[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ JANUARY 21, 2009
THOMAS K. KAHN
No. 08-12352 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00317-CR-JOF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAIN BENNETT,
a.k.a. Daine Bennett,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 21, 2009)
Before ANDERSON, CARNES, and MARCUS, Circuit Judges.
PER CURIAM:
Dain Bennett appeals his conviction for possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g). FBI agents arrested Bennett
after entering his mother’s apartment to execute an arrest warrant for him. During
a protective sweep of one of the apartment’s bedrooms, which was occupied by
Bennett’s teenaged brother and a friend but not Bennett, agents located a rifle
between a mattress and box spring. Bennett contends that the entry and search
were unlawful. He challenges the district court’s denial of his motion to suppress
all evidence and statements resulting from his arrest because the agents (1) did not
have a reasonable belief that his mother’s apartment was his residence and so could
not enter it without a search warrant and (2) improperly expanded the scope of
their protective sweep outside Bennett’s “grab area.” He also argues that his later
statements to a police officer should have been excluded as the fruit of the agents’
unlawful conduct. We affirm.
Bennett contends that, because the agents did not have a search warrant, the
search of his mother’s apartment must be presumed unreasonable unless the
government can prove it was lawful. He acknowledges that a valid arrest warrant
would permit the agents to enter a dwelling they reasonably believed was his
residence when they reasonably believed he was present. Bennett argues that the
district court erred in concluding the agents reasonably believed his mother’s
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apartment was his residence, however, because his name was not on the lease and
he only stayed overnight occasionally. He asserts that while his status as an
overnight guest gave him a reasonable expectation of privacy in the apartment
sufficient to allow him standing to challenge the search, it did not make him a
resident. Bennett does not argue that the agents lacked a reasonable belief that he
would be in the apartment when they entered it.
Review of a denial of a motion to suppress is a mixed question of law and
fact. United States v. Delancy, 502 F.3d 1297, 1304 (11th Cir. 2007). We review
de novo the district court’s application of the law to the facts, including whether
government agents reasonably believed that a defendant resides at a particular
location. See United States v. Magluta, 44 F.3d 1530, 1536-37 (11th Cir. 1995).
We review factual findings only for clear error, construing all facts in the light
most favorable to the prevailing party below. Id. at 1536. Warrantless searches
and seizures inside a home are presumptively unreasonable. United States v.
Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). Nonetheless, an arrest warrant for
a suspect carries a “limited authority” to enter a suspect’s residence. Id. at 1263-64
(citing Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980)).
Agents executing an arrest warrant must have reason to believe that (1) “the
location to be searched is the suspect’s dwelling” and (2) “the suspect is within the
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dwelling.” Id. at 1263. The fact that a suspect may live somewhere else from time
to time does not categorically prevent a dwelling from being the suspect’s
residence. See id. (discussing the multiple residences of college students). The
reasonableness of the belief is evaluated based on “the facts and circumstances
within the knowledge of the law enforcement agents . . . when viewed in totality.”
Magluta, 44 F.3d at 1535.
Before they entered the apartment, the Atlanta-based agents had been told by
Ohio FBI agents that Bennett was living with his mother. An investigation by the
Atlanta agents conducted shortly before the arrest revealed that Bennett had
recently delivered the rent for the apartment to the building’s landlord, that the
landlord had spoken to Bennett when he answered the apartment’s door during her
follow-up on a noise complaint, and that Bennett’s mother had told the landlord
that Bennett was “in and out” of her apartment because the two were starting a
cleaning business together. Although Bennett argues that some of this information
is untrue, the magistrate judge determined that it was correct after assessing the
credibility of the witnesses. This finding is not clear error. Based on these facts,
we cannot say that the agents’ belief that Bennett resided in the apartment was
unreasonable under the totality of the circumstances.
Bennett next contends that the under-mattress search was conducted to
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locate weapons and not people, despite the fact that a protective sweep authorized
by Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093 (1990), is limited to a cursory
inspection of places where a person might be hiding. He argues that because the
weapon discovered under the back bedroom’s mattress was not within his grab area
when he was arrested in the front bedroom, it was not admissible as the product of
a search incident to a lawful arrest. Thus, Bennett asserts, the search was justified
only if the agents had a particularized suspicion that the boys who were detained in
the back bedroom were dangerous. He notes that agents cannot infer that third
parties are dangerous simply because the arrested suspect or the crime charged is
dangerous. He asserts that agents had no reason to think that the boys in the back
bedroom posed a threat.
Even if the boys were dangerous, Bennett argues that they were under the
agents’ control and were not a potential threat at the time of the mattress search.
Bennett points out that the rifle discovered under the mattress was never within
their grab area because the boys were handcuffed on the floor, and he asserts that
agents cannot manipulate the locations of suspects so that the areas they wish to
search move into the grab area. Bennett claims his mother never consented to a
search of any part of her apartment, or if she did, her consent was tainted by the
unlawful conduct of the agents.
5
Agents are sometimes permitted to conduct a quick and limited search of a
location incident to an arrest, but that protective sweep is limited “to a cursory
inspection of those places in which a person might be hiding.” Delancy, 502 F.3d
at 1306 (internal quotation marks omitted). A protective sweep is only justified
when there is reasonable suspicion that the area to be swept harbors an individual
dangerous to the police. Id. at 1307. Previously we have declined to address the
precise scope of a search permitted as part of a protective sweep, though we have
suggested that a search under the mattress of a bed may be beyond this scope
because it is unlikely a person could hide there. See id. at 1307, 1313 n.10 (noting,
after an officer testified that he checked under a mattress to determine if anyone
was hiding there, that the court had “a hard time seeing how lifting the mattress
[from a bed with a box spring] is consistent with a search ‘narrowly confined to a
cursory inspection of those places in which a person might be hiding’” (citation
omitted)).
Law enforcement agents are also permitted to search for weapons or
evidence incident to a suspect’s lawful arrest, though the scope of that search is
limited to the grab area within the suspect’s immediate reach. United States v.
Ricks, 817 F.2d 692, 696 (11th Cir. 1987) (citing Chimel v. California, 395 U.S.
752, 763, 89 S. Ct. 2034, 2040 (1969)). Agents may search for weapons within
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range of a person’s “immediate grasp” even when they are not in the process of
conducting a lawful arrest, but only based on reasonable suspicion that the person
poses a danger to the agent. See Michigan v. Long, 463 U.S. 1032, 1049-52, 103
S. Ct. 3469, 3480-83 (1983) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868
(1968), to justify an officer’s protective search of areas over which the suspect
would have had immediate control and which could contain a weapon after the
officer observed a large knife in the car that the suspect was about to reenter).
On the morning of Bennett’s arrest, at least seven agents entered his
mother’s apartment looking for him. The FBI sent that many agents because the
crime underlying one of the arrest warrants—aggravated assault with a gun—
indicated that Bennett might be armed. The agents who conducted the protective
sweep of the back bedroom expected to find someone dangerous hiding there:
Bennett. Thus their initial sweep of the room for people, during which they found
the two teenaged boys, was justified. See Delancy, 502 F.3d at 1306-07.
Whether the later search under the mattress was lawful, however, is a more
difficult question. The agent who lifted the mattress admitted that he was looking
for hidden weapons rather than hidden people, which is consistent with our earlier
suggestion that it is hard to imagine a person could hide there. See id. at 1313
n.10. That search is justified, then, only if it is limited to the immediate grasp area
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of a person who the agent reasonably suspects poses a danger to his safety. See
Long, 463 U.S. at 1049-52, 103 S. Ct. at 3480-83. Given the size of the boys and
the situation in which the agents encountered them, we cannot say the agent was
unreasonable in suspecting that the boys were potentially dangerous.
The record shows that although the boys were young teenagers, they looked
fairly grown up. They stood nearly six feet tall and had some facial hair. When
agents discovered them, the agents did not yet know that Bennett had been found
and arrested in the front bedroom. Because the boys had not been identified at the
time of the mattress search, the searching agent was unsure if either of the boys
was Bennett. That one of the boys could have been the suspect, who was known to
be dangerous, supports the agent’s decision to search their grab area. Whether the
agent’s search was so limited is a closer question.
After ordering the boys out of bed onto the floor and cuffing their hands
behind their backs, agents decided to return the boys to the bed to question them.
To secure the area before the move, one agent shook the sheets and pillows and
then lifted the mattress. He uncovered a rifle between the mattress and box spring,
about a foot from the edge of the bed. When the agent decided to sit the boys on
the bed for questioning, he was within his authority to search those areas of the bed
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that came within their grab area.1 Although it may have been difficult to do while
handcuffed, it is not impossible that the boys could have reached under the
mattress for a weapon. See, e.g., Roper, 681 F.2d at 1357-59 (upholding search
where arrestee was handcuffed in motel hallway and escorted inside room by
federal agents prior to search of unlocked metal briefcase); United States v. Queen,
847 F.2d 346, 349, 353-54 (7th Cir. 1988) (upholding search where arrestee was
handcuffed behind his back and guarded by two armed officers before search of
closet three feet away). A suspect has a leg up on agents entering an unfamiliar
location because he knows where hidden weapons can be found, and that
advantage could aid even a restrained person in reaching a weapon before agents
can react.
1
We encountered a similar situation in Delancy, in which the defendant challenged as
overbroad a weapons search of the couch where he was moved for interrogation, but other
aspects of that case kept us from reaching the issue. See 502 F.3d at 1307. Delancy argued that
the officer could have questioned him where he was being held initially rather than moving him
to the couch, which made the search of the couch impermissible. Id. Bennett makes a similar
argument here. Indeed, officers cannot move detained people purely to bring an area they wish
to search into that person’s grab area. See, e.g., United States v. Roper, 681 F.2d 1354, 1358 n.4
(11th Cir. 1982).
Where the move is not pretextual, however, courts addressing the issue have found
searches in the grab area of the new location to be lawful. Compare United States v. Hernandez,
941 F.2d 133, 137-38 (2d Cir. 1991) (upholding a search in which an officer ran his hand
between a mattress and box spring because he intended to move the handcuffed person to the bed
for interrogation), with United States v. Blue, 78 F.2d 56, 59-60 (2d Cir. 1996) (rejecting a
search in which an officer, who had no intention of moving the handcuffed suspect to the bed,
lifted up a mattress). Here, the magistrate judge found that the agent intended to move the boys
to the bed to question them and not simply to bring the bed within their grab area. That finding
is not clearly erroneous, so the agent’s decision to relocate the boys does not affect the validity
of the search.
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We have never addressed whether an agent sweeping a detained person’s
grab area may actually lift a mattress to check for weapons, though we have noted
that reaching beneath a mattress is permissible when an agent does so as a safety
precaution. Compare United States v. Quigley, 631 F.2d 415, 417-19 (5th Cir.
1980) (upholding under-mattress search where conducted as a precaution for
officers’ safety), with United States v. Cueto, 611 F.2d 1056, 1062 (5th Cir.
1980)(rejecting under-mattress search where conducted incident to arrest rather
than to ensure officers’ safety).2 But while our decision here would be easier had
the agent limited his search to running his hand between the mattress and box
spring as the officers did in Quigley and Hernandez, we do not think law
enforcement should be required to endanger themselves by blindly sticking their
hands into unknown and unseen spaces. Nor do we think only those agents willing
to put their hands into concealed areas—which could contain needles, knives, or
worse—deserve to be protected from weapons in a suspect’s grab area. If there is
reason to search the edge of a mattress by touch, there is reason enough to lift it up.
Because the agent had a reasonable belief that the boys could be dangerous
and his reason for moving them to the bed was legitimate, his sweep of the boys’
2
In our en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981), we adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
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grab areas was properly limited. The under-mattress search was not unlawful. As
a result, we do not need to decide whether Bennett’s mother’s consent was
tainted—or given at all. Further, because the agents’ conduct was not unlawful,
Bennett’s challenged statements were not the fruit of unlawful conduct. The
weapon and statements were properly admitted into evidence, so the district court’s
denial of Bennett’s suppression motion is AFFIRMED.
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