea agreement provides as much. Whether the
search was reasonable thus remains a live issue.
Nos. 10-3762/3875 United States v. Taylor Page 4
Taylor argues that the officers’ entry into his home to execute his arrest warrant
was unconstitutional because the police had no reason to believe that he was in the home
at the time of the search. See generally Payton v. New York, 445 U.S. 573, 602–03
(1980); United States v. Hardin, 539 F.3d 404, 421–24 (6th Cir. 2008). As an initial
matter, the police had previously found Taylor’s mail at the house. But more to the
point, the police did not barge into Taylor’s home; they knocked first, which they are
entitled to do. See El Bey v. Roop, 530 F.3d 407, 417 (6th Cir. 2008). And the person
who answered the door was also a target of the arrest warrant. At that point, the police
had reason to believe a suspect was inside the Rendezvous home—one was standing
before them—and they legally entered to arrest her. See Payton, 445 U.S. at 603. The
initial entry was therefore constitutional.
Next, Taylor argues that the sweep of his house was unconstitutional. The police
can search a home pursuant to arresting someone there if there are “articulable facts” that
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.” Maryland v. Buie,
494 U.S. 325, 334 (1990). The sweep must last no longer than necessary to “dispel the
reasonable suspicion of danger” and include only “spaces where a person may be
found.” Id. at 335–36. Here, Taylor contends the police swept the house not because
they had an articulable suspicion that a dangerous third person was present, but merely
because it was their “standard procedure.”
The police cannot justify a sweep simply by citing their standard procedure. See
United States v. Williams, 577 F.3d 878, 881 n.3 (8th Cir. 2009). But there were other
justifications here. Id. First, the officers had reason to believe there were more people
in the house. They had seen several people upon entering, and their prior surveillance
and search of the Rendezvous home suggested that it had been a hub for a drug-
trafficking organization. Second, the officers had reason to believe that the other people
were armed: The 2008 search at Rendezvous uncovered guns, and the arrest warrants
for some of Taylor’s cohorts included gun charges. These two factors—that officers
observed other individuals in the house and had reason to believe they were armed—can
Nos. 10-3762/3875 United States v. Taylor Page 5
be sufficient to justify a protective sweep. See United States v. Beasley, 199 F. App’x
418, 423 (6th Cir. 2006) (per curiam) (allowing protective sweep of defendant’s hotel
room where defendant had just been arrested in the parking lot for firearm and drug
possession and officers had observed another person watching the arrest from inside
defendant’s hotel room). Third, the police had a specific basis to believe that people
might be found in either the upstairs bedroom or the downstairs closet because they saw
other people on each floor when they entered the house. Thus, the protective sweep
permissibly included both of these areas. This fact alone distinguishes this case from
United States v. Akrawi, 920 F.2d 418, 420 (6th Cir. 1990), where we found the
protective sweep of a second floor unlawful because “agents heard no noises or voices
that indicated anyone might have been in hiding on the second floor” and “articulated
no specific basis for believing that the second floor . . . harbored any individual posing
a threat to the agents.”
Moreover, the sweep did not last longer than necessary. The officer who found
the gun and drugs upstairs did so immediately after the first arrest. And the officer who
found the machine gun in the closet testified that the closet was the “first spot” he
cleared after entering the house.
Taylor counters that, under the guise of waiting for transportation, the police
intentionally prolonged the sweep to gather additional evidence against him. But we
view the evidence in the light most favorable to the government. United States v.
Navarrow-Diaz, 420 F.3d 581, 584 (6th Cir. 2005). And here, at least two officers
testified (credibly, in the district court’s view) that they merely “h[eld] the scene” while
waiting for transportation to take Taylor away. He cites no evidence to the contrary.
The sweep was therefore justified under Buie, and thus the police lawfully obtained the
evidence on the dresser and in the closet.
That leaves the officer’s search under the couch. As noted earlier, a woman in
the home had asked to nurse her baby; for privacy, the officer suggested that she use a
back room; and the woman said there was a gun in the couch there. So the officer
looked around the couch and found a gun underneath. Although this search was not part
Nos. 10-3762/3875 United States v. Taylor Page 6
of the protective sweep, it was reasonable. Executing a warrant in a home—particularly
a home used in a narcotics conspiracy—is “the kind of transaction that may give rise to
sudden violence.” Michigan v. Summers, 452 U.S. 692, 702 (1981). And officers
executing an arrest warrant in a house are entitled to take “reasonable steps to ensure
their safety.” Buie, 494 U.S. at 334.
We think it plain that the search under the couch was such a “reasonable step[.]”
Id. The officer was about to yield control of the area around the couch to one of the
home’s occupants. The woman herself said there was a gun there. He could not allow
her potentially to take possession of the gun. It was therefore reasonable for him to
search for the gun and take possession of it himself. Hence the search was
constitutional. Cf. Michigan v. Long, 463 U.S. 1032, 1049–50 (1983) (holding that the
police can conduct a protective search of the area within a person’s grab space, even if
the person is not under arrest, if they have reasonable suspicion to believe that the person
is dangerous and can gain immediate access to a weapon); United States v. Bohannon,
225 F.3d 615, 617–18 (6th Cir. 2000) (upholding Terry frisk of person detained at home
during execution of search warrant).
B.
The government cross-appeals, arguing that the district court should have
imposed a five-year sentence, to run consecutively with Taylor’s ten-year sentence for
the marijuana conspiracy, for possessing a gun in furtherance of a drug trafficking crime
in violation of 18 U.S.C. § 924(c)(1)(A). In the government’s view, § 924(c)(1)(A)
imposes a mandatory five-year minimum for possessing a firearm in furtherance of a
drug crime so long as no other provision of law imposes a higher mandatory minimum
for the § 924(c) violation.
The Supreme Court adopted the government’s reading of the statute during the
pendency of this appeal. See Abbott v. United States, 131 S. Ct. 18 (2010). We therefore
vacate Taylor’s sentence and remand for resentencing consistent with Abbott.
Taylor’s sentence is vacated, and the case is remanded for resentencing.