United States v. Portis , 407 F. App'x 669 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4853
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN PORTIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00034-RLW-1)
Argued: December 10, 2010 Decided: January 13, 2011
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Charles David Whaley, Richmond, Virginia, for Appellant.
Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee. ON BRIEF: Jennifer M. Newman,
Richmond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal arises from a district court’s denial of
defendant Brian Portis’s motion to suppress evidence recovered
from his home. Although Portis consented to the warrantless
search of his residence, he argues that his consent was tainted
by officers’ earlier sweep of the premises, which he claims
violated his Fourth Amendment rights. For the reasons described
below, we disagree and affirm.
I.
A.
We briefly summarize the relevant facts. On June 6, 2007,
Officer Edward Aeschlimann and his partner, Officer Corey
Watson, pulled Portis over for running a stop sign near his
Richmond, Virginia home. Portis was driving a brown pick-up
truck with a ladder rig. When running his information, the
officers learned that Portis’s license had been suspended.
Portis consented to a search of his vehicle, in which the
officers found a loaded magazine. Portis explained that
although he had no guns in his car or home, his mother had
firearms that he sometimes used. He also mentioned that he was
a former Army infantryman and an “expert marksman.” J.A. 41.
The traffic stop ended without incident.
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One week later, on the evening of June 13, 2007, Officers
Aeschlimann and Watson received a dispatch alerting them to a
shooting in their area “involving an individual in a brown pick-
up truck that had a ladder rig.” Id. at 44. Officer
Aeschlimann contacted Detective Bill Brairton, who had phoned in
the dispatch, and learned that Detective Brairton was
investigating a homicide, for which Portis was a person of
interest.
Detective Brairton reported that during his investigation
he had spoken with a woman named Diana Rameriz, who claimed that
Portis owned several guns--including at one point an assault
rifle--and had threatened her son with a firearm. Detective
Brairton explained that Rameriz had contacted him again, earlier
on June 13, to report that Portis had just shot at her son.
Detective Brairton further stated that Rameriz’s son had not
been hit and would seek out Officers Aeschlimann and Watson when
they arrived on the scene. Detective Brairton also informed
Officer Aeschlimann that Portis had a picture of himself with an
assault rifle taped to his front door and could be “heavily
armed.” Id. at 46.
Equipped with this information, Officers Aeschlimann and
Watson called for backup and arrived at Portis’s house at 6:52
p.m., along with another two-person police vehicle. The
officers found Portis standing in the doorway of his home and
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another, unidentified man standing near the front steps.
Officer Aeschlimann shouted “Hey Brian.” Id. at 50. Portis
responded by retreating into his home. At that point, Officer
Aeschlimann drew his weapon and commanded Portis to exit his
home. About fifteen seconds later, Portis complied, raising his
hands to show he was not armed “and walk[ing] down the front
steps as instructed.” Id. at 51.
The officers approached Portis and the other man, placed
them both in handcuffs, and patted Portis down to make sure he
was not armed. Officer Aeschlimann then instructed another
officer, Officer Gregory Hamilton, to “conduct a sweep of the
house to make sure no one else was inside.” Id. Officer
Hamilton swept the house for two minutes, accompanied by an
officer-in-training. The two did a “visual scan” of the
surroundings and did not open any closets or go through any
drawers. Id. at 94. Officer Hamilton reported that he had not
seen any weapons but had observed a metal spoon, with what he
thought was cocaine residue, sitting on the floor of a bedroom.
Officer Watson read Portis his Miranda rights at 7:00 p.m.
Portis then admitted to Officer Watson that he had a firearm in
his home. During Officer Watson’s conversation with Portis,
Rameriz’s son--the alleged shooting victim--arrived at the
scene, as did Portis’s roommate. After speaking with the
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alleged victim, the officers concluded that they did not have
probable cause to arrest Portis.
The officers released Portis and the other individual from
handcuffs but informed them that they could not leave, as the
officers were still investigating the cocaine residue and gun in
Portis’s home. Officer Aeschlimann asked Portis and his
roommate if the officers could search the home, noting that he
thought that “the fact there was drug paraphernalia in plain
view,” and that Portis had admitted he had a firearm would, in
any event, be sufficient to obtain a search warrant. Id. at 60.
Portis and his roommate consented to the search. Portis also
described to the officers where the gun was located and admitted
that he had drug paraphernalia in his bedroom, which he used to
smoke marijuana two or three times a week. Officers recovered
the gun and drug paraphernalia.
B.
On January 24, 2008, Portis was charged with possession of
a firearm as an unlawful user of controlled substances, in
violation of 18 U.S.C. § 922(g)(3), and unlawful drug
possession, in violation of 21 U.S.C. § 844. Portis moved to
suppress the evidence recovered from his home, arguing that his
consent to the search was tainted by the officers’ allegedly
unlawful initial entry. Officers Aeschlimann, Hamilton, and
Watson testified at an April 2008 suppression hearing.
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After hearing from both sides, the district court denied
the motion to suppress. Portis was found guilty on both counts
in September 2009. * This appeal followed.
II.
On appeal, Portis again challenges the officers’ initial
sweep of his home, urging that the search violated his Fourth
Amendment rights. We disagree. In light of the facts presented
at the suppression hearing, the brief visual scan of Portis’s
residence was justified as an appropriately limited protective
sweep.
When reviewing an appeal from a district court’s denial of
a motion to suppress, “we review the court’s factual findings
for clear error and its legal determinations de novo.” United
States v. Wardrick, 350 F.3d 446, 451 (4th Cir. 2003). A
protective sweep of a defendant’s home is justified if there are
“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 . . . scene.”
*
We vacated Portis’s initial conviction, citing confusion
surrounding what he believed to be a conditional guilty plea.
See United States v. Portis, 332 F. App’x 870, 872 (4th Cir.
2009). We did not reach the merits of his present claim, and he
has since been found guilty after a bench trial.
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Maryland v. Buie, 494 U.S. 325, 334 (1990); see also United
States v. Baker, 577 F.2d 1147, 1152 (4th Cir. 1978) (finding
that a protective sweep of a defendant’s home was justified when
the defendant was arrested in front of it).
The vast majority of circuit courts to have considered the
issue have upheld protective sweeps conducted in non-arrest
situations in which officers are lawfully on a defendant’s
property. See, e.g., United States v. Miller, 430 F.3d 93, 98
(2d Cir. 2005) (finding “that a law enforcement officer present
in a home under lawful process . . . may conduct a protective
sweep when the officer possesses” articulable facts as outlined
in Buie); United States v. Gould, 364 F.3d 578, 584 (5th Cir.
2004) (en banc) (“[A]rrest is not always, or per se, an
indispensable element of an in-home protective sweep.”); see
also State v. Davila, 999 A.2d 1116, 1127-29 (N.J. 2010)
(collecting cases). Although we have not yet spoken directly to
this point, on the undisputed facts, we are persuaded that the
officers’ brief walk-through of Portis’s home was justified.
As detailed at the suppression hearing, the officers had
reason to believe that Portis had firearms in his house and had
just shot at someone. They were also aware that Portis was both
a person of interest in a homicide investigation and an army-
trained “expert marksman.” The officers had seen at least one
other individual on the premises and did not know what Portis
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had done during the period in which he retreated inside his home
and disappeared from view. They had reason to fear that Portis
may have been conferring with an armed confederate or hiding a
gun to which he would have had easy access to shoot at the
departing officers, in the event that they did not arrest him.
These specific facts were sufficient to justify a
reasonable officer’s concern that Portis’s home “harbor[ed]
other persons who [we]re dangerous and who could unexpectedly
[have] launch[ed] an attack.” United States v. Green, 599 F.3d
360, 376 (4th Cir. 2010) (quoting Buie, 494 U.S. at 333); see
also Mora v. City of Gaithersburg, 519 F.3d 216, 226 (4th Cir.
2008) (upholding a protective sweep when officers “did not and
could not fully know the dimensions of the threat they faced”).
Portis’s assertion to the contrary lacks merit.
Significantly, the officers did not conduct an intrusive
investigation during their initial entry or linger in Portis’s
home longer than necessary. They instead confined themselves to
a two-minute sweep of places in which a dangerous individual
might have been hiding. On these facts, their limited search
was justified and did not taint Portis’s subsequent consent.
III.
We have reviewed Portis’s remaining arguments and find them
to be without merit. For the foregoing reasons we affirm the
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district court’s denial of Portis’s motion to suppress the
disputed evidence.
AFFIRMED
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