United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 1997 Decided September 4, 1998
No. 96-3167
In re: Sealed Case 96-3167
Appeal from the United States District Court
for the District of Columbia
(No. 94cr00080-01)
Santha Sonenberg, Assistant Federal Public Defender, ar-
gued the cause for appellant, with whom A.J. Kramer, Feder-
al Public Defender, was on the briefs.
Mary T. O'Connor, Assistant U.S. Attorney, argued the
cause for appellee. Mary Lou Leary, U.S. Attorney, John R.
Fisher, Steven J. McCool, Steven D. Mellin, and Elizabeth H.
Danello, Assistant U.S. Attorneys, were on the brief.
Before: Silberman, Randolph and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: The defendant in this case was
charged with six related offenses, including unlawful posses-
sion with intent to distribute cocaine base, and using or
carrying a firearm during and in relation to a drug-trafficking
offense. After losing a motion to suppress evidence seized
from his house, the defendant entered a conditional plea of
guilty to the cocaine and firearm charges. Based on the
defendant's substantial assistance to law enforcement, the
government filed a motion for a downward sentencing depar-
ture, below the otherwise applicable statutory mandatory
minimums and sentencing guidelines ranges. The district
court granted the motion and sentenced the defendant to two
concurrent five-year terms of probation.
On appeal, the defendant contends the evidence obtained
from his house should have been suppressed because it
resulted from a warrantless entry that was not justified by
either the "hot pursuit" or "exigent circumstances" exception
to the warrant requirement, and because the subsequent
search of two bedrooms was not justified as either a "search
incident to arrest" or a "protective sweep" of the premises.
The defendant further contends that the district court should
have vacated his conviction on the firearm charge because of
the Supreme Court's intervening decision in Bailey v. United
States, 516 U.S. 137 (1995), which held that only firearms that
are "actively employed" satisfy the "using" prong of the
"using or carrying" a firearm offense.
We reject both contentions and affirm the defendant's
convictions.
I
In the early evening of February 22, 1994, Metropolitan
Police Department officers William Riddle and David Wilber
were driving in an unmarked police car through a residential
neighborhood in northeast Washington, D.C. Although it was
dark outside, the street was well-lit with high-intensity street-
lights. The officers observed the defendant running or
"walking quickly" down the street. Appellant's Appendix
("App.") at 47. Neither knew the defendant, and neither
knew where he lived. They also did not know whether he
was armed.
Proceeding in their car, the two officers followed the defen-
dant until he came to a house. Neither officer knew who
lived in the house. They watched as the defendant ran up a
path leading to the front door, opened the outer screen door,
and "struck the wooden door ... with his shoulder in such a
force that ... it appeared ... he was forcing the door open."
Id. at 41. The officers stopped their car and approached the
house to investigate. Officer Riddle went to the front, while
Officer Wilber went to the back.
Riddle saw that the front door was damaged and that there
was "a break in the door around the lock area, which further
led [him] to believe that the house was being burglarized."
Id. at 42. In fact, "the wood around that lock [was] broke[n]
completely off the door." Id. at 46. He also noticed there
were no lights on in the downstairs area of the house, despite
the fact that the defendant had just entered and it was dark
inside. Riddle loudly and repeatedly announced that he was
a police officer, but received no response. After again an-
nouncing his presence, Riddle tried to push on the front door.
Someone immediately pushed back from the other side with-
out saying anything. This pushing back and forth lasted
approximately five to ten seconds, after which the pushing on
the other side stopped and Riddle could hear footsteps away
from the door. Based on what he had seen, Officer Riddle
"believed that someone was burglarizing the house with the
intent to either steal an item or injure someone within the
house." Id. at 43.
After again identifying himself as a police officer, Riddle
entered the house. Inside, Riddle saw the defendant running
up a flight of steps. The officer chased the defendant up the
stairs and into a large, darkened bedroom. Once there,
Officer Riddle saw the defendant "standing sideways" to the
door, and facing "an extremely dark corner of the bedroom."
Id. at 49. Repeatedly calling out his identity as a police
officer but receiving no answer, Officer Riddle pointed his
weapon at the defendant and instructed him to show his
hands. Before ultimately complying, the defendant's "hands
came away from his body around his waist area, went into a
dark corner of the bedroom, then came back toward the
middle of his body, and at that point he showed [Riddle] his
hands." Id. at 49-50. Amidst his shouted instructions, Rid-
dle did not hear anything hit the floor.
Officer Riddle then led the defendant into the hallway,
patted him down for weapons, took him downstairs to the
first floor, and handed him off to other officers who had just
arrived. The defendant was not handcuffed. Riddle immedi-
ately returned upstairs to the large bedroom. Unable to turn
the light on, Riddle used his flashlight. In the darkened
corner, "where [defendant] was standing next to, and then his
arms and hands had went into," Riddle discovered "laying in
a chair, a plastic bag, which appeared to have busted open, or
come open in some manner, and several large white rocks,"
id. at 51, later identified as crack cocaine. On the floor
beside the chair was a semiautomatic handgun. The gun was
lying "on top of a pair of shoes, and I believe a handbag, or
some type of soft object." Id. at 63.
Upon finding this evidence, Riddle went directly back
downstairs and handcuffed the defendant. Thereafter, Riddle
and other officers "made a cursory exam of the house ... to
look for any other subjects that might have been in the house,
as in somebody that lived there, or a small child that might
have been scared by all the ruckus, in a closet or hiding, for
any other victims that might have been in the house." Id. at
55-56. As he entered the small bedroom on the second floor,
adjacent to the room in which he had apprehended defendant,
Riddle saw a clear plastic bag containing white rocks sitting
on a television stand. On the same stand was a triple-beam
scale. Like the others, these white rocks were later identi-
fied as crack cocaine, and Riddle testified that the scale was
of a kind "commonly used by narcotics distributors for the
purpose of the weighing in and out of narcotics." Id. at 56-
57. The officers also recovered from the defendant's person a
pager, which later investigation disclosed had received over
800 calls that month.
After completing the search, and while filling out arrest
paperwork, Riddle asked the defendant his address. The
defendant gave an address different than that of the house in
which he was arrested. The police did not learn until later
that the defendant actually lived in that house.
The defendant moved to suppress the evidence seized from
his house. The district court first found that the police had
probable cause to arrest the defendant for burglary, based on
the fact that the defendant appeared to have broken open the
door, that the defendant had not responded when Officer
Riddle announced he was a police officer, and that he had
pushed back on the door when Riddle attempted to enter.
Id. at 179. The court also concluded that the warrantless
entry into the defendant's house was justified under the "hot
pursuit" exception to the warrant requirement suggested by
the Supreme Court in Warden v. Hayden, 387 U.S. 294
(1967). Accordingly, the district court found it was "unneces-
sary" to consider "whether warrantless entry also was justi-
fied under exigent circumstances," pursuant to Dorman v.
United States, 435 F.2d 385 (D.C. Cir. 1970). See App. at
180-81.
The district court further held that Riddle "had a reason-
able basis for pursuing the defendant up the stairs and into
the large bedroom," and that the items recovered from that
large bedroom were lawfully "seized incident to the arrest."
Id. at 180. Finally, the court held that the items found in the
other bedroom were in plain view and seized as a part of a
valid "protect[ive] sweep" under Maryland v. Buie, 494 U.S.
325 (1990). Accordingly, the district court denied the defen-
dant's motion to suppress.1
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1 The defendant also moved to suppress a post-arrest statement
to the police, in which he admitted throwing down the drugs and the
gun, both of which he had obtained from a crack dealer for whom he
sold on the street. App. at 80, 84-85. Because the officer who
advised the defendant of his rights at the time of his arrest could
not remember how the defendant responded to her warnings, the
government advised the court that it would not use the defendant's
statement in its case-in-chief. Id. at 138. The court therefore
After the denial of his motion to suppress, the defendant
entered a conditional plea of guilty to the cocaine and firearm
charge. Following the Supreme Court's decision in Bailey,
and before his sentencing, the defendant moved to vacate his
conviction on the firearm charge. The district court denied
the motion, holding that the defendant had admitted that he
used "and carried" the firearm, and that this was sufficient
because Bailey had not changed the law relating to the
"carried" prong of that offense.
II
In order to determine whether the evidence in this case
was lawfully seized, we must first consider whether the
warrantless entry and arrest in the defendant's home were
valid, and then consider whether the subsequent warrantless
searches were proper. We consider the former issue in this
Part, and the latter in Part III below.
"It is axiomatic that the physical entry of the home is the
chief evil against which the wording of the Fourth Amend-
ment is directed." Welsh v. Wisconsin, 466 U.S. 740, 748
(1984) (internal quotation and citation omitted). For that
reason, "a search or seizure carried out on a suspect's premis-
es without a warrant is per se unreasonable, unless the police
can show ... the presence of 'exigent circumstances.' " Cool-
idge v. New Hampshire, 403 U.S. 443, 474-75 (1971). Like-
wise, "warrantless felony arrests in the home are prohibited
by the Fourth Amendment, absent probable cause and exi-
gent circumstances." Welsh, 466 U.S. at 749; see also Pay-
ton v. New York, 445 U.S. 573, 590 (1979).
Here, the police did not have a warrant. Thus, for the
entry of the defendant's house to be held lawful, the govern-
ment must meet two distinct burdens: it must demonstrate
that the police had probable cause to believe a crime was
being committed, and that there were exigent circumstances
__________
denied the motion to suppress the statement as moot, and did not
rely on it in deciding the defendant's various other motions. Id. at
139, 178.
justifying the police's failure to procure a warrant. See
United States v. Dawkins, 17 F.3d 399, 403 (D.C. Cir. 1994).
We consider first whether there was probable cause, and then
whether there were exigent circumstances. We review de
novo the district court's conclusion that there was probable
cause, see Ornelas v. United States, 517 U.S. 690, 699 (1996);
United States v. Streater, 70 F.3d 1314, 1316 (D.C. Cir. 1995),
as well as its conclusion that the warrantless entry and arrest
were justified by an exception to the Fourth Amendment's
warrant requirement, see Ornelas, 517 U.S. at 699; United
States v. Timberlake, 896 F.2d 592, 595 (D.C. Cir. 1990);
United States v. Socey, 846 F.2d 1439, 1445 (D.C. Cir. 1988).2
The district court's underlying factual findings are reviewed
solely for clear error. See Ornelas, 517 U.S. at 699; United
States v. Patrick, 959 F.2d 991, 996 n.6 (D.C. Cir. 1992).
A
We conclude, as did the district court, that Officers Riddle
and Wilber had probable cause to believe the defendant was
committing a burglary. The police observed someone appear
to break open the door to an unlit house and enter it without
turning on the lights. When the police approached the door
to investigate, they discovered that the lock was indeed
broken. When Riddle identified himself as a police officer,
the person who had entered the house did not respond in any
way. And, when Riddle again identified himself as a police
officer and tested the door, the person inside pushed back for
several seconds. The officer then heard steps going away
from the door. The totality of these circumstances gave the
officer probable cause to believe a burglary was in progress.
A forced door or window is a commonly recognized element
of probable cause in a burglary case. See, e.g., United States
v. (Emil) Johnson, 9 F.3d 506, 507 (6th Cir. 1993) (broken
window); United States v. Valles-Valencia, 811 F.2d 1232,
1235-36 (9th Cir. 1987) (pried-open window); United States v.
__________
2 The same standard applies to our review in Part III of the
district court's conclusion that the warrantless searches were justi-
fied by exceptions to the warrant requirement.
Dart, 747 F.2d 263, 265 (4th Cir. 1984) (sawed-off lock and
forced-open doors); United States v. Estese, 479 F.2d 1273
(6th Cir. 1973) (pried-open door); see also United States v.
Tibolt, 72 F.3d 965, 970 (1st Cir. 1995) (unlocked rear door).
The same is true of the absence of lights, see Reardon v.
Wroan, 811 F.2d 1025, 1026 (7th Cir. 1987), and of silence in
response to an officer's calls, see Tibolt, 72 F.3d at 967;
Murdock v. Stout, 54 F.3d 1437, 1442 (9th Cir. 1995); (Emil)
Johnson, 9 F.3d at 509. The defendant's apparent flight
away from the door also added to the probable cause. See
Kolender v. Lawson, 461 U.S. 352, 366 n.4 (1983) (Brennan,
J., concurring) (noting that individual's flight in reaction to
investigatory stop by officer may "provide the necessary
information, in addition to that the officers already possess, to
constitute probable cause"); United States v. Green, 670 F.2d
1148, 1151 (D.C. Cir. 1981). Although these elements already
provided sufficient probable cause to believe a burglary was
in progress, they certainly justified the officer's next step of
testing the door. When the defendant pushed back without
any explanation, without requesting identification from the
officer, and without identifying himself as the homeowner,
Officer Riddle acquired further grounds to believe he had
discovered a burglary.
In rebuttal, the defendant argues that many of the above-
cited precedents can be distinguished because they involved
police investigating neighbors' reports of suspected burgla-
ries. But the fact that probable cause can be supplied by
third party reports of suspicious activity, does not mean the
police cannot act when they observe the suspicious activity
themselves. Quite the opposite is true.
The defendant also challenges the conclusion of probable
cause by focusing on its individual elements. He warns that
approving the search in this case would give the police carte
blanche to arrest any law-abiding citizen with the misfortune
to have a "sticky" door that requires an extra shove to open.
But probable cause here, as in every case, depends upon the
totality of the circumstances. See Dawkins, 17 F.3d at 403.
The police did not rely on their observation of the "shove"
alone. They relied on the shove, the broken door, the ab-
sence of light, the defendant's failure to respond to their
repeated inquiries, the push-back on the door, and the defen-
dant's apparent flight away from it. This confluence of
events is unlikely to occur in the usual case of a homeowner's
"sticky door."
Finally, it is irrelevant to the probable cause inquiry that
the officers later learned the defendant had entered his own
house, and that he later offered evidence that the door had
been broken for several years prior to this incident. The
officers did not know these things at the time they entered
the home; what matters is their reasonable belief that unlaw-
ful activity was in progress at the time of the entry and
arrest. See Tibolt, 72 F.3d at 971; Murdock, 54 F.3d at 1444.
Of course, had the defendant immediately identified himself
as the owner of the house, the totality of the circumstances
might have been quite different. But the fact that he failed
to do so, when the officers could reasonably expect that the
true homeowner would have, adds rather than detracts from
the calculus of probable cause.
B
Probable cause alone does not justify the warrantless entry
of a home. There must also be some exception to the
warrant requirement. See, e.g., Dawkins, 17 F.3d at 403;
United States v. McCraw, 920 F.2d 224, 228 (4th Cir. 1990).
The court below concluded that the entry was justified under
the "hot pursuit" exception suggested in Warden v. Hayden,
387 U.S. 294 (1967). On appeal, the government does not
press the "hot pursuit" exception, and instead argues that the
"exigent circumstances" exception, recognized by this court in
Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (en
banc), justifies the entry and arrest. See also United States
v. Mason, 966 F.2d 1488, 1492 (D.C. Cir. 1992). We agree
and affirm the district court's judgment on that basis, without
addressing the "hot pursuit" exception. See United States v.
Abdul-Saboor, 85 F.3d 664, 666 (D.C. Cir. 1996).
"Hot pursuit" is, of course, just one form of "exigent
circumstance." See Hayden, 387 U.S. at 298 (holding that
"under the circumstances of this case, the exigencies of the
situation made" entry without a warrant "imperative"); Dor-
man, 435 F.2d at 391. The Supreme Court also has recog-
nized that "[t]he need to protect or preserve life or avoid
serious injury is justification for what would be otherwise
illegal absent an exigency or emergency." Mincey v. Ari-
zona, 437 U.S. 385, 392 (1978) (internal citations and quota-
tions omitted); see Minnesota v. Olson, 495 U.S. 91, 100
(1990) (recognizing that warrantless entry may be justified by
"the risk of danger to the police or to other persons inside or
outside the dwelling"); Michigan v. Tyler, 436 U.S. 499, 509
(1978) (holding that a "burning building presents an exigency
of sufficient proportions to render a warrantless entry 'rea-
sonable' "); see also Mason, 966 F.2d at 1492-93; Timber-
lake, 896 F.2d at 596. The Court has also suggested that
warrantless entries are permissible to prevent the destruction
of evidence, see Minnesota v. Olson, 495 U.S. at 110; Schmer-
ber v. California, 384 U.S. 757, 770-71 (1966); see also
Dawkins, 17 F.3d at 405; Timberlake, 896 F.2d at 596, or a
suspect's escape, see Olson, 495 U.S. at 100.
Although the Supreme Court has never provided a catalog
of all such exigencies, see Welsh, 466 U.S. at 749, this court
has said that, at bottom, "[t]he test for exigent circumstances
is whether police had an 'urgent need' or 'an immediate major
crisis in the performance of duty afford[ing] neither time nor
opportunity to apply to a magistrate.' " United States v.
(James) Johnson, 802 F.2d 1459, 1461 (D.C. Cir. 1986) (quot-
ing Dorman, 435 F.2d at 391). Other circuits have taken the
same view. See, e.g., United States v. MacDonald, 916 F.2d
766, 769 (2d Cir. 1990) (en banc) ("The essential question in
determining whether exigent circumstances justified a war-
rantless entry is whether law enforcement agents were con-
fronted by an 'urgent need' to render aid or take action.")
(citing Dorman, 435 F.2d at 391).
The government bears the "heavy burden" of proving such
"urgent need." See Welsh, 466 U.S. at 749-50; Dorman, 435
F.2d at 392. Like the determination of probable cause, the
question of whether there were "exigent circumstances" is
judged according to the totality of the circumstances. See
Socey, 846 F.2d at 1446; (James) Johnson, 802 F.2d at 1462.
And like the standard for probable cause, the standard for
exigent circumstances is an objective one, focusing "on what a
reasonable, experienced police officer would believe." Tim-
berlake, 896 F.2d at 596; Socey, 846 F.2d at 1446-47.
The government's claim of exigency in this case rests on
the officers' belief that the defendant was engaged in an
ongoing burglary attempt that could have endangered the
occupants of the house if the police had paused to obtain a
warrant. At the time he pursued the defendant into the
house, Officer Riddle "believed that someone was burglarizing
the house with the intent to either steal an item or injure
someone within the house." App. at 43. As we have held
above, that belief was objectively reasonable. Numerous
other circuits have found that probable cause to believe a
burglary is in progress constitutes exigent circumstances
sufficient to permit warrantless entry. See, e.g., Tibolt, 72
F.3d at 970; Murdock, 54 F.3d at 1442; (Emil) Johnson, 9
F.3d at 509-10; Reardon, 811 F.2d at 1025, 1029-30; Dart,
747 F.2d at 267; United States v. Singer, 687 F.2d 1135, 1144
(8th Cir. 1982); Estese, 479 F.2d at 1274. We join those
circuits today.
As we have said before, "[b]reaking a dwelling house ...
creates a substantial risk of confrontation between the perpe-
trator and an occupant.... And where such a confrontation
occurs, there is a substantial risk that serious injury ... will
occur." United States v. Jackson, 113 F.3d 249, 253 (D.C.
Cir. 1997). For that reason, burglary of a house, with or
without a weapon, is considered a "crime of violence" under
provisions of the United States Code and the U.S. Sentencing
Guidelines. See 18 U.S.C. s 924(e)(2)(B) (burglary punisha-
ble by imprisonment for more than one year constitutes
"violent felony" for purposes of Armed Career Criminal Act);
U.S.S.G. s 4B1.2(a) (crime punishable by imprisonment for
more than one year, that is a "burglary of a dwelling ... or
otherwise involves conduct that presents a serious potential
risk of physical injury to another," is a "crime of violence" for
career offender Guideline). The need to prevent such a
confrontation, by intercepting the burglar before he potential-
ly confronts (or is confronted by) an occupant, is surely an
exigent circumstance.
The defendant argues that the police had no evidence he
was armed when he entered the house, and no evidence that
there were any occupants inside for him to endanger. But
since the police also had no evidence to the contrary, it was
appropriate for them to act on the basis of the kinds of risks
burglaries normally present. They did not have to wait until
they heard shots fired or an occupant scream. By that time,
the purpose of permitting immediate entry--preventing such
shots and screams--would have been lost. "Speed here was
essential," Hayden, 387 U.S. at 299, and that is the essence of
an exigent circumstance. As the Supreme Court recognized
in Hayden, "[t]he Fourth Amendment does not require police
officers to delay in the course of an investigation if to do so
would gravely endanger their lives or the lives of others." Id.
at 298-99.
III
We have concluded that the officers' entry to prevent what
appeared to be a burglary in progress was lawful. For the
same reason, the warrantless apprehension of the defendant
for that suspected burglary was lawful. We next must con-
sider the propriety of the subsequent search of the two
bedrooms. The government does not allege that the exigent
circumstances of the burglary alone validated the searches.
Instead, it focuses on two more specific exceptions to the
warrant requirement, a different one for each bedroom. We
begin with the search of the large bedroom, which the district
court upheld as a search incident to arrest, and proceed to
that of the small bedroom, which the court upheld as a
protective sweep.
A
In Chimel v. United States, the Supreme Court held that,
incident to a lawful arrest, the police may properly search the
area within the arrestee's "immediate control." 394 U.S. 752,
763 (1960). A search of that area is permissible, regardless
whether in the circumstances of a particular case it is proba-
ble that "weapons or evidence would in fact be found" there.
United States v. Robinson, 414 U.S. 218, 235 (1973); see also
United States v. Chadwick, 433 U.S. 1, 14-15 (1977); Abdul-
Saboor, 85 F.3d at 667. In this case, it is clear that the guns
and drugs Officer Riddle found in the large bedroom were
located in an area under the defendant's "immediate control."
The defendant was arrested while standing next to a chair in
the bedroom. The drugs were found on that chair, and the
gun was found beside it. App. 51-52.
The defendant contends that Chimel is inapplicable here.
"Although the larger bedroom was the room in which [he] had
been arrested," Defendant's Br. at 17,3 the defendant empha-
sizes that he was at the bottom of the stairs by the time the
bedroom was searched. By that time, the large bedroom was
no longer under his "immediate control." The critical time
for analysis, however, is the time of the arrest and not the
time of the search.
In New York v. Belton, the Supreme Court held that when
the police lawfully arrest the occupant of an automobile, they
may "as a contemporaneous incident of that arrest, search the
passenger compartment," even if the occupant has been re-
moved and is no longer in the car at the time of the search.
453 U.S. 454, 460 (1981). We have since rejected the argu-
__________
3 In his brief, the defendant took the position that he "was
arrested ... when he was stopped at gun-point by Riddle and
transported downstairs to the custody of another officer. Thus ...
even before any contraband had been found, [the defendant] was
not free to leave." Defendant's Br. at 16. At oral argument,
however, he suggested he might not actually have been arrested
until the police discovered the gun and drugs, handcuffed him, and
formally placed him under arrest on those charges, rather than on
the burglary charges the police originally contemplated. That
formal arrest did not occur until after the defendant was already at
the bottom of the stairs. The defendant was correct the first time,
however. He was arrested for Fourth Amendment purposes when
Riddle apprehended him at gun-point in the large bedroom. See
Florida v. Bostick, 111 S.Ct. 2382, 2386 (1991); United States v.
Tavolacci, 895 F.2d 1423, 1428 (D.C. Cir. 1990).
ment that Belton applies only to automobiles, and affirmed
that the area under a defendant's "immediate control" for
Chimel purposes must be examined as of the time the arrest
occurs. See United States v. Brown, 671 F.2d 585, 587 (D.C.
Cir. 1982). In Brown, we validated the search of a pouch
taken from a defendant at the time of arrest, even though the
search took place after the pouch was moved out of the reach
of defendant's control. As long as a search is "contemporane-
ous with" and an "integral part of" a lawful arrest, we held,
the police may search a container that was within reach
"when the arrest occurs, even if the officer has since seized it
and gained exclusive control over it." Id. at 587; see United
States v. Tavolacci, 895 F.2d 1423, 1429 (D.C. Cir. 1990)
(citing Brown).
Our recent decision in United States v. Abdul-Saboor
makes the same point, and is on all fours with the case at bar.
There, deputy United States marshals took the defendant into
custody in a bedroom, removed him from the room, hand-
cuffed him, and seated him in a chair approximately "four feet
outside the bedroom doorway." 85 F.3d at 666. A marshal
then returned to the bedroom and seized two weapons. After
leaving the bedroom to make necessary arrangements, the
marshal again returned to search the bedroom, this time
finding drugs and additional guns. We upheld both searches
as incident to the arrest.
Reviewing the history of Belton and Brown, we concluded
that the "determination of immediate control must be made
when the arrest occurs." Id. at 668. In so holding, we noted
that our view was in accord with that of our sister circuits.4
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4 See Abdul-Saboor, 85 F.3d at 670, citing, inter alia: Davis v.
Robbs, 794 F.2d 1129, 1130-31 (6th Cir. 1986) (arrestee handcuffed
and placed in squad car prior to seizure of rifle in house); United
States v. Cotton, 751 F.2d 1146, 1147-48 (10th Cir. 1985) (arrestees
handcuffed and apparently guarded by officer while trooper
searched vehicle); United States v. Silva, 745 F.2d 840, 847 (4th
Cir. 1984) (arrestees handcuffed and guarded by agents prior to
search of room); United States v. Palumbo, 735 F.2d 1095, 1096-97
(8th Cir. 1984) (arrestee surrounded by several officers and possibly
Indeed, we noted that making the test turn exclusively on the
time of the search "might create a perverse incentive for an
arresting officer to prolong the period during which the
arrestee is kept in an area where he could pose a danger to
the officer." Id. at 669. We emphasized, however, that a
search is incident to arrest only so long as it is an "integral
part" of the arrest process. The relevant distinction turns
upon "whether the arrest and search are so separated in time
or by intervening events that the latter cannot fairly be said
to have been incident to the former." Id. at 668. Such a
temporal separation did not occur in this case: Officer Riddle
searched the large bedroom immediately after arresting and
removing the defendant.
Notwithstanding our holding in Abdul-Saboor, the defen-
dant contends that the search here was invalid under our
opinion in United States v. Lyons, 706 F.2d 321 (D.C. Cir.
1983). In Lyons, we held that the search of a closet in the
hotel room where the defendant had been arrested, which
took place after the defendant had been handcuffed and
seated in a chair near the doorway to the room, was not a
valid search incident to arrest because it was "inconceivable
that [the defendant] could have gained access" to the closet.
706 F.2d at 330-31. We agree that there is some tension
between Lyons, which seems to focus on whether the space
searched was accessible at the time of the search, and our
earlier decision in Brown and later decision in Abdul-Saboor,
both of which focused on the time of the arrest. We need not
resolve that tension, however, to decide this case.
In Abdul-Saboor, we distinguished Lyons as a case that
added an extra requirement to the "search incident to arrest"
exception. Not only must the area searched be under the
defendant's "immediate control" at the time of the arrest, it
must also be "conceivably accessible" to the defendant at the
time of the search. Abdul-Saboor, 85 F.3d at 669-70.
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handcuffed prior to search). See also United States v. Hudson, 100
F.3d 1409, 1419 (9th Cir. 1996) (defendant handcuffed and removed
from house); United States v. Mitchell, 64 F.3d 1105, 1110 (7th Cir.
1995) (defendant handcuffed during search of briefcase).
Whether or not this added requirement is consistent with the
reasoning of Belton, Brown and Abdul-Saboor, it is satisfied
in this case. As we said in Abdul-Saboor, "showing that the
area searched was 'conceivably accessible at the time of the
search' was not meant to be difficult." Id. at 669. It was not
satisfied in Lyons, we said, because the defendant there had
briefly collapsed after his arrest and then been revived and
"immobilized," handcuffed in a chair, and surrounded by six
officers. Under those circumstances, it was not "conceivable"
that the defendant could have struggled free and lunged into
the closet--which was "several yards away" and to which he
had never previously sought access. Abdul-Saboor, 85 F.3d
at 669.
In Abdul-Saboor, by contrast we found the "conceivably
accessible" test satisfied. Although like Lyons, Abdul-Sab-
oor had been handcuffed, he had not otherwise been "immobi-
lized" or "physically restrained." In addition, he "did not
suffer any infirmity that would impede his physical ability,"
compared to Lyons who had collapsed after his arrest.
Moreover, unlike Lyons, Abdul-Saboor "had specifically re-
quested entry to the area searched"--he had asked the
marshal to let him enter the bedroom to dress before being
taken away. And also unlike Lyons, Abdul-Saboor had
"demonstrated both the capacity and the desire to avoid
arrest"--upon entering the bedroom, he had tried to pick up
and hide a handgun. Finally, the hotel room in which Lyons
was arrested had been rented by the police, while the room in
which Abdul-Saboor was arrested was unfamiliar to the
officers and contained a weapon known to defendant. On the
basis of these circumstances, we concluded that, unlike Lyons,
it was "conceivable" that Abdul-Saboor might attempt to run
back into the bedroom after his removal, even though such an
attempt might not be "rational" or likely to succeed. 85 F.3d
at 670.
The case at bar satisfies the "conceivably accessible" test
even more readily than did Abdul-Saboor. Here, the defen-
dant was not handcuffed or otherwise immobilized at the time
of the search of the large bedroom. He did not suffer any
physical infirmity; to the contrary, the officers had just
watched him move through the neighborhood at a rapid pace.
Like Abdul-Saboor, the defendant here both had specifically
sought access to the room being searched and had demon-
strated the capacity and desire to avoid arrest: he had fled
from Officer Riddle into the very bedroom at issue. And also
like Abdul-Saboor, the defendant here had a motive for going
back to the room--he knew there was a weapon there.
Finally, although the defendant was at the bottom of the
stairs at the time of the search, only minutes before he had
raced up those very stairs in an effort to evade Riddle.
Under these circumstances, the bedroom here was no less
"conceivably accessible" to the defendant than was the bed-
room in Abdul-Saboor.
B
We now proceed to the search of the small bedroom, which
the district court justified not as a search incident to arrest
under Chimel, but as a lawful "protective sweep" under
Maryland v. Buie, 494 U.S. 325 (1990). See App. at 180. We
agree with the district court's conclusion and affirm. We
note, moreover, that this rationale provides a second lawful
justification for the search of the large bedroom considered
above.
In Buie, the Supreme Court held that, incident to an
arrest, the police may conduct a "protective sweep, that is, a
quick and limited search of premises ... to protect the safety
of officers or others." 494 U.S. at 327. Such a search must
be "narrowly confined to a cursory visual inspection of those
places in which a person might be hiding." When limited to
looking "in closets and other spaces immediately adjoining
the place of arrest from which an attack could be immediately
launched," it may be undertaken "as a precautionary matter
and without probable cause or reasonable suspicion." Id. at
334. A sweep of more remote areas may also be permitted,
but for 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 to be swept harbors an individual posing a danger to
those on the arrest scene." Id. Because the government
does not contend that the search of the small bedroom was
supported by articulable suspicion, Gov't Br. at 27-28 n.6, we
consider only the first kind of Buie sweep.
As with a search incident to arrest, we analyze a protective
sweep from the vantage point of the time of the arrest and
ask whether the place searched was one "immediately adjoin-
ing the place of arrest from which an attack could be immedi-
ately launched." Buie, 494 U.S. at 334; see also Abdul-
Saboor, 85 F.3d at 669. The district court found that the
small bedroom "was only a few feet from the larger bedroom
door and only a few feet from the top of the stairs," and "was
a space from which an attack could be immediately launched."
App. at 338. We see no reason to disturb that finding. See
United States v. Lauter, 57 F.3d 212, 213, 216-17 (2d Cir.
1995) (approving protective sweep of second room "immedi-
ately adjoining" room in which defendant had been arrested).
The defendant argues that our decision in United States v.
Ford, 56 F.3d 265 (D.C. Cir. 1995), demonstrates that Buie 's
first prong does not extend to the small bedroom at issue
here. To the contrary, Ford supports application of Buie to
this case. In Ford, we upheld, under Buie' s first prong, a
protective sweep of a bedroom adjoining a hallway in which
the defendant was arrested. We also upheld the seizure of a
gun clip found in plain view in that bedroom. See 56 F.3d at
270. What we declined to validate in Ford were seizures of
additional items found under a mattress and behind window
shades, "because these were not spaces from which an attack
could be immediately launched." Id. at 266. Those kinds of
seizures are not at issue here. In this case, Officer Riddle
discovered the drugs and triple-beam scale during a "cursory
visual inspection" of the small bedroom, see Buie, 494 U.S. at
334. Indeed, he discovered them immediately upon entering
the room, in what the district court found to be "plain view."
App. at 180. Accordingly, the search of the small bedroom
was lawful under the first prong of Buie.5
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5 In Ford, we distinguished Buie itself as a case where "the
defendant ... was arrested outside the basement and the search
Finally, we should note that in this case, the search of the
small bedroom might be justified by a second rationale: not
only to protect the officers, but also to protect the home's
residents. As the officers saw the situation, the defendant
was a burglar who had just charged up the stairs and into the
bedroom of someone else's house. In those circumstances, a
sweep to discover a hidden accomplice might be justified to
protect unsuspecting residents who return after the police
depart. It might also be justified to determine whether the
residents or their children were currently hiding--either in-
jured or cowering in fear. See App. at 55-56 ("We made a
cursory exam of the house ... to look for any subjects that
might have been in the house, as in somebody that lived
there, or a small child that might have been scared by all the
ruckus, in a closet or hiding, for any other victims that might
have been in the house."); cf. Mincey, 437 U.S. at 392
("[W]hen the police come upon the scene of a homicide they
may make a prompt warrantless search of the area to see if
there are other victims or if a killer is still on the premises.").
We need not determine whether the scope of a search sup-
ported by such a rationale would be any broader than that
approved in Buie, as the first prong of Buie validates the
search the officers conducted here.
IV
The defendant's final contention is that the district court
should have vacated his conviction to the charge of violating
18 U.S.C. s 924(c)(1), which applies to anyone who, during
and in relation to a drug trafficking crime, "uses or carries" a
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was conducted in the basement, which presumably contained spaces
which were not immediately adjoining the place of Buie's arrest."
56 F.3d at 269 n.3. For that reason, the Buie basement had to be
evaluated under Buie' s second prong, which requires "articulable
suspicion." Unlike the Buie basement, however, neither the Ford
bedroom nor the bedroom here were large enough to "contain
spaces which were not immediately adjoining the place of" arrest.
Moreover, the evidence in this case was seized from a television
stand that was visible the moment officer Riddle entered the
bedroom.
firearm. In Bailey v. United States, 516 U.S. 137 (1995),
decided after the defendant entered his plea but before he
was sentenced, the Supreme Court held that to establish
"use" under s 924(c)(1), the government must show "active
employment of the firearm." Id. at 144. After Bailey, "[a]
defendant cannot be charged under s 924(c)(1) merely for
storing a weapon near drugs." Id. at 149. Both parties
agree that there was no evidence of "active employment" of a
weapon in this case, and hence that the defendant's conviction
cannot be sustained on the "use" prong of s 924(c)(1).
But s 924(c)(1) bars not only using, but also carrying a
firearm during and in relation to a drug trafficking crime.6
And while Bailey interpreted the "use" prong narrowly, it
recognized that evidence that fails to show "use" may none-
theless support a conviction for "carrying." See 516 U.S. at
146; see also United States v. Cruz-Rojas, 101 F.3d 283, 284
(2d Cir. 1996). Indeed, last Term the Court interpreted the
"carry" prong broadly, relying on it to uphold a guilty plea
that could not satisfy the "use" prong. See Muscarello v.
United States, 118 S. Ct. 1911 (1998).
In Muscarello, the Fifth Circuit considered a defendant's
pre-Bailey plea to "using and carrying," which had been
based on the fact that the gun in question was found inside
the locked glove compartment of the car Muscarello had been
driving. Although the government conceded that after Bai-
ley these facts could no longer support a conviction for "use,"
the Fifth Circuit sustained the plea on the alternative basis of
"carrying." See United States v. Muscarello, 106 F.3d 636,
638 (5th Cir. 1997). The Supreme Court affirmed. The
Court held that Congress intended "carry" to convey its
ordinary meaning, which it said includes both carrying a
weapon directly on the person, and carrying one in a car. See
Muscarello, 118 S. Ct. at 1916-19.
In this case, as in Muscarello, the defendant pled guilty to
using and carrying the weapon. That plea was contained in a
written plea agreement, see Plea Letter at p 1, repeated at
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6 The defendant does not contend there was any infirmity in
the proof of the "during and in relation to" element of the offense.
the plea proceeding,7 and confirmed by the district court upon
its review of the record after the defendant filed his motion,
see App. at 329.
The defendant's plea alone does not, of course, end the
matter. Federal Rule of Criminal Procedure 11(f) provides
that "notwithstanding" a plea, "the court should not enter a
judgment upon such plea without making such inquiry as
shall satisfy it that there is a factual basis for the plea." Fed.
R. Crim. P. 11(f); see also Cruz-Rojas, 101 F.3d at 285. To
demonstrate a satisfactory factual basis, the government
must have "evidence from which a reasonable juror could
conclude that the defendant was guilty as charged." United
States v. Ford, 993 F.2d 249, 253 (D.C. Cir. 1993). As long as
there is a satisfactory factual basis to support a "carrying"
charge, however, the defendant's conviction may be sustained
even though it would fail on the "use" prong alone. See
Muscarello, 118 S. Ct. at 1914; United States v. Harlan, 130
F.3d 1152, 1153 (5th Cir. 1997); United States v. Mitchell, 104
F.3d 649, 652-53 (4th Cir. 1997).
The defendant's unadorned admission of guilt--while it
may add evidentiary support--is not alone sufficient to pro-
vide a factual basis for the plea. See Stanback v. United
States, 113 F.3d 651, 657 (7th Cir. 1997) ("holding that merely
conced[ing] culpability in the language that the statute uses
without acknowledging any concrete facts that fall within the
meaning of carrying" is insufficient to sustain plea); Cruz-
Rojas, 101 F.3d at 286. We also agree with the defendant
that the government's statement in its proffer to the district
court, that it would be able to prove defendant "did indeed
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7 The district court advised the defendant that he would be
pleading guilty to the following charge: "that you did unlawfully
and knowingly use and carry a firearm, that is, a Haskel .45 pistol,
during and in relation to the offense of unlawful possession with
intent to distribute cocaine base, a drug trafficking crime." App. at
238 (emphasis added). The court further explained: "So that's
what you'd actually be pleading guilty to, ... that you used and
carried this .45 caliber Haskel pistol." Id. (emphasis added). The
court then asked, "Do you understand that's what the charges are?"
Defendant replied: "Yes. Yes, sir." Id.
possess the .45 caliber handgun," App. at 245-46 (emphasis
added), is insufficient to establish "use" after Bailey. See,
e.g., Lee v. United States, 113 F.3d 73, 76 (7th Cir. 1997);
United States v. Smart, 98 F.3d 1379, 1393 (D.C. Cir. 1996).
Moreover, because "possess" may encompass various attenu-
ated forms of constructive possession, it is also insufficient to
satisfy the "carry" prong of s 924(c). See United States v.
Sheppard, __ F.3d __, 1998 WL 390361 (6th Cir. 1998). See
generally Young v. United States, 124 F.3d 794, 801 (7th Cir.
1997).
But the defendant's admission and the statement regarding
possession were not the only evidence the government of-
fered. The proffer also recited the facts of the defendant's
arrest: specifically, that when directed to show his hands, the
defendant instead moved his hands away from his body and
towards the corner, before finally drawing them back to show
to the officer. Moments later, Officer Riddle found the gun
and drugs in the place towards which the defendant had
gestured. The government argues that this evidence sup-
ports an "inference that [the defendant] tossed away the gun
and drugs when cornered by the officer," and had "carried"
them up until that point--an inference that would satisfy the
definition of "carry" announced in Muscarello. Gov't Br. at
33. We agree. See Young, 124 F.3d at 801 (stating that
district court may rely on inferences in finding factual basis
under Rule 11(f)); United States v. Graves, 106 F.3d 342, 345
(10th Cir. 1997) (same); cf. United States v. Dunn, 846 F.2d
761, 764 (D.C. Cir. 1988) (holding that a reasonable jury could
find defendant possessed gun and drugs where officer saw
defendant make "pitching motion" toward couch and then
found gun on couch and drugs behind it).
In response to the government, it might be argued that,
although it is possible the defendant tossed the gun toward
the chair, it is equally possible that the gun was lying there
when he entered the bedroom. Had the gun been found
somewhere else in the room, this argument might be persua-
sive. But instead, the gun was found in the precise spot
toward which the defendant gestured when he was initially
apprehended. Moreover, since the gun was found lying atop
a soft object, the fact that the officer did not hear it fall does
not weaken the inference that the defendant tossed it there.
To the contrary, it is perfectly consistent with that inference.
We do not dispute that this is a close case. But we
conclude that a reasonable juror could have found that the
defendant carried the gun up the stairs and then tossed it
toward the chair when the officer ordered him to show his
hands. And those facts are sufficient, under Muscarello, to
sustain a plea to carrying a firearm in violation of 18 U.S.C.
s 924(c).
For the foregoing reasons, the defendant's convictions are
affirmed.