                                                                                FILED
                           NOT FOR PUBLICATION                                  MAY 06 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 10-30205

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00052-RRB-1

  v.
                                                 MEMORANDUM*
MAURICE MARQUETTE MACKEY,

              Defendant - Appellant.


                  Appeal from the United States District Court
                            for the District of Alaska
                Ralph R. Beistline, Chief District Judge, Presiding

                             Submitted May 4, 2011**
                                Anchorage, Alaska

Before: ALARCÓN, GRABER, and BYBEE, Circuit Judges.

       Defendant Maurice Marquette Mackey moved to suppress evidence of drug

trafficking obtained after federal agents conducted a protective sweep of his

residence following his arrest. After two evidentiary hearings on the matter, the

district court denied the motion. Defendant timely appeals that ruling.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. Fed. R. App. P. 34(a)(2).
      We review de novo the district court’s denial of a motion to suppress.

United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011). We review the

district court’s factual findings for clear error. Id.

      We agree with the district court that the agents’ search was reasonable in the

circumstances, and we affirm. See Maryland v. Buie, 494 U.S. 325, 331 (1990)

("[T]he Fourth Amendment bars only unreasonable searches and seizures."). Four

agents came to Defendant’s house on a very cold day, armed with a warrant for

Defendant’s arrest for distributing crack cocaine. When Defendant opened his

front door in answer to the agents’ knock, the agents smelled burning marijuana,

and one of them heard what sounded like footsteps coming from inside the house.

After taking Defendant into custody on the front porch of the house, not knowing

who or what was inside that might harm them, two agents made a quick security

sweep of the house, looking only in locations where a person could hide.

      Immediately upon entering, they saw, in plain view, a pile of money and a

bag of marijuana. They then heard a rustling noise coming from the rear bedroom

and went to investigate. In that bedroom they found two adult pit bull dogs,

several boxes of ammunition covered in white powder, and more powder on the




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closet shelf. On the basis of those observations,1 the agents obtained a search

warrant, which led to the discovery and seizure of the evidence that Defendant

wants to suppress.

      When officers lawfully arrest a person immediately outside his home, they

may search the interior of the home so long as they have a "reasonable suspicion of

danger." United States v. Paopao, 469 F.3d 760, 766 (9th Cir. 2006). That is all

that happened here. After hearing what they thought were footsteps from inside

the house, and recognizing their vulnerability while standing on the porch next to

two large windows, to ensure their safety the officers reasonably entered the home

to make a brief survey of the places where another person could hide.

      Even if the agents exceeded the bounds of a protective sweep by entering the

rear bedroom, they had reason to do so, having heard a rustling noise coming from

behind the bedroom door. See Buie, 494 U.S. at 334 (holding that officers may

search beyond the area immediately adjoining the place of arrest whenever

"articulable facts which, taken together with the rational inferences from those


      1
        The agents also testified that they observed the butt of an assault rifle
sticking out of the bedroom closet. Defendant testified that he had hidden the gun
underneath two quilts so that the agents could not have seen it. We agree with the
district court that, even excluding from our consideration the observations made of
Defendant’s closet, the agents had enough evidence to establish probable cause for
the search warrant based on what they observed in the rest of the house. See
United States v. Forrester, 512 F.3d 500, 513 (9th Cir. 2008).
                                          3
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"). In these

circumstances, the agents’ legitimate interest in protecting their safety outweighed

the intrusion into Defendant’s privacy. They did not violate the Fourth

Amendment.

      AFFIRMED.




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