UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 95-5422

THOMAS RODERICK JACKSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, District Judge.
(CR-94-494-A)

Argued: June 7, 1996

Decided: November 1, 1996

Before RUSSELL, WIDENER, and MICHAEL, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

ARGUED: Christopher Allen Griffiths, ROBERTS & WOOD,
Riverdale, Maryland, for Appellant. Marcus John Davis, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Doug-
las J. Wood, ROBERTS & WOOD, Riverdale, Maryland, for Appel-
lant. Helen F. Fahey, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A grand jury in the Eastern District of Virginia returned a four
count indictment against Thomas Roderick Jackson on November 23,
1994. Count 1 charged possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii)(II). Counts 2 and
3 charged possession of a firearm and ammunition by a convicted
felon in violation of 18 U.S.C. § 922(g)(1). Count 4 charged use of
a firearm in relation to a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1).

On December 23, 1994 Jackson moved to suppress evidence seized
from his apartment pursuant to a search warrant. After a hearing, the
district court denied Jackson's motion on January 20, 1995. At trial
on February 7, 1995, Jackson moved for judgment of acquittal on all
counts. The court denied the motion with respect to Counts 1 and 4
and took the motion under advisement with respect to Counts 2 and
3. After the jury found him guilty on all four counts, Jackson renewed
his motion for judgment of acquittal. The court granted his motion
with respect to Counts 2 and 3, which action is not the subject of this
appeal.

On May 19, 1995 the district court sentenced Jackson to 33
months' imprisonment and three years of supervised release on Count
1 and 60 months' imprisonment on Count 4, to be served consecu-
tively. On appeal, Jackson challenges the protective sweep of his
apartment as an unlawful warrantless search. Jackson's first argument
is that there was no justification for a protective sweep. In the alterna-
tive, he argues that even if the sweep were justified, the officers
exceeded the permissible scope of the sweep by searching in the bath-
room vanity and under the bedroom mattress. We affirm the convic-
tion on Count 1, but vacate the conviction on Count 4 on a ground
which only became available following trial.

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I.

Our review of a district court's denial of a motion to suppress is
governed by two standards. We review the factual findings underlying
the district court's legal conclusions under the clearly erroneous stan-
dard, but we review the district court's legal conclusions de novo.
United States v. Rusher, 966 F.2d 868, 873 (4th Cir.), cert. denied,
506 U.S. 926 (1992).

Jackson was wanted on an outstanding arrest warrant in Prince
George's County, Maryland for attempted murder by stabbing. Fol-
lowing an anonymous tip on August 16, 1994, the FBI fugitive squad
confirmed the existence of the warrant with the Prince George's
County Sheriff's Department and ran a computer check that con-
firmed that Jackson had been convicted of a violent crime in the past
involving a firearm and was considered armed and dangerous. Five
FBI special agents went to the address given by the anonymous caller.
Before going to Jackson's apartment, the agents confirmed with man-
agement that Jackson was indeed the tenant of that apartment.

Special Agent Patrick Gibbons testified that at Jackson's apartment
door, the agents could hear a male voice and other garbled voices.
Agent Gibbons further testified that they could not know how many
people were in the apartment. After the agents knocked on the door,
Katrina Graham opened the door with the chain lock still attached and
the agents identified themselves. As Miss Graham was attempting to
close the door, the agents broke through the chain lock and appre-
hended Jackson.*

While Agents Gibbons and Abbott took care of Jackson, Agents
Dixon-Martinez and Regini were with Miss Graham in the bedroom.
Prior to placing Miss Graham on the bed, the agents frisked the bed
for weapons and found a bag with a white powdery substance in it.
Agent Regini testified that they lifted the mattress rather than feeling
with their hands because it is common to find needles as well as
_________________________________________________________________
*The district court is correct when it states that Miss Graham's intent
in whether she was closing the door to remove the chain lock as she testi-
fied is irrelevant. Whatever her intent, the agents found it necessary to
prevent her from closing the door.

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weapons under mattresses. Agent Regini reported the baggie to Spe-
cial Agent Kroboth, who was the supervisory agent.

Agent Kroboth did a protective sweep of the apartment to make
sure there were no other individuals present. In the bathroom, Kro-
both checked both behind the shower curtain and in the bathroom
vanity. The vanity was three feet tall by three feet wide and three feet
deep. It was Kroboth's experience that people have been found in
vanities that size and smaller. Inside the vanity, he found a triple
beam scale.

The agents called the Fairfax County Police Department. The
police tested the residue in the plastic baggie and it tested positive for
cocaine. Police Investigator Ronquillo Dean then obtained a search
warrant based on the cocaine residue and the triple beam scale. Pursu-
ant to the search warrant, we are told, without dispute, the police
seized a quantity of cocaine powder and cocaine base, cutting and
packaging materials, three scales, a loaded TEC-9 semi-automatic pis-
tol, a .38 Colt revolver, ammunition, and a ballistic vest.

The district court found the protective sweep for additional persons
to be reasonable given that the agents knew that Jackson was wanted
for attempted murder and that he was considered armed and danger-
ous. The court found no evidence that the agents intended to search
the apartment or to use the sweep as a pretext for finding contraband.
The court also found the search of the bed to be entirely appropriate
because the agents had every reason to believe that Miss Graham
might be in league with Jackson and might have a weapon under the
mattress. We are of opinion that the district court's conclusions are
proper.

The Supreme Court has defined a protective sweep as"a quick and
limited search of premises, incident to an arrest and conducted to pro-
tect the safety of police officers or others." Maryland v. Buie, 494
U.S. 325, 327 (1990). The Court also stated that a protective sweep
is "confined to a cursory visual inspection of those places in which
a person may be hiding." Buie, 494 at 327. "[T]here must be articul-
able facts which, taken together with the rational inferences from
those facts, would warrant a reasonably prudent officer in believing

                     4
that the area to be swept harbors an individual posing a danger to
those on the arrest scene." Buie, 494 U.S. at 334.

The officers in this case quickly swept the apartment for individu-
als posing danger to the officers. The officers did not search through
drawers or other areas too small for an individual to hide in. The offi-
cers were not certain how many individuals were in the apartment
because they heard garbled voices at the door, but they were aware
of at least one person other than the defendant in the apartment. The
officer who checked the vanity testified that, in his experience, a per-
son has hidden in a bathroom vanity of that size. The vanity was three
feet tall, three feet wide, and three feet deep. An adult could fit easily
into a space that size. We are of opinion that this sweep satisfies the
Buie definition of a protective sweep.

We now turn to the search of the mattress. The law clearly allows
for the "search of the arrestee's person and the area `within his imme-
diate control'--construing that phrase to mean the area from within
which he might gain possession of a weapon or destructible evi-
dence." Chimel v. California, 395 U.S. 752, 763 (1969). In our case,
the police frisked the space under the mattress for weapons prior to
placing an individual, not the arrestee, on the bed. For the reasons
stated below, we are of opinion that the search was reasonable.

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court upheld the
frisk of a person for weapons based upon the officer's observation of
that individual on the street. Guided by the Fourth Amendment's gen-
eral prohibition of unreasonable searches and seizures, the Court
determined the reasonableness of the officer's actions by balancing
"the need to search [or seize] against the invasion which the search
[or seizure] entails." Terry v. Ohio, 392 U.S. 1, 21 (bracketed inser-
tions in original) (quoting Camara v. Municipal Court, 387 U.S. 523,
537 (1967)). The Court required "specific and articulable facts which,
taken together with rational inferences from those facts, reasonably
warrant that intrusion." Terry, 392 U.S. at 21. "The sole justification
of the search in the present situation is the protection of the police
officer and others nearby, and it must therefore be confined in scope
to an intrusion reasonably designed to discover guns, knives, clubs,
or other hidden instruments for the assault of the police officer."
Terry, 392 U.S. at 29.

                     5
In Michigan v. Long, 463 U.S. 1032 (1983), the Court relied on the
principles of Terry and Chimel to uphold the search of the passenger
compartment of a car for weapons during a traffic stop. The Court
again required "`specific and articulable facts which, taken together
with the rational inferences from those facts, reasonably warrant' the
officer in believing that the suspect is dangerous and the suspect may
gain immediate control of weapons." Long, 463 U.S. at 1049 (quoting
Terry, 392 U.S. at 21). The Court restated that"[a] gun on a table or
in a drawer in front of one who is arrested can be as dangerous to the
arresting officer as one concealed in the clothing of the person
arrested." Long, 463 U.S. at 1048 (alteration in original) (quoting
Chimel, 395 U.S. at 763). Addressing the dissent's concern that the
Court was broadening Terry searches, the Court specifically stated
that the area search approved of was "limited to a search for weapons
in circumstances where the officers have a reasonable belief that the
suspect is potentially dangerous to them." Long, 463 U.S. at 1052-53
n.16.

Maryland v. Buie, 494 U.S. 325 (1990), presented the Court with
the situation of a protective sweep of a suspect's home during the exe-
cution of an arrest warrant. Although a protective sweep is limited to
a search for individuals, not weapons, Buie highlights the Court's
overriding concern for the safety of police officers. In Buie, the Court
recognized that "unlike an encounter on the street or along a highway,
an in-home arrest puts the officer at the disadvantage of being on his
adversary's `turf.' An ambush in a confined setting of unknown con-
figuration is more to be feared than it is in open, more familiar sur-
roundings." Buie, 494 U.S. at 333.

The officers in this case knew that the defendant was wanted for
attempted murder by stabbing, that he had been convicted of a violent
crime with a firearm in the past, and that he was to be considered
armed and dangerous. It is reasonable for the officers to think the
defendant might have one or more weapons hidden in his bed or
under his mattress. Likewise, it is reasonable for the officers to think
that Miss Graham might be aware of the existence of any such weap-
ons. See United States v. Hernandez, 941 F.2d 133, 135-38 (2d Cir.
1991) (upholding search of mattress prior to placing handcuffed
female, not the arrestee, on the bed). To protect themselves, the offi-
cers checked the bed for weapons prior to placing Miss Graham on

                    6
the bed. Rather than run their hands between the mattress and box
spring, the officers lifted the mattress from the box spring to avoid
cutting themselves on any needles or sharp objects that might be
there. This action was reasonable.

II.

Jackson also argues on appeal that the evidence was insufficient to
sustain the conviction under Count 4, use of a firearm in relation to
a drug trafficking crime. The government concedes that Jackson's
conviction on Count 4 should be set aside in light of Bailey v. United
States, 64 U.S.L.W. 4039 (1995). Thus, we vacate Jackson's convic-
tion on Count 4.

Although we affirm Jackson's conviction on Count 1, because he
was sentenced on account of Counts 1 and 4, we vacate the sentence
in Count 1 and remand for resentencing. The government claims that
enhancement under Sentencing Guidelines 2D1.1 will be applicable
on resentencing. We express no opinion on that question and are con-
fident the district court will give it consideration on remand.

AFFIRMED IN PART, VACATED
IN PART, AND REMANDED

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