Commonwealth of Virginia v. Adib Ameer Marzuq ( 2000 )


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  •                     COURT OF APPEALS OF VIRGINIA
    Present: Judges Benton, Bray and Bumgardner
    Argued at Salem, Virginia
    COMMONWEALTH OF VIRGINIA
    MEMORANDUM OPINION * BY
    v.   Record No. 0183-00-2                   JUDGE RICHARD S. BRAY
    JUNE 29, 2000
    ADIB AMEER MARZUQ
    FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
    Robert W. Duling, Judge
    Marla Graff Decker, Assistant Attorney
    General (Mark L. Earley, Attorney General, on
    brief), for appellant.
    Donald A. Denton for appellee.
    Indicted for possession of cocaine with intent to distribute,
    Adib Ameer Marzuq (defendant) moved the trial court to suppress
    inculpatory evidence discovered by police during a "sweep search"
    of his residence.   Following a hearing on defendant's motion, the
    court concluded the circumstances did not give rise to safety
    concerns sufficient to justify the search and suppressed the
    related evidence.   The Commonwealth appeals pursuant to Code
    § 19.2-398, arguing that the offending drugs, together with other
    evidence, were properly seized during a "protective sweep."     We
    agree and reverse the trial court.
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    I.
    "It is well established that on appeal the burden is on the
    appellant[, the Commonwealth in this instance,] to show,
    considering the evidence in a light most favorable to [defendant],
    that the [granting] of a motion to suppress constitutes reversible
    error."   Commonwealth v. Tart, 
    17 Va. App. 384
    , 390-91, 
    437 S.E.2d 219
    , 223 (1993).   "Questions of reasonable suspicion and probable
    cause to make a warrantless search are subject to de novo review
    on appeal.   'In performing such analysis, we are bound by the
    trial court's findings of historical fact unless "plainly wrong"
    or without evidence to support them[.]'"       Archer v. Commonwealth,
    
    26 Va. App. 1
    , 8, 
    492 S.E.2d 826
    , 830 (1997) (citations omitted).
    At approximately 11:30 a.m. on October 10, 1999, Richmond
    Police Officer Danny Rhodenizer, while investigating a "stolen dog
    call," accompanied two "complaining victims" to defendant's
    residence.   Aware that "persons at [the] residence" were the
    subject of "active warrants," for unspecified offenses allegedly
    committed in both Richmond and Henrico County, Rhodenizer knocked
    at the "front door" of the home.    "A young lady," later identified
    as defendant's aunt, appeared, and Rhodenizer asked "for . . .
    somebody that owned . . . a dog."       In response, the aunt woke
    defendant and his girlfriend, Rita Raines, then asleep in the "far
    [rear] right bedroom," 1 and advised defendant, owner of a boxer
    1
    A floor plan of the residence indicated that the front
    door opened into a dining and living room area, directly
    - 2-
    dog, of the inquiry.   Defendant and Raines proceeded to the door,
    spoke with Rhodenizer and company and, at Rhodenizer's request,
    defendant retrieved the dog from the bedroom.   The "complaining
    victims" confirmed that it was not the missing animal, apologized
    for any inconvenience and left the residence.
    While defendant was returning the dog to the bedroom, a radio
    dispatch provided Rhodenizer with "several names for the active
    warrants," including two men, one identified as Adib Marzuq.
    Rhodenizer again "tapped on the screen door" and inquired of
    Raines whether Adib Marzuq was "at the residence."   Raines once
    more summoned defendant from the rear bedroom, and he "presented
    his identification" to Rhodenizer, now "inside" the living room of
    the home.   During the resulting exchange, Rhodenizer asked, "how
    many people were in the house," and defendant responded, "him, Ms.
    Raines and the lady on the couch [his aunt]."   Rhodenizer recalled
    that defendant then appeared "nervous."
    Defendant again returned to the bedroom, while Rhodenizer,
    joined by two additional officers, was "confirming" the warrants.
    However, within a "few minutes," Rhodenizer recalled defendant
    from the bedroom into the living area and arrested and handcuffed
    him.   Rhodenizer then noticed an unidentified man exit the
    connected by a straight hallway to three bedrooms and a bath,
    with doors clearly visible from the front door. A kitchen, also
    visible, was located at the left front of the house.
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    "[s]econd from the rear" bedroom, also located to the right of the
    hallway connecting the living and bedroom areas.
    With defendant in custody, Rhodenizer determined to "sweep
    the area . . . for weapons, and . . . any other people in the
    house," and, accompanied by another officer, "walked back to the
    rear of the house."   Upon entry into defendant's bedroom, a "small
    package of cocaine" was "immediately apparent . . . on top of the
    rear left dresser," and "a large amount" of cocaine was "in plain
    view in the [open] top drawer."    The officers then "secured" the
    room, directed everyone present into the living area and sought a
    search warrant. 2
    When asked at the suppression hearing if fear of "people in
    the house" prompted the search, Rhodenizer testified, "I always
    have a basis to believe I'm potentially in danger."   In recounting
    safety concerns peculiar to the instant circumstances, Rhodenizer
    noted that "other people were coming out of the the [sic]
    bedrooms," after defendant had represented otherwise, and "also
    the fact [he] had completely lost sight of [defendant and Raines]
    each time they go back to the bedroom, they close the door."
    Thus, Rhodenizer undertook the sweep search "to prevent [him] from
    being endangered" by persons and threats he was not "presently
    aware of."
    2
    The officers later determined that the house was occupied
    by defendant, his aunt, brother, sister and her two children.
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    In granting defendant's motion to suppress, the trial court
    concluded that Rhodenizer "was not [in] the least bit concerned
    about his safety, other than to the extent that every police
    officer . . . in every circumstance has some concern about his
    safety."   The court further reasoned that prompt removal of
    defendant from the premises following the arrest would have
    allayed any safety concerns.   Relying upon the lessons of Maryland
    v. Buie, 
    494 U.S. 325
     (1990), the Commonwealth appeals.
    II.
    In Buie, police obtained arrest warrants for Buie and his
    alleged accomplice in an armed robbery, proceeded to Buie's home,
    entered the residence and apprehended Buie as he "emerged from the
    basement."   
    Id. at 328
    .   Police then "entered the basement 'in
    case there was someone else' down there" and observed and seized a
    "red running suit," clothing allegedly worn by a perpetrator of
    the robbery.   
    Id.
       In reversing a decision of the Court of Appeals
    of Maryland that suppressed the evidence, the Supreme Court
    defined a "'protective sweep' . . . [as a] quick and limited
    search of premises, incident to an arrest," a "narrowly confined
    . . . cursory visual inspection of those places in which a person
    might be hiding," and approved the procedure to insure "the safety
    of police officers and others."    
    Id. at 327
    .
    Consistent with the rationale of Terry v. Ohio, 
    392 U.S. 1
    (1968), and Michigan v. Long, 
    463 U.S. 1032
     (1983), the Court
    recognized the "interest of [police] in taking steps to assure
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    themselves that the house in which a suspect is being, or has just
    been arrested is not harboring other persons who are dangerous and
    who could unexpectedly launch an attack."      Buie, 
    494 U.S. at 333
    .
    Thus, "as a precautionary matter and without probable cause or
    reasonable suspicion," police "could . . . look in closets and
    other spaces immediately adjoining the place of arrest[.]"         
    Id. at 334
    .       However, a search "[b]eyond that," while permissible,
    required "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.;
    see Conway v. Commonwealth, 
    12 Va. App. 711
    , 720-21, 
    407 S.E.2d 310
    , 315 (1991).
    Here, assuming, without deciding, that the disputed search
    extended into an area not "immediately adjoining the place of
    arrest," a reasonably prudent officer would have been justified in
    the belief that someone hidden in the hallway or adjacent rooms
    endangered persons on the scene. 3     The police had been advised
    that no fewer than two men residing at the address were the object
    of outstanding arrest warrants.      A "nervous" defendant had not
    truthfully disclosed to police all persons present in the house,
    omitting an unidentified man observed by Rhodenizer exiting a
    3
    Fourth Amendment jurisprudence "turns upon a
    'reasonableness' determination" from an objective, rather than
    subjective, perspective. Whren v. United States, 
    517 U.S. 806
    ,
    817 (1996).
    - 6-
    closed bedroom door and disappearing in the hallway area.         All
    doors opening into the hall had remained closed during the police
    activity in the living area, with defendant opening the door to
    his bedroom only to exit and re-enter.       Under such circumstances,
    Rhodenizer properly conducted the limited, cursory sweep
    countenanced by Buie.
    Accordingly, we reverse the disputed order and remand the
    proceedings to the trial court.
    Reversed and remanded.
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    Benton, J., dissenting.
    The following principles govern our review:
    When we review a trial court's denial of
    a motion to suppress, "[w]e view the
    evidence in a light most favorable to . . .
    the prevailing party below, and we grant all
    reasonable inferences fairly deducible from
    that evidence." Commonwealth v. Grimstead,
    
    12 Va. App. 1066
    , 1067, 
    407 S.E.2d 47
    , 48
    (1991). In our analysis, "we are bound by
    the trial court's findings of historical
    fact unless 'plainly wrong' or without
    evidence to support them." McGee v.
    Commonwealth, 
    25 Va. App. 193
    , 198, 
    487 S.E.2d 259
    , 261 (1997) (en banc) (citing
    Ornelas v. United States, 
    517 U.S. 690
    , 699
    (1996)).
    McNair v. Commonwealth, 
    31 Va. App. 76
    , 81-82, 
    521 S.E.2d 303
    ,
    306 (1999).    Although we must consider de novo the question
    whether the facts prove a seizure in violation of the Fourth
    Amendment, we cannot ignore our obligation to defer to the trial
    judge's findings of historical fact and inferences drawn from
    those facts.    See Reittinger v. Commonwealth, ___ Va. ___, ___,
    ___ S.E.2d ___, ___ (2000).
    Upon his consideration of the evidence, the trial judge
    found that the officer arrested Adib Ameer Marzuq "near the
    front door" and had no "right to go . . . into that [bed]room."
    The trial judge also specifically found that the evidence failed
    to prove an articulable basis upon which the officers could have
    reasonably had a safety concern.   He found as follows:
    [I] had the opportunity to observe the
    officer when he testified and to hear what
    the officer said. Having observed the
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    demeanor of the officer, I got the feeling
    that the officer was not the least bit
    concerned about his safety other than to the
    extent that every police officer to some
    extent in every circumstance has some
    concern about his safety.
    The record supports those findings.
    The evidence in the record proved that a police officer and
    two girls arrived at the door of Marzuq's residence to inquire
    about the girls' complaint of a lost or stolen dog.    When
    informed by his aunt of the officer's presence, Marzuq and his
    female friend came to the door from his bedroom.    After the
    officer instructed Marzuq to bring his dog to the door, Marzuq
    went to his bedroom and returned with the dog.    Satisfied that
    the dog was not theirs, the girls left.
    The police officer remained on the front porch of the
    residence and spoke on his radio while Marzuq returned the dog
    to his bedroom.    After the officer tapped on the screen door,
    Marzuq's female friend again went to the door and spoke to the
    officer, who asked, "[Is] Adib Marzuq here at the residence?"
    She went to get Marzuq.    When Marzuq returned to the front door,
    the officer asked for identification.    After Marzuq went to get
    his identification, three officers entered the residence
    uninvited.    The officers stood inside the residence within two
    or three feet of the front door.    When Marzuq returned to the
    front door with identification, the police officers arrested
    him, "patted him down, [and] then placed him in handcuffs"
    - 9-
    immediately inside the front door of the residence.   The
    officers then "asked was anybody in the bedroom."   When Marzuq
    said the dog was still there, the officers instructed his female
    friend to put the dog in the bathroom.
    After the female walked down the hallway to the bedroom and
    moved the dog to the bathroom, two of the officers walked down
    the hallway and searched Marzuq's bedroom.   The exhibit in the
    record establishes that the door of the bedroom is forty-eight
    feet from the front door of the house where the police arrested
    Marzuq.
    The officer who arrested Marzuq testified that before he
    initially went to the door with the two girls, he learned that
    "there were persons at the residence that had active warrants in
    the City [of Richmond] and in Henrico County."   He did not know
    the names of the persons or why the warrants had been issued.
    After the two girls left, the officer learned who "the warrants
    were for."    Marzuq's female friend testified that the capias had
    been issued because Marzuq "didn't go to court."
    The officer testified that after he entered the residence
    and arrested Marzuq, he and another officer went to the bedroom
    "to sweep the room . . . [for] weapons or . . . other people in
    the house."   The officer's testimony cannot be read to suggest
    that he entered and swept the room because he believed Marzuq
    lied about the presence of another person in the house.     Indeed,
    he testified as follows:
    - 10-
    Q: Did you ask Mr. Marzuq if there was
    anybody else in that room?
    A: I asked if there was anybody in the
    house. They told me no; it was only the
    three of them.
    Q: Are you sure the question was the house
    and not the room?
    A: The room, the house, it possibly could
    have been the room, if there was anyone else
    in the room.
    Viewed in the light most favorable to upholding the judge's
    factual findings, we must accept that the trial judge, as fact
    finder, believed that the officer's inquiry only concerned the
    bedroom.
    The officer also testified that neither the aunt nor
    Marzuq's female friend caused him any safety concerns.     He did
    not go to the bedroom because of any belief of danger.     In fact,
    he testified:   "I didn't believe I was in danger.    The point was
    not that I believed myself in danger, it was to prevent myself
    from being endangered that I'm not presently aware of."     The
    officer's testimony establishes that he went into the bedroom
    because he believed he was entitled to search the house.
    The facts in Maryland v. Buie, 
    494 U.S. 325
     (1990),
    indicate that after two men committed an armed robbery of a
    restaurant, the police obtained a warrant to arrest Buie and a
    specifically named accomplice.     See 
    id. at 328
    .   When the police
    entered Buie's home to arrest him, Buie was in his basement.
    The officers drew their guns and ordered everyone in the
    - 11-
    basement to come out and show their hands.     Buie came from
    "around the bottom of the stairwell and . . . emerged from the
    basement."     
    Id. at 328
    .   The officers handcuffed him and then
    searched the basement for other persons.      See 
    id.
       Because
    Buie's accomplice in the robbery had not been arrested, the
    police entered the basement "to look for the suspected
    accomplice or anyone else who might pose a threat to the
    officers."     
    Id. at 329
     (emphasis added).
    Approving the search of the basement from which the
    officers commanded Buie to leave, the Supreme Court first noted
    the following limitation on the search of the residence:
    Possessing an arrest warrant and probable
    cause to believe Buie was in his home, the
    officers were entitled to enter and to
    search anywhere in the house in which Buie
    might be found. Once he was found, however,
    the search for him was over, and there was
    no longer that particular justification for
    entering any rooms that had not yet been
    searched.
    
    Id. at 332-33
    .    The Court then stated the following rules that
    govern a limited search after the arrest:
    [A]s an incident to the arrest the officers
    could, as a precautionary matter and without
    probable cause or reasonable suspicion, look
    in closets and other spaces immediately
    adjoining the place of arrest from which an
    attack could be immediately launched.
    Beyond that, however, we hold 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
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    to be swept harbors an individual posing a
    danger to those on the arrest scene.
    
    Id. at 334
     (emphasis added).
    Thus, the Supreme Court did not approve the use of
    protective sweeps beyond the immediate area of arrest whenever a
    person is arrested at a residence.      The Court held "that the
    Fourth Amendment would permit the protective sweep [beyond the
    area of arrest] . . . if the searching officer 'possesse[d] a
    reasonable belief based on "specific and articulable facts
    which, taken together with the rational inferences from those
    facts, reasonably warrant[ed]" the officer in believing,' that
    the area swept harbored an individual posing a danger to the
    officer or others."    
    Id. at 327
     (emphasis added) (citation
    omitted).   Indeed, the Supreme Court specifically rejected
    "[t]he State's argument that no level of objective justification
    should be required [to search beyond the spaces immediately
    adjoining the place of arrest] because of 'the danger that
    inheres in the in-home arrest for a violent crime.'"      
    Id.
     at 334
    n.2 (citation omitted).
    The record in this case established that the officers
    arrested Marzuq at the front door of the residence.      Contrary to
    the Buie rule, however, some of the officers then went to an
    area of the house beyond that space "immediately adjoining the
    place of arrest" to sweep search.    
    494 U.S. at 334
    .    They went
    from the foyer, down a hallway forty-eight feet long, and into
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    the bedroom.   The officers could only do that if they possessed
    articulable facts which would have warranted a reasonable
    conclusion that "the [bedroom] . . . harbors an individual
    posing a danger" to the officers.       
    Id.
        No objective facts
    proved that.   All the evidence showed was that a "capias" of
    some kind was outstanding.   Indeed, at the suppression hearing,
    the prosecutor "concede[d] it is not a warrant of any kind."
    The officer further testified that he also was looking for
    weapons.    Nothing in Buie extends the scope of the sweep to a
    search for weapons.   Moreover, the officers had no reasonable
    basis to believe Marzuq had a weapon.         The prosecutor conceded
    at trial that the evidence proved no "factors that . . . this
    gentleman is armed and dangerous."
    Based on the evidence and the officer's demeanor, the trial
    judge found that the officers "allowed [Marzuq] to go back and
    forth, freely, on a number of occasions," that the officers did
    not "know . . . whether [the warrant] was for a felony . . . or
    misdemeanor . . . [or] for . . . failure to appear . . . of some
    type," and that, although the "officer . . . concluded that he
    wanted to sweep the area for . . . weapons and anyone else in
    the house[,] . . . the sweep seemed to concern only the back
    bedroom."   The record supports the trial judge's finding that
    the officers had no basis to believe there was a threat to their
    safety.    They simply told Marzuq and his female friend they
    - 14-
    intended to search Marzuq's bedroom "like in a traffic stop; I
    can search your car."
    As the Supreme Court ruled in Buie, however, a search in a
    residence "as an incident to the arrest" must be confined to
    "spaces immediately adjoining the place of arrest."     
    494 U.S. at 334
    .    That search, designated as a "sweep," is limited to
    "spaces . . . from which an attack could be . . . launched,"
    
    id.,
     and, thus, by definition does not include a search for a
    weapon.    As the Supreme Court further noted in Buie, no
    suspicion arises merely because an arrest occurs in a home, even
    if it is an "arrest for a violent crime," because "the existence
    of the arrest warrant implies nothing about whether dangerous
    third parties will be found in the arrestee's house."     
    494 U.S. at
    334-35 n.2.      In this case, the trial judge's finding that the
    officers had no information that any person in the house was
    dangerous is supported by the evidence.     Moreover, the officers
    had no basis to believe anyone was in the bedroom.     Although the
    prosecutor told the trial judge "that this is a very deminimis
    intrusion," the Supreme Court rejected that precise argument in
    Buie.     See 
    id.
    As the trial judge found from the evidence, Marzuq was "in
    handcuffs" and "near the front door."     Nothing in Buie allows
    the officers to search a bedroom forty-eight feet down a hallway
    from the place of arrest, when they had no articulable suspicion
    that a person who poses a danger to them might be there.      As the
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    judge found, and the prosecutor conceded, the existence of a
    capias, standing alone, did not add any fact to the assessment
    of danger.    One of the officers who made the search testified
    that he was merely acting upon a generalized belief that a
    police officer must always be concerned about safety issues.
    Thus, he went to the bedroom to look "for weapons and also to
    make sure there weren't any other people in the house."
    Having concluded that there were no articulable facts that
    any person posed a danger, the judge also found as follows:
    [T]here was no need, nor any right, for the
    officer to go to that bedroom under those
    circumstances, to sweep the area for
    weapons; there being no evidence of [Marzuq]
    having demonstrated any conduct that would
    lead the officer to reasonably conclude that
    he or the other officers were in danger.
    For that reason, I grant the motion to
    suppress.
    The trial judge's findings were based upon credibility
    assessments of the witnesses and were not plainly wrong.
    For these reasons, I would hold that the facts fail to
    support a sweep of the bedroom.    Thus, I would affirm the order
    suppressing the evidence.
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