                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 0183-00-2                   JUDGE RICHARD S. BRAY
                                                JUNE 29, 2000
ADIB AMEER MARZUQ


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellant.

          Donald A. Denton for appellee.


     Indicted for possession of cocaine with intent to distribute,

Adib Ameer Marzuq (defendant) moved the trial court to suppress

inculpatory evidence discovered by police during a "sweep search"

of his residence.   Following a hearing on defendant's motion, the

court concluded the circumstances did not give rise to safety

concerns sufficient to justify the search and suppressed the

related evidence.   The Commonwealth appeals pursuant to Code

§ 19.2-398, arguing that the offending drugs, together with other

evidence, were properly seized during a "protective sweep."     We

agree and reverse the trial court.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                   I.

     "It is well established that on appeal the burden is on the

appellant[, the Commonwealth in this instance,] to show,

considering the evidence in a light most favorable to [defendant],

that the [granting] of a motion to suppress constitutes reversible

error."   Commonwealth v. Tart, 17 Va. App. 384, 390-91, 437 S.E.2d

219, 223 (1993).   "Questions of reasonable suspicion and probable

cause to make a warrantless search are subject to de novo review

on appeal.   'In performing such analysis, we are bound by the

trial court's findings of historical fact unless "plainly wrong"

or without evidence to support them[.]'"       Archer v. Commonwealth,

26 Va. App. 1, 8, 492 S.E.2d 826, 830 (1997) (citations omitted).

     At approximately 11:30 a.m. on October 10, 1999, Richmond

Police Officer Danny Rhodenizer, while investigating a "stolen dog

call," accompanied two "complaining victims" to defendant's

residence.   Aware that "persons at [the] residence" were the

subject of "active warrants," for unspecified offenses allegedly

committed in both Richmond and Henrico County, Rhodenizer knocked

at the "front door" of the home.    "A young lady," later identified

as defendant's aunt, appeared, and Rhodenizer asked "for . . .

somebody that owned . . . a dog."       In response, the aunt woke

defendant and his girlfriend, Rita Raines, then asleep in the "far

[rear] right bedroom," 1 and advised defendant, owner of a boxer


     1
       A floor plan of the residence indicated that the front
door opened into a dining and living room area, directly

                                - 2-
dog, of the inquiry.   Defendant and Raines proceeded to the door,

spoke with Rhodenizer and company and, at Rhodenizer's request,

defendant retrieved the dog from the bedroom.   The "complaining

victims" confirmed that it was not the missing animal, apologized

for any inconvenience and left the residence.

       While defendant was returning the dog to the bedroom, a radio

dispatch provided Rhodenizer with "several names for the active

warrants," including two men, one identified as Adib Marzuq.

Rhodenizer again "tapped on the screen door" and inquired of

Raines whether Adib Marzuq was "at the residence."   Raines once

more summoned defendant from the rear bedroom, and he "presented

his identification" to Rhodenizer, now "inside" the living room of

the home.   During the resulting exchange, Rhodenizer asked, "how

many people were in the house," and defendant responded, "him, Ms.

Raines and the lady on the couch [his aunt]."   Rhodenizer recalled

that defendant then appeared "nervous."

       Defendant again returned to the bedroom, while Rhodenizer,

joined by two additional officers, was "confirming" the warrants.

However, within a "few minutes," Rhodenizer recalled defendant

from the bedroom into the living area and arrested and handcuffed

him.   Rhodenizer then noticed an unidentified man exit the




connected by a straight hallway to three bedrooms and a bath,
with doors clearly visible from the front door. A kitchen, also
visible, was located at the left front of the house.


                                 - 3-
"[s]econd from the rear" bedroom, also located to the right of the

hallway connecting the living and bedroom areas.

     With defendant in custody, Rhodenizer determined to "sweep

the area . . . for weapons, and . . . any other people in the

house," and, accompanied by another officer, "walked back to the

rear of the house."   Upon entry into defendant's bedroom, a "small

package of cocaine" was "immediately apparent . . . on top of the

rear left dresser," and "a large amount" of cocaine was "in plain

view in the [open] top drawer."    The officers then "secured" the

room, directed everyone present into the living area and sought a

search warrant. 2

     When asked at the suppression hearing if fear of "people in

the house" prompted the search, Rhodenizer testified, "I always

have a basis to believe I'm potentially in danger."   In recounting

safety concerns peculiar to the instant circumstances, Rhodenizer

noted that "other people were coming out of the the [sic]

bedrooms," after defendant had represented otherwise, and "also

the fact [he] had completely lost sight of [defendant and Raines]

each time they go back to the bedroom, they close the door."

Thus, Rhodenizer undertook the sweep search "to prevent [him] from

being endangered" by persons and threats he was not "presently

aware of."




     2
       The officers later determined that the house was occupied
by defendant, his aunt, brother, sister and her two children.

                                  - 4-
     In granting defendant's motion to suppress, the trial court

concluded that Rhodenizer "was not [in] the least bit concerned

about his safety, other than to the extent that every police

officer . . . in every circumstance has some concern about his

safety."   The court further reasoned that prompt removal of

defendant from the premises following the arrest would have

allayed any safety concerns.   Relying upon the lessons of Maryland

v. Buie, 494 U.S. 325 (1990), the Commonwealth appeals.

                                  II.

     In Buie, police obtained arrest warrants for Buie and his

alleged accomplice in an armed robbery, proceeded to Buie's home,

entered the residence and apprehended Buie as he "emerged from the

basement."   Id. at 328.   Police then "entered the basement 'in

case there was someone else' down there" and observed and seized a

"red running suit," clothing allegedly worn by a perpetrator of

the robbery.   Id.   In reversing a decision of the Court of Appeals

of Maryland that suppressed the evidence, the Supreme Court

defined a "'protective sweep' . . . [as a] quick and limited

search of premises, incident to an arrest," a "narrowly confined

. . . cursory visual inspection of those places in which a person

might be hiding," and approved the procedure to insure "the safety

of police officers and others."    Id. at 327.

     Consistent with the rationale of Terry v. Ohio, 392 U.S. 1

(1968), and Michigan v. Long, 463 U.S. 1032 (1983), the Court

recognized the "interest of [police] in taking steps to assure

                                  - 5-
themselves that the house in which a suspect is being, or has just

been arrested is not harboring other persons who are dangerous and

who could unexpectedly launch an attack."      Buie, 494 U.S. at 333.

Thus, "as a precautionary matter and without probable cause or

reasonable suspicion," police "could . . . look in closets and

other spaces immediately adjoining the place of arrest[.]"         Id. at

334.       However, a search "[b]eyond that," while permissible,

required "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."      Id.;

see Conway v. Commonwealth, 12 Va. App. 711, 720-21, 407 S.E.2d

310, 315 (1991).

       Here, assuming, without deciding, that the disputed search

extended into an area not "immediately adjoining the place of

arrest," a reasonably prudent officer would have been justified in

the belief that someone hidden in the hallway or adjacent rooms

endangered persons on the scene. 3     The police had been advised

that no fewer than two men residing at the address were the object

of outstanding arrest warrants.      A "nervous" defendant had not

truthfully disclosed to police all persons present in the house,

omitting an unidentified man observed by Rhodenizer exiting a


       3
       Fourth Amendment jurisprudence "turns upon a
'reasonableness' determination" from an objective, rather than
subjective, perspective. Whren v. United States, 517 U.S. 806,
817 (1996).

                                    - 6-
closed bedroom door and disappearing in the hallway area.         All

doors opening into the hall had remained closed during the police

activity in the living area, with defendant opening the door to

his bedroom only to exit and re-enter.       Under such circumstances,

Rhodenizer properly conducted the limited, cursory sweep

countenanced by Buie.

     Accordingly, we reverse the disputed order and remand the

proceedings to the trial court.

                                         Reversed and remanded.




                                  - 7-
Benton, J., dissenting.

     The following principles govern our review:

             When we review a trial court's denial of
          a motion to suppress, "[w]e view the
          evidence in a light most favorable to . . .
          the prevailing party below, and we grant all
          reasonable inferences fairly deducible from
          that evidence." Commonwealth v. Grimstead,
          12 Va. App. 1066, 1067, 407 S.E.2d 47, 48
          (1991). In our analysis, "we are bound by
          the trial court's findings of historical
          fact unless 'plainly wrong' or without
          evidence to support them." McGee v.
          Commonwealth, 25 Va. App. 193, 198, 487
          S.E.2d 259, 261 (1997) (en banc) (citing
          Ornelas v. United States, 517 U.S. 690, 699
          (1996)).

McNair v. Commonwealth, 31 Va. App. 76, 81-82, 521 S.E.2d 303,

306 (1999).    Although we must consider de novo the question

whether the facts prove a seizure in violation of the Fourth

Amendment, we cannot ignore our obligation to defer to the trial

judge's findings of historical fact and inferences drawn from

those facts.    See Reittinger v. Commonwealth, ___ Va. ___, ___,

___ S.E.2d ___, ___ (2000).

     Upon his consideration of the evidence, the trial judge

found that the officer arrested Adib Ameer Marzuq "near the

front door" and had no "right to go . . . into that [bed]room."

The trial judge also specifically found that the evidence failed

to prove an articulable basis upon which the officers could have

reasonably had a safety concern.   He found as follows:

          [I] had the opportunity to observe the
          officer when he testified and to hear what
          the officer said. Having observed the

                                - 8-
             demeanor of the officer, I got the feeling
             that the officer was not the least bit
             concerned about his safety other than to the
             extent that every police officer to some
             extent in every circumstance has some
             concern about his safety.

The record supports those findings.

     The evidence in the record proved that a police officer and

two girls arrived at the door of Marzuq's residence to inquire

about the girls' complaint of a lost or stolen dog.    When

informed by his aunt of the officer's presence, Marzuq and his

female friend came to the door from his bedroom.    After the

officer instructed Marzuq to bring his dog to the door, Marzuq

went to his bedroom and returned with the dog.    Satisfied that

the dog was not theirs, the girls left.

     The police officer remained on the front porch of the

residence and spoke on his radio while Marzuq returned the dog

to his bedroom.    After the officer tapped on the screen door,

Marzuq's female friend again went to the door and spoke to the

officer, who asked, "[Is] Adib Marzuq here at the residence?"

She went to get Marzuq.    When Marzuq returned to the front door,

the officer asked for identification.    After Marzuq went to get

his identification, three officers entered the residence

uninvited.    The officers stood inside the residence within two

or three feet of the front door.    When Marzuq returned to the

front door with identification, the police officers arrested

him, "patted him down, [and] then placed him in handcuffs"


                                 - 9-
immediately inside the front door of the residence.   The

officers then "asked was anybody in the bedroom."   When Marzuq

said the dog was still there, the officers instructed his female

friend to put the dog in the bathroom.

     After the female walked down the hallway to the bedroom and

moved the dog to the bathroom, two of the officers walked down

the hallway and searched Marzuq's bedroom.   The exhibit in the

record establishes that the door of the bedroom is forty-eight

feet from the front door of the house where the police arrested

Marzuq.

     The officer who arrested Marzuq testified that before he

initially went to the door with the two girls, he learned that

"there were persons at the residence that had active warrants in

the City [of Richmond] and in Henrico County."   He did not know

the names of the persons or why the warrants had been issued.

After the two girls left, the officer learned who "the warrants

were for."    Marzuq's female friend testified that the capias had

been issued because Marzuq "didn't go to court."

     The officer testified that after he entered the residence

and arrested Marzuq, he and another officer went to the bedroom

"to sweep the room . . . [for] weapons or . . . other people in

the house."   The officer's testimony cannot be read to suggest

that he entered and swept the room because he believed Marzuq

lied about the presence of another person in the house.     Indeed,

he testified as follows:

                                - 10-
           Q: Did you ask Mr. Marzuq if there was
           anybody else in that room?

           A: I asked if there was anybody in the
           house. They told me no; it was only the
           three of them.

           Q: Are you sure the question was the house
           and not the room?

           A: The room, the house, it possibly could
           have been the room, if there was anyone else
           in the room.

Viewed in the light most favorable to upholding the judge's

factual findings, we must accept that the trial judge, as fact

finder, believed that the officer's inquiry only concerned the

bedroom.

     The officer also testified that neither the aunt nor

Marzuq's female friend caused him any safety concerns.     He did

not go to the bedroom because of any belief of danger.     In fact,

he testified:   "I didn't believe I was in danger.    The point was

not that I believed myself in danger, it was to prevent myself

from being endangered that I'm not presently aware of."     The

officer's testimony establishes that he went into the bedroom

because he believed he was entitled to search the house.

     The facts in Maryland v. Buie, 494 U.S. 325 (1990),

indicate that after two men committed an armed robbery of a

restaurant, the police obtained a warrant to arrest Buie and a

specifically named accomplice.     See id. at 328.   When the police

entered Buie's home to arrest him, Buie was in his basement.

The officers drew their guns and ordered everyone in the


                                 - 11-
basement to come out and show their hands.     Buie came from

"around the bottom of the stairwell and . . . emerged from the

basement."     Id. at 328.   The officers handcuffed him and then

searched the basement for other persons.      See id.   Because

Buie's accomplice in the robbery had not been arrested, the

police entered the basement "to look for the suspected

accomplice or anyone else who might pose a threat to the

officers."     Id. at 329 (emphasis added).

     Approving the search of the basement from which the

officers commanded Buie to leave, the Supreme Court first noted

the following limitation on the search of the residence:

             Possessing an arrest warrant and probable
             cause to believe Buie was in his home, the
             officers were entitled to enter and to
             search anywhere in the house in which Buie
             might be found. Once he was found, however,
             the search for him was over, and there was
             no longer that particular justification for
             entering any rooms that had not yet been
             searched.

Id. at 332-33.    The Court then stated the following rules that

govern a limited search after the arrest:

             [A]s an incident to the arrest the officers
             could, as a precautionary matter and without
             probable cause or reasonable suspicion, look
             in closets and other spaces immediately
             adjoining the place of arrest from which an
             attack could be immediately launched.
             Beyond that, however, we hold that 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



                                  - 12-
            to be swept harbors an individual posing a
            danger to those on the arrest scene.

Id. at 334 (emphasis added).

     Thus, the Supreme Court did not approve the use of

protective sweeps beyond the immediate area of arrest whenever a

person is arrested at a residence.      The Court held "that the

Fourth Amendment would permit the protective sweep [beyond the

area of arrest] . . . if the searching officer 'possesse[d] a

reasonable belief based on "specific and articulable facts

which, taken together with the rational inferences from those

facts, reasonably warrant[ed]" the officer in believing,' that

the area swept harbored an individual posing a danger to the

officer or others."    Id. at 327 (emphasis added) (citation

omitted).   Indeed, the Supreme Court specifically rejected

"[t]he State's argument that no level of objective justification

should be required [to search beyond the spaces immediately

adjoining the place of arrest] because of 'the danger that

inheres in the in-home arrest for a violent crime.'"      Id. at 334

n.2 (citation omitted).

     The record in this case established that the officers

arrested Marzuq at the front door of the residence.      Contrary to

the Buie rule, however, some of the officers then went to an

area of the house beyond that space "immediately adjoining the

place of arrest" to sweep search.    494 U.S. at 334.    They went

from the foyer, down a hallway forty-eight feet long, and into


                                - 13-
the bedroom.   The officers could only do that if they possessed

articulable facts which would have warranted a reasonable

conclusion that "the [bedroom] . . . harbors an individual

posing a danger" to the officers.       Id.    No objective facts

proved that.   All the evidence showed was that a "capias" of

some kind was outstanding.   Indeed, at the suppression hearing,

the prosecutor "concede[d] it is not a warrant of any kind."

     The officer further testified that he also was looking for

weapons.    Nothing in Buie extends the scope of the sweep to a

search for weapons.   Moreover, the officers had no reasonable

basis to believe Marzuq had a weapon.         The prosecutor conceded

at trial that the evidence proved no "factors that . . . this

gentleman is armed and dangerous."

     Based on the evidence and the officer's demeanor, the trial

judge found that the officers "allowed [Marzuq] to go back and

forth, freely, on a number of occasions," that the officers did

not "know . . . whether [the warrant] was for a felony . . . or

misdemeanor . . . [or] for . . . failure to appear . . . of some

type," and that, although the "officer . . . concluded that he

wanted to sweep the area for . . . weapons and anyone else in

the house[,] . . . the sweep seemed to concern only the back

bedroom."   The record supports the trial judge's finding that

the officers had no basis to believe there was a threat to their

safety.    They simply told Marzuq and his female friend they



                                - 14-
intended to search Marzuq's bedroom "like in a traffic stop; I

can search your car."

       As the Supreme Court ruled in Buie, however, a search in a

residence "as an incident to the arrest" must be confined to

"spaces immediately adjoining the place of arrest."     494 U.S. at

334.    That search, designated as a "sweep," is limited to

"spaces . . . from which an attack could be . . . launched,"

id., and, thus, by definition does not include a search for a

weapon.    As the Supreme Court further noted in Buie, no

suspicion arises merely because an arrest occurs in a home, even

if it is an "arrest for a violent crime," because "the existence

of the arrest warrant implies nothing about whether dangerous

third parties will be found in the arrestee's house."     494 U.S.

at 334-35 n.2.      In this case, the trial judge's finding that the

officers had no information that any person in the house was

dangerous is supported by the evidence.     Moreover, the officers

had no basis to believe anyone was in the bedroom.     Although the

prosecutor told the trial judge "that this is a very deminimis

intrusion," the Supreme Court rejected that precise argument in

Buie.     See id.

       As the trial judge found from the evidence, Marzuq was "in

handcuffs" and "near the front door."     Nothing in Buie allows

the officers to search a bedroom forty-eight feet down a hallway

from the place of arrest, when they had no articulable suspicion

that a person who poses a danger to them might be there.      As the

                                  - 15-
judge found, and the prosecutor conceded, the existence of a

capias, standing alone, did not add any fact to the assessment

of danger.    One of the officers who made the search testified

that he was merely acting upon a generalized belief that a

police officer must always be concerned about safety issues.

Thus, he went to the bedroom to look "for weapons and also to

make sure there weren't any other people in the house."

     Having concluded that there were no articulable facts that

any person posed a danger, the judge also found as follows:

             [T]here was no need, nor any right, for the
             officer to go to that bedroom under those
             circumstances, to sweep the area for
             weapons; there being no evidence of [Marzuq]
             having demonstrated any conduct that would
             lead the officer to reasonably conclude that
             he or the other officers were in danger.
             For that reason, I grant the motion to
             suppress.

The trial judge's findings were based upon credibility

assessments of the witnesses and were not plainly wrong.

     For these reasons, I would hold that the facts fail to

support a sweep of the bedroom.    Thus, I would affirm the order

suppressing the evidence.




                                 - 16-
