United States v. Marcus Henderson , 748 F.3d 788 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2843
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCUS HENDERSON,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:11-cr-00007-RLM-1 — Robert L. Miller, Jr., Judge.
ARGUED DECEMBER 12, 2013 — DECIDED APRIL 15, 2014
Before BAUER, CUDAHY, and POSNER, Circuit Judges.
BAUER, Circuit Judge. Marcus Henderson (“Henderson”)
was indicted for being a drug user in possession of firearms
in violation of 18 U.S.C. § 922(g)(3). Prior to trial, the district
court judge denied Henderson’s motion to suppress evidence
seized during a protective sweep of his home. A jury found
Henderson guilty, and the district court judge sentenced him
to thirty-nine months’ imprisonment, followed by three years’
supervised release, and the payment of a $100 special assess-
2 No. 13-2843
ment. On appeal, Henderson contends that the firearms were
discovered pursuant to an unconstitutional search because the
protective sweep of his home was unreasonable. For the
reasons that follow, we affirm.
I. BACKGROUND
In the early morning of September 19, 2010, the South Bend
Police Department responded to a domestic disturbance call
from Terrence Winfield (“Winfield”). Winfield reported that
Crystal Davis (“Davis”), his ex-girlfriend, was being held
against her will at the house of defendant Henderson. Sergeant
Wolff met Winfield across the street from Henderson’s house,
where Winfield showed Sergeant Wolff text messages on his
cell phone from Davis. From Sergeant Wolff’s perspective, the
texts were from an unknown female. Sergeant Wolff described
the information he saw on Winfield’s cell phone as “several
texts on it from this female stating generally that she was being
held there, she could not get out of the house, made references
to Henderson being dangerous and [that] he had weapons in
the house.” Sergeant Wolff responded to those text messages
two-fold: he took steps to confirm that the woman sending the
texts was actually in Henderson’s house and he called the
commander of the South Bend SWAT team to report a possible
hostage situation.
Sergeant Wolff then set up a perimeter of police officers and
spotlighted the doors, windows, and exterior of Henderson’s
home. Several officers saw movement in the house when a
curtain was pulled to one side by someone inside the house;
the person was not identified, but the officers suspected that it
was Davis. Sergeant Wolff spoke again with Winfield who
No. 13-2843 3
continued to receive new texts from Davis. Sergeant Wolff
remembered seeing a text that said, “he’s got the door bolted,
I can’t get out.” The officers did not attempt to establish
direct contact with Davis, but set up a PA loudspeaker to
establish contact with Henderson. The officers demanded that
Henderson exit the house. A standoff lasted for over an hour.
About fifteen minutes after the SWAT team arrived and
surrounded the house, Davis stepped out of the house in tears.
She was taken to a police command post where Davis told her
story to a South Bend police officer. The officer recorded the
conversation on the squad car’s video camera; the statement
described how she could not leave because all the exits had
keyed deadbolts and the keys were in Henderson’s possession.
She explained that she had known Henderson for at least
twenty-five years and went to his house the previous night on
her own accord. However, according to Davis when she
wanted to go home, Henderson threatened her by displaying
a handgun and telling her that she was not going anywhere.
Fifteen to thirty minutes after Davis exited, Henderson
voluntarily came out of the house and locked the door behind
him. The officers handcuffed Henderson, took him into
custody, and searched him; the officers did not find any
weapons in Henderson’s possession.
Approximately five to ten minutes after his arrest, the
officers took Henderson’s keys and attempted to open the front
door. Unable to unlock the front door, the SWAT team forced
entry through the back door and conducted a brief protective
sweep of the house. They did not find anyone else in the house,
4 No. 13-2843
but they saw remnants of a marijuana grow operation and
firearms in plain view. The sweep lasted five minutes or less.
After the sweep, the South Bend Police Department ob-
tained a search warrant for Henderson’s residence and found
crack cocaine, powder cocaine, marijuana, and five firearms.
The government charged Henderson with being a drug
user in possession of firearms in violation of 18 U.S.C.
§ 922(g)(3). Henderson moved to suppress the seized firearms,
arguing that the protective sweep was unreasonable and in
violation of the Fourth Amendment. Sergeant Wolff and two
other South Bend SWAT officers testified at an evidentiary
hearing. The district court judge denied the motion.
After a two day trial, the jury found Henderson guilty.
Neither Davis nor Henderson testified at trial. However, both
testified at the sentencing hearing and provided conflicting
stories about what happened inside Henderson’s house on the
morning of September 19, 2010. Davis testified essentially
consistent with her statement recorded on the squad car’s
video camera. Henderson denied Davis’ version of the events.
He said they talked, drank, had sex, and he fell asleep. He
recounted that he awoke and found police surrounding his
house, Davis still inside, and his keys on his bed. He testified
that Davis brought the handguns and drugs found by the
police to his house.
Henderson theorized that Davis concocted the criminal
confinement story because she was unfaithful to Winfield and
her text messages were only a ploy to explain why she stayed
the night with Henderson. The district court judge found the
events more likely than not to have occurred as described by
No. 13-2843 5
Henderson. Except, the judge did not believe Henderson’s
statement that Davis brought the handguns and drugs to his
house. The judge sentenced Henderson to thirty-nine months’
imprisonment, followed by three years’ supervised release,
and the payment of a $100 special assessment.
II. DISCUSSION
The sole issue raised by Henderson on appeal is his claim
that the protective sweep was unreasonable because there were
no articulable facts that Henderson’s house harbored an
individual who posed a threat to those on the scene after
Henderson exited.
When the district court denies a motion to suppress, we
review legal conclusions or mixed questions of law and fact
de novo. United States v. Delgado, 701 F.3d 1161, 1164 (7th Cir.
2012). We review the district court’s factual findings for clear
error. Id. The facts in this case are not in dispute, so we review
the district court’s legal conclusion that the police acted
reasonably in performing a protective sweep de novo. United
States v. Tapia, 610 F.3d 505, 510 (7th Cir. 2010).
The Fourth Amendment, as applied to the states through
the Fourteenth Amendment, imposes two express require-
ments on the government. Kentucky v. King, 131 S. Ct. 1849,
1856 (2011). “First, all searches and seizures must be reason-
able. Second, a warrant may not be issued unless probable
cause is properly established and the scope of the authorized
search is set out with particularity.” Id. The Court has inferred
that in most situations police must obtain a warrant prior to
conducting a search, but it has defined certain reasonable
exceptions when a warrant is not required. Id.6 No. 13-2843
One well-established exception to the warrant requirement
is when the police search a house during a protective sweep.
Maryland v. Buie, 494 U.S. 325, 327 (1990). “A ‘protective sweep’
is a quick and limited search of premises, incident to arrest
conducted to protect the safety of police officers or others.” Id.The Fourth Amendment permits a protective sweep “if the
searching officer possessed a reasonable belief based on
specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warranted the
officer in believing that the area swept harbored an individual
posing a danger to the officer or others.” Id. (internal citations
omitted). A protective sweep is “aimed at protecting the
arresting officers” and is “not a full search of the premises.” Id.
at 335. The search is limited to a cursory inspection into spaces
where other assailants may be hiding and must not last “longer
than is necessary to dispel the reasonable suspicion of danger.”
Id. at 335–36.
In Buie, the police executed an arrest warrant in Buie’s
house after he and his accomplice were suspected of armed
robbery. 494 U.S. at 328. The police arrested Buie after he
emerged from the basement of his home. Id. A detective then
entered the basement “in case there was someone else” down
there. Id. The detective who searched the basement did not
have any information that anyone was actually in the base-
ment, but went down there to secure the area anyway. Id.While checking the basement, the detective seized a red
running suit that matched the description of a suit worn by one
of the robbery suspects. Id. The introduction of the red running
suit at trial was permissible because the police seized it during
No. 13-2843 7
a reasonable protective sweep. Id. at 337. The holding from this
seminal case carries the day today.
This circuit has applied and preserved the Buie standard in
five cases with facts similar to this case; in each case we found
that “specific and articulable facts” existed to support the
officers’ reasonable conclusions that areas needed to be swept
to search for individuals posing a threat to the officers or
others. United States v. Starnes, 741 F.3d 804 (7th Cir. 2013);
Tapia, 610 F.3d 505 (7th Cir. 2010); United States v. Burrows, 48
F.3d 1011 (7th Cir. 1995); United States v. Barker, 27 F.3d 1287(7th Cir. 1994); United States v. Richards, 937 F.2d 1287 (7th Cir.
1991). We recognized that “[t]he inquiry is an exceptionally
fact-intensive one in which we must analyze myriad factors
including, among other consideration, the configuration of the
dwelling, the general surroundings, and the opportunities for
ambush.” Starnes, 741 F.3d at 808 (citing Burrows, 48 F.3d at
1016). We recognized that “[t]he philosophy behind a protec-
tive sweep, however, remains the same regardless how the
officers arrived in the home.” Id. at 810. We also emphasized
that “the sweep is a device that can easily be perverted to
achieve ends other than those acknowledged as legitimate in
Buie.” Burrows, 48 F.3d at 1017. Therefore, we have ensured
that our opinions “neither expand nor contract the law enforce-
ment’s right to perform such a sweep” and continue to apply
“the same concise standard announced in Buie.” Starnes, 741
F.3d at 811.
In this case, the record is replete with specific and articu-
lable facts which the SWAT officers reasonably relied upon to
conclude that the officers or others faced a dangerous situation
without a protective sweep of Henderson’s house. The facts
8 No. 13-2843
justifying the SWAT team’s protective sweep can be boiled
down to the following: The SWAT team received a report of a
hostage situation, validated by text messages on Winfield’s
phone and the officers’ sighting of movement within the house.
The text messages from Davis said that she was being held by
someone with a gun. The officers called over the PA loud-
speaker for over an hour demanding for the occupants of the
house to come out, but instead of cooperating, the occupants
remained locked in the house. The officers did not know how
many occupants or what the occupants were doing inside the
house during the standoff. Davis appeared to be frightened
when she exited. When Davis and Henderson exited the house,
neither were armed. All of the doors were locked and the
house was two stories; large enough for others to hide and
ambush the officers or bystanders. The SWAT team had
information that Henderson possessed a gun but no weapons
were found on his person when he was arrested; it was
reasonable to infer that an armed and dangerous person
remained in the house. As we have found in the past, “a bevy
of facts supports the conclusion that such a sweep was reason-
able and prudent.” Starnes, 741 F.3d at 810.
Henderson faults the officers for not communicating
directly with Davis via text message to gather information
about whether additional victims or suspects might also have
been in the house. Henderson argues that because the officers
had no information that there were additional people in
Henderson’s house, it was unreasonable to conduct a protec-
tive sweep.
We take a moment to entertain Henderson’s suggestion that
the officers needed to confirm with Davis how many people
No. 13-2843 9
were in the house before conducting a protective sweep. SWAT
officer Hanley’s testimony at the suppression hearing ex-
plained the scenario best: “Well, we can’t believe the suspect,
nor can we always believe a victim, so entry is always made by
SWAT in a situation like this just to make sure there’s [sic] no
additional victims.” The district court judge confirmed SWAT
officer Hanley’s rationale at Henderson’s sentencing; the judge
found that Davis likely lied about being a hostage and
Henderson’s version of the story was more plausible. It is not
realistic for police officers to always rely on the statements of
people involved at a crime scene; they sometimes provide
wrong information, or sometimes flat out lie.
Since Buie, the standard and philosophy behind a protective
sweep remain the same—“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.” Buie, 494 U.S. at 334. Making an
arrest on the adversary’s “turf” may create the threat of
ambush and justify a protective sweep. Id. at 333. See also,
Starnes, 741 F.3d at 808 (recognizing the potential of ambush as
a legitimate reason to perform a protective sweep); Tapia, 610
F.3d at 511 (“Officers should not be forced to suffer prevent-
able risk of ambush, even where a location is so isolated that
the officers could conceivably be protected without entering
the area.”); Burrows, 48 F.3d at 1017 (“officers had the right to
ensure their safety and the safety of everyone else in the area
not only during the arrest itself but also during the remainder
of the time that they were legally on the premises and its
environs”); Barker, 27 F.3d at 1291 (holding that a protective
10 No. 13-2843
sweep was reasonable because the officer believed the area
‘swept’ harbored weapons and an individual posing danger to
the officer or others); Richards, 937 F.2d at 1291 (stating that an
officer would not need “a warrant to enter the house of a
person who is holding hostages inside”).
And, the duration and scope of the protective sweep in this
case were reasonable. The SWAT team entered the house
within ten minutes of detaining Henderson. Unable to operate
the front door lock with the keys found on Henderson, the
SWAT team forced their way into the house through the back
door. Once inside, they secured the premises to ensure nobody
remained in the house, victim or assailant. The sweep was
cursory and lasted no longer than five minutes. SWAT officer
Graber testified that the sweep was “probably five—no more
than five minutes” and “nothing was touched or moved.”
Other than the SWAT team, the South Bend Police Department
remained outside until the court issued the search warrant and
a full search was feasible. The district court did not err in
denying Henderson’s motion to suppress.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.