      IN THE UNITED STATES COURT OF APPEALS
               FOR THE FIFTH CIRCUIT United States Court of Appeals
                                              Fifth Circuit

                                                              FILED
                                                             July 13, 2010

                             No. 09-50067                    Lyle W. Cayce
                                                                  Clerk

UNITED STATES OF AMERICA,

                                      Plaintiff - Appellee
v.

BRIAN MICHAEL DAVID ROBERTS,
                                      Defendant - Appellant



                           Consolidated with
                             No. 09-50186



UNITED STATES OF AMERICA,

                                      Plaintiff - Appellee
v.

MAJOR HARRISON BOOTH,
                                      Defendant - Appellant


              Appeal from the United States District Court
                   for the Western District of Texas


Before HIGGINBOTHAM, GARZA and PRADO, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
                                       No. 09-50067
                                     Consolidated with
                                       No. 09-50186

       This is a consolidated appeal by co-defendants, Brian Michael David
Roberts (“Roberts”) and Major Harrison Booth (“Booth”). Both men entered
conditional guilty pleas to firearms violations,1 and now appeal the denial of
their motion to suppress the firearms. For the reasons set forth below, we
AFFIRM.
                                                I
       Officers Darren Clements and Kent Spencer received a tip that some of the
residents of an apartment building might be in possession of stolen items and
guns. Officers Clements and Spencer went to the apartment to investigate.
They spoke with the occupants of an apartment who told them that a white male
known as “B” had recently attempted to sell them a laptop computer, which they
believed was stolen, and that “B” was carrying a gun on his hip during the
interaction. The tipsters told the officers that “B” lived in apartment 2201,
pointed out a small pickup truck that “B” drove, and indicated that a black male
known as “Major” also lived in the apartment with “B.” The officers were also
told that other people regularly stayed in the apartment with “B” and “Major.”
A license plate check on the truck revealed that it was registered to Brian
Roberts, who had several outstanding arrest warrants for traffic offenses. Based
on this information, the officers surmised that Brian Roberts was the person
identified as “B.”
       The officers called for additional backup because they did not know how
many people were in the apartment. While waiting, they observed a black man
enter and exit the apartment. They did not see a white male.


       1
         Booth pleaded guilty to one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Roberts pleaded guilty to one count of possession of a firearm
by a user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). The charges were
based on a 9mm handgun and a 12-gauge shotgun seized from the apartment where the men
lived.

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                                 No. 09-50067
                               Consolidated with
                                 No. 09-50186

      Once a third officer arrived, the officers approached the apartment to
arrest Roberts on the outstanding traffic warrants. Officers Clements and
Spencer knocked on the door and a white man matching Roberts’s description
answered. Officer Spencer identified himself and stated that they were looking
for Brian Roberts so they could execute arrest warrants. The man at the door
said that he was Roberts. The officers asked him for identification to verify his
identity before making the arrest. At that point, the officers were still at the
threshold of Roberts’s apartment, where they could perceive other people in the
darkened room behind Roberts.
      Roberts turned back into the darkened apartment to retrieve his wallet
from an entertainment center. At that point, the officers stepped into the
darkened apartment, and Officer Clements shined a flashlight on Roberts to
maintain supervision over the suspect.
      When Officer Clements pointed the light at Roberts, Clements could see
a pistol magazine and several loose rounds of ammunition in plain view on the
entertainment center. The officers could also see other people in the apartment.
Seeing the ammunition within easy reach, the officers immediately ordered
Roberts to stop walking toward the entertainment center and return to the door.
Officer Spencer handcuffed Roberts. The other occupants of the apartment were
moved away from the weapons and secured against one wall. The officers later
retrieved the magazine and a gun that Roberts told them was under the couch.
      Concerned that there might be other people and weapons in the
apartment, the officers conducted a protective sweep. Officer Clements knocked
at a locked bedroom door. A black male, later identified as Booth, opened the
door. Officer Clements then entered the room and saw a shotgun leaning inside
an open closet. He secured the gun and removed it from the apartment. Booth
was taken into custody because he had an outstanding Georgia arrest warrant.

                                       3
                                 No. 09-50067
                               Consolidated with
                                 No. 09-50186

      Roberts and Booth were indicted for federal weapons offenses. They
moved to suppress the firearms seized from the apartment, claiming that the
police lacked consent to enter the apartment and had no basis to perform a
protective sweep. The district court denied the motion to suppress. Both men
pleaded guilty conditionally, reserving their right to appeal the district court’s
denial of their motions to suppress.
                                        II
      The standard of review for a “motion to suppress based on live testimony
at a suppression hearing is to accept the trial court’s factual findings unless
clearly erroneous or influenced by an incorrect view of the law.” United States
v. Outlaw, 319 F.3d 701, 704 (5th Cir. 2003). Evidence is considered in “the light
most favorable to the prevailing party.” United States v. Shelton, 337 F.3d 529,
532 (5th Cir. 2003). The ultimate conclusion about the constitutionality of the
law enforcement conduct is reviewed de novo. Id. This court “may affirm the
district court’s ruling on a motion to suppress based on any rationale supported
by the record,” but “where a police officer acts without a warrant, the
government bears the burden of proving that the search was valid.” United
States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005) (internal citations omitted).
      Roberts and Booth contend that their Fourth Amendment rights were
violated when the police executed a warrantless search of the apartment. They
argue that the officers conducting the search (1) had no justification for entering
the apartment; (2) had no justification for conducting a protective sweep of the
apartment; and (3) did not satisfy the elements of the “plain view” doctrine that
would permit them to seize the weapons. Accordingly, they argue that the
weapons seized during the search should have been suppressed.
                                        A


                                        4
                                       No. 09-50067
                                     Consolidated with
                                       No. 09-50186

       Appellants argue that because Roberts admitted his identity in response
to Officer Spencer’s question, the limited authority to enter a residence to
effectuate an arrest warrant was not implicated.2 Accordingly, we first consider
whether the officers’ entry into the apartment was valid.
       The officers were reasonable in conducting a “knock and talk,” which is an
accepted investigatory tactic. See, e.g., United States v. Gomez-Moreno, 479 F.3d
350, 356 (5th Cir. 2007). They approached the door, asked for Roberts so that
they could execute the arrest warrants, and then requested that the person
purporting to be Roberts provide identification so that they could make the
arrest. The officers testified that departmental policy requires them to verify a
suspect’s identity before making an arrest.3
       The Supreme Court has rejected the notion that exigent circumstances are
required to justify entering an area in which a person has a protected Fourth
Amendment privacy right where the entry is effectuated to maintain control over
someone being placed under arrest. See Washington v. Chrisman, 455 U.S. 1,
7 (1982). In Chrisman, a Washington State University police officer spotted a



       2
          Appellants also argue that the arrest warrants for traffic violations could not justify
the officers’ entry into the apartment. Although we have long recognized that “[p]olice armed
with an arrest warrant and probable cause to believe that a suspect is at his home have the
right to enter the premises to arrest him,” we have not explicitly addressed whether the type
of warrant matters. See, e.g., United States v. Virgil, 444 F.3d 447, 451 (5th Cir. 2006) (citing
Payton v. New York, 445 U.S. 573, 602–03 (1980)); United States v. James, 528 F.2d 999, 1017
(5th Cir. 1976). Appellants contend that only a felony (as opposed to misdemeanor) warrant
is sufficient to privilege an officer’s entry. We need not answer that question today, because,
as discussed herein, the step into the apartment was justified to maintain control of Roberts
during the arrest.
       3
         There is nothing in the record to suggest that the request was unreasonable or would
create exigent circumstances. Indeed, the officers had no way of knowing that the request
would result in Roberts walking back into the darkened apartment. No doubt if they gave any
thought to the matter at all, they reasonably would have expected that Roberts would produce
identification from somewhere on his person.

                                               5
                                       No. 09-50067
                                     Consolidated with
                                       No. 09-50186

student, who appeared to be underage, carrying a half-gallon bottle of gin, and
requested identification from him. Id. at 3. The student said his identification
was in his dorm room and requested that he be allowed to retrieve it. Id. The
officer accompanied the student to the dorm. While there, the officer identified
drug paraphernalia in plain view. Id. at 4. He seized the contraband and
arrested the student and his roommate. Id. The Supreme Court reversed the
Washington Supreme Court, which had found that the officer was not entitled
to accompany the student from the public hallway into the dorm room absent
exigent circumstances. Id. at 6.
       The Supreme Court found that exigent circumstances were not required
to enter the dorm room because the arresting officers had authority to maintain
custody over the arrested person.4 Id. (citing Pennsylvania v. Mimms, 434 U.S.
106, 109–10 (1977). The Supreme Court held that “it is not ‘unreasonable’ under
the Fourth Amendment for a police officer, as a matter of routine, to monitor the
movements of an arrested person” because the need to “ensure his own
safety))as well as the integrity of the arrest))is compelling.” Id. at 7.
       The facts here are even stronger than in Chrisman. The Supreme Court
found that the entry to maintain control was reasonable even in the “absence of
an affirmative indication that the . . . person might have a weapon available or
might attempt to escape.” Id. at 6. (emphasis added). Here, the officers acted

       4
          Although the Supreme Court refers to the student as having already been placed
under arrest when the officer accompanied him back to his dorm room to retrieve identification,
id. at 6, we do not think that this characterization makes Chrisman any less applicable.
Whether considering the suspect to be under arrest or in the process of being arrested, the facts
are on all fours. In Chrisman, the officer suspected illegal possession of alcohol and requested
identification to confirm that the student was, in fact, underage. Id. at 4. Likewise, the
officers here had valid, outstanding arrest warrants for Roberts and requested identification
to verify that the arrest was proper. In both cases, the officers moved into an area in which
the suspect had a protected Fourth Amendment privacy right in order to maintain control over
the suspect.

                                               6
                                 No. 09-50067
                               Consolidated with
                                 No. 09-50186

well within their authority in stepping into Roberts’s apartment. Not only did
they need to maintain control over their suspect, but they had affirmative
information indicating the presence of weapons based on information provided
by the other building residents.
      Officer Spencer reasonably requested identification to verify that the
suspect was who he said he was. Roberts moved into a darkened room to
retrieve his identification. Based on the officers’ knowledge that Roberts had
been seen with a gun and their observation—before stepping into the
apartment—that at least three other individuals occupied the dimly-lit room, the
officers’ were justified in taking a step into the apartment in order to
continuously observe Roberts. “There is no way for an officer to predict reliably
how a particular subject will react to arrest or the degree of the potential
danger.” Chrisman, 455 U.S. at 7. Under this set of circumstances, concern for
officer safety and maintaining control over the suspect justified taking a step
into Roberts’s apartment. “Our purpose is not to examine each act in isolation
and inquire whether the officers could have acted differently.” United States v.
Blount, 123 F.3d 831, 838 (5th Cir. 1997). We are not prepared to “second-guess
the judgment of experienced law enforcement officers concerning the risks” of
this particular situation. Id. (internal quotation marks and citation omitted).
                                        B
      Roberts and Booth raise a second issue: whether the police were justified
in conducting a protective sweep of Roberts’s apartment. “‘[A] ‘protective sweep’
is a quick and limited search of premises, incident to an arrest and conducted to
protect the safety of police officers or others.’” United States v. Gould, 364 F.3d
578, 581 (5th Cir. 2004) (en banc) (quoting Buie, 494 U.S. at 327). The sweep
may occur after the suspect has been arrested. Buie, 494 U.S. at 334. To be


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                                Consolidated with
                                  No. 09-50186

constitutionally valid, (1) “the police must not have entered (or remained in) the
home illegally and their presence within it must be for a legitimate law
enforcement purpose;” (2) “the protective sweep must be supported by a
reasonable, articulable suspicion . . . that the area to be swept harbors an
individual posing a danger to those on the scene;” (3) “the legitimate protective
sweep may not be a full search but may be no more than a cursory inspection of
those spaces where a person may be found;” and (4) the protective sweep “may
last . . . no longer than is necessary to dispel the reasonable suspicion of danger,
and . . . no longer than the police are justified in remaining on the premises.”
Gould, 364 F.3d at 587 (internal citations omitted).
      The district court found that the protective sweep of the apartment was
valid. Appellants argue that the sweep was unjustified because “[h]ad the police
arrested Roberts when he acknowledged his identity, he would not have been in
a position to harm anyone,” and “[n]o reasonable person would have thought that
Roberts could have caused any harm once in custody of the two armed officers
who confronted him at his home.” Appellants also argue that “there was no
testimony that Roberts was violent;” Roberts “never resisted arrest or tried to
flee and was generally cooperative with the officer;” and, that after their entry,
the officers “lacked any reasonable belief or suspicion that the apartment might
be harboring someone who might cause them harm.”
      Notwithstanding Appellants’ arguments to the contrary, the requirements
for a valid protective sweep were met. The officers entered the apartment
pursuant to a “legitimate law enforcement purpose.” Id. The officers were
aware that Roberts had been seen with a firearm; they observed additional
occupants in the darkened living room, a person other than Roberts exiting and
reentering the apartment, and ammunition clips in plain view; and Roberts’s
told them that a pistol was under the couch.          The officers “possesse[d] a

                                         8
                                 No. 09-50067
                               Consolidated with
                                 No. 09-50186

reasonable belief based on specific and articulable facts which, taken together
with the rational inferences from those facts, reasonably warrant[ed] the
officer[s] in believing that the area swept [may have] harbored an individual
posing a danger to the officer or others.” Buie, 494 U.S. 327–28 (internal
quotations omitted). The circumstances on which the officers could reasonably
rely in determining that a protective sweep was necessary were not limited to
the threat posed by Roberts, but the potential threat of any of the other
occupants of apartment where weapons were clearly present.             Moreover,
Appellants do not argue that the sweep was anything more than “a cursory
inspection of only those spaces where a person may hide.” United States v. Mata,
517 F.3d 279, 286 (5th Cir. 2008). Nor do they argue that the sweep continued
longer than necessary. Id. Based on these facts, the protective sweep was valid.
                                        C
      Finally, Appellants challenge the seizure of the firearms.            After
establishing that the officers validly entered the apartment, the district court
held that:
      (1) the items seized were either found through admission of the
      defendant (telling detectives there was a gun under the couch) or
      because they were sitting in plain view during the sweep, (2) that
      the incriminating nature of the guns and ammunition were
      immediately apparent, and (3) that the police had a lawful right of
      access to the guns.
      While the Fourth Amendment generally prohibits warrantless seizures,
see Buie, 494 U.S. at 331, the “plain view” exception allows police to seize items
where: (1) the police lawfully entered the area where the item was located; (2)
the item was in plain view; (3) the incriminating nature of the item was
“immediately apparent;” and (4) the police had a lawful right of access to the
item. Horton v. California, 496 U.S. 128, 136–37 (1990). “The incriminating


                                        9
                                       No. 09-50067
                                     Consolidated with
                                       No. 09-50186

nature of an item is ‘immediately apparent’ if the officers have ‘probable cause’
to believe that the item is either evidence of a crime or contraband. Probable
cause does not require certainty.” United States v. Waldrop, 404 F.3d 365, 369
(5th Cir. 2005) (internal quotation marks and citation omitted). “If . . . the police
lack probable cause to believe that an object in plain view is contraband without
conducting some further search of the object,” then its incriminating nature is
not immediately apparent and “the plain-view doctrine cannot justify its
seizure.” Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (quotations omitted).
       On appeal, Appellants challenge the third prong of the plain-view doctrine,
arguing that there was no reason to believe that the firearms were illegal or
otherwise incriminating.5 They contend that “there is no evidence in the record
that the police knew the criminal history of anyone in the home, thus there could
be no immediate apparent illegal possession of the seized evidence,” and that
“the facts do not support the idea that the mere presence of a gun clip and
ammunition on the entertainment center was illegal.” Because Appellants did
not argue at the suppression hearing that the incriminating nature of the
firearms was not immediately apparent, our review is for plain error. See United
States v. De Jesus-Batres, 410 F.3d 154, 159 (5th Cir. 2005) (noting that plain
error review applies to arguments that a defendant fails to raise at a suppression
hearing).



       5
         We note that the district court conducted its Fourth Amendment analysis of the
weapons, including the gun retrieved from under the couch, under the rubric of the plain-view
doctrine. It is clear that the district court was attempting to fit the search and seizure of the
weapons at issue into existing legal doctrine. Nonetheless, it was error to find the gun under
the couch—which was not in plain view and was retrieved based on Roberts’s admission that
it was located there—to be an item in plain view. However, Roberts and Booth do not
challenge the plain view prong of the district court’s analysis, and thus have waived the error.
Accordingly, we consider only the argument that the incriminating nature of the weapons were
not immediately apparent.

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                                      No. 09-50067
                                    Consolidated with
                                      No. 09-50186

       The weapons were illegal because they were possessed by persons who had
no lawful right to possess them. However, the officers who seized the weapons
did not know at the time of the seizure the criminal histories of Roberts and
Booth that would make their possession of the weapons illegal. Thus, the
incriminating nature of the weapons was not apparent at the moment they were
seized and removed from the apartment.
       Nonetheless, we think the police were justified in temporarily seizing the
weapons under these circumstances. See United States v. Rodriguez, 601 F.3d
402, 408 (5th Cir. 2010). The officers could see four individuals in the darkened
room of the apartment. When Roberts walked back into the darkened room,
Officer Clements saw a pistol magazine and loose ammunition rounds on the
entertainment center where Roberts was headed. At that point, the officers
asked Roberts to step away from the entertainment center, and they secured the
other individuals against a wall, away from the ammunition. Roberts then told
the officers that there was a gun under the couch.6 Though the officers moved
all of the individuals against a wall, the danger posed to the officers by the
firearms did not fully dissipate.          The individuals were not handcuffed or
otherwise incapacitated and in the event of a scuffle could have accessed the
unsecured weapons. “Common sense dictates that a firearm that could be
accessed by someone at the scene and used against officers or others should be
unloaded, and at least temporarily, kept in a safe place.” Id. (citations omitted).
       The officers acted reasonably—the touchstone requirement of the Fourth

       6
         It does not appear that the gun was immediately retrieved and removed from the
house. Rather, the officers conducted a protective sweep and located Booth and another
individual in a bedroom with a shotgun in plain view. Although one might question whether
the better course of action would have been to immediately retrieve and secure the gun under
the couch, the officers’ decision to first move the occupants of the living room away from the
couch and conduct a protective sweep of the remainder of the apartment was reasonable given
their concern that other persons and weapons might be present.

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                                 No. 09-50067
                               Consolidated with
                                 No. 09-50186

Amendment—in seizing the weapons for the safety of themselves and the
apartment’s occupants. Accordingly, such a temporary seizure does not violate
the Fourth Amendment. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32,
37 (2000) (“The Fourth Amendment requires that searches and seizures be
reasonable.”); Ohio v. Robinette, 519 U.S. 33, 39 (1996) (reiterating that “the
touchstone of the Fourth Amendment is reasonableness”). The officers were
entitled to maintain control over the weapons while they completed their
investigation of the individuals inside the apartment. During that investigation,
the officers discovered that Roberts was an unlawful user of a controlled
substance and that Booth had a prior felony conviction, and the illegality of the
firearms became apparent such that permanent seizure was warranted.
                                       III
      For the foregoing reasons, we AFFIRM Roberts’s conviction for violation
of 18 U.S.C. § 922(g)(3) and Booth’s conviction for violation of 18 U.S.C.
§ 922(g)(1).




                                       12
