United States v. Bennett

                                                                         [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



                                          2
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



                                           3
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



                                           4
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



                                           6
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



                                           7
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




                                          8
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.

                                                 9
       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.

                                              10
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.




                                        11