                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4853


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

BRIAN PORTIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00034-RLW-1)


Argued:   December 10, 2010              Decided:   January 13, 2011


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Charles David Whaley, Richmond, Virginia, for Appellant.
Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee. ON BRIEF: Jennifer M. Newman,
Richmond, Virginia, for Appellant.     Neil H. MacBride, United
States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      This    appeal       arises    from     a     district       court’s      denial    of

defendant Brian Portis’s motion to suppress evidence recovered

from his home.         Although Portis consented to the warrantless

search of his residence, he argues that his consent was tainted

by   officers’    earlier       sweep    of       the    premises,      which   he   claims

violated his Fourth Amendment rights.                     For the reasons described

below, we disagree and affirm.



                                             I.

                                             A.

      We briefly summarize the relevant facts.                          On June 6, 2007,

Officer      Edward    Aeschlimann        and       his       partner,    Officer     Corey

Watson, pulled Portis over for running a stop sign near his

Richmond, Virginia home.                Portis was driving a brown pick-up

truck with a ladder rig.                 When running his information, the

officers     learned       that     Portis’s       license       had     been   suspended.

Portis    consented        to   a   search    of        his   vehicle,     in   which    the

officers     found     a    loaded      magazine.              Portis    explained      that

although he had no guns in his car or home, his mother had

firearms that he sometimes used.                   He also mentioned that he was

a former Army infantryman and an “expert marksman.”                              J.A. 41.

The traffic stop ended without incident.



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      One week later, on the evening of June 13, 2007, Officers

Aeschlimann and Watson received a dispatch alerting them to a

shooting in their area “involving an individual in a brown pick-

up    truck   that      had    a     ladder    rig.”        Id.    at      44.     Officer

Aeschlimann contacted Detective Bill Brairton, who had phoned in

the     dispatch,       and        learned     that       Detective        Brairton       was

investigating       a   homicide,       for       which   Portis     was    a    person    of

interest.

      Detective Brairton reported that during his investigation

he had spoken with a woman named Diana Rameriz, who claimed that

Portis owned several guns--including at one point an assault

rifle--and had threatened her son with a firearm.                                Detective

Brairton explained that Rameriz had contacted him again, earlier

on June 13, to report that Portis had just shot at her son.

Detective Brairton further stated that Rameriz’s son had not

been hit and would seek out Officers Aeschlimann and Watson when

they arrived on the scene.                    Detective Brairton also informed

Officer Aeschlimann that Portis had a picture of himself with an

assault rifle taped to his front door and could be “heavily

armed.”    Id. at 46.

      Equipped    with        this   information,         Officers      Aeschlimann       and

Watson called for backup and arrived at Portis’s house at 6:52

p.m.,     along   with        another    two-person         police      vehicle.          The

officers found Portis standing in the doorway of his home and

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another,         unidentified       man     standing             near    the   front     steps.

Officer Aeschlimann shouted “Hey Brian.”                                Id. at 50.       Portis

responded by retreating into his home.                            At that point, Officer

Aeschlimann drew his weapon and commanded Portis to exit his

home.    About fifteen seconds later, Portis complied, raising his

hands to show he was not armed “and walk[ing] down the front

steps as instructed.”           Id. at 51.

      The officers approached Portis and the other man, placed

them both in handcuffs, and patted Portis down to make sure he

was   not     armed.       Officer        Aeschlimann            then    instructed     another

officer, Officer Gregory Hamilton, to “conduct a sweep of the

house    to      make   sure   no    one    else       was       inside.”      Id.      Officer

Hamilton      swept     the    house      for    two       minutes,      accompanied      by    an

officer-in-training.                The    two       did     a    “visual      scan”    of     the

surroundings and did not open any closets or go through any

drawers.         Id. at 94.      Officer Hamilton reported that he had not

seen any weapons but had observed a metal spoon, with what he

thought was cocaine residue, sitting on the floor of a bedroom.

      Officer Watson read Portis his Miranda rights at 7:00 p.m.

Portis then admitted to Officer Watson that he had a firearm in

his home.          During Officer Watson’s conversation with Portis,

Rameriz’s        son--the      alleged      shooting             victim--arrived        at     the

scene,      as    did   Portis’s       roommate.             After       speaking      with    the



                                                 4
alleged victim, the officers concluded that they did not have

probable cause to arrest Portis.

      The officers released Portis and the other individual from

handcuffs but informed them that they could not leave, as the

officers were still investigating the cocaine residue and gun in

Portis’s      home.        Officer    Aeschlimann        asked     Portis    and   his

roommate if the officers could search the home, noting that he

thought that “the fact there was drug paraphernalia in plain

view,” and that Portis had admitted he had a firearm would, in

any event, be sufficient to obtain a search warrant.                        Id. at 60.

Portis and his roommate consented to the search.                       Portis also

described to the officers where the gun was located and admitted

that he had drug paraphernalia in his bedroom, which he used to

smoke marijuana two or three times a week.                       Officers recovered

the gun and drug paraphernalia.

                                           B.

      On January 24, 2008, Portis was charged with possession of

a   firearm    as     an   unlawful    user     of   controlled     substances,     in

violation      of     18     U.S.C.    §   922(g)(3),       and     unlawful       drug

possession, in violation of 21 U.S.C. § 844.                       Portis moved to

suppress the evidence recovered from his home, arguing that his

consent to the search was tainted by the officers’ allegedly

unlawful    initial        entry.     Officers       Aeschlimann,    Hamilton,      and

Watson testified at an April 2008 suppression hearing.

                                           5
     After hearing from both sides, the district court denied

the motion to suppress.              Portis was found guilty on both counts

in September 2009. *          This appeal followed.



                                            II.

     On appeal, Portis again challenges the officers’ initial

sweep of his home, urging that the search violated his Fourth

Amendment rights.         We disagree.           In light of the facts presented

at the suppression hearing, the brief visual scan of Portis’s

residence was justified as an appropriately limited protective

sweep.

     When reviewing an appeal from a district court’s denial of

a motion to suppress, “we review the court’s factual findings

for clear error and its legal determinations de novo.”                                   United

States    v.    Wardrick,      350   F.3d     446,      451     (4th    Cir.     2003).       A

protective sweep of a defendant’s home is justified if there are

“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     .   .     .   scene.”

     *
       We vacated Portis’s initial conviction, citing confusion
surrounding what he believed to be a conditional guilty plea.
See United States v. Portis, 332 F. App’x 870, 872 (4th Cir.
2009). We did not reach the merits of his present claim, and he
has since been found guilty after a bench trial.



                                             6
Maryland v. Buie, 494 U.S. 325, 334 (1990); see also United

States v. Baker, 577 F.2d 1147, 1152 (4th Cir. 1978) (finding

that a protective sweep of a defendant’s home was justified when

the defendant was arrested in front of it).

       The vast majority of circuit courts to have considered the

issue   have     upheld    protective         sweeps   conducted       in    non-arrest

situations      in    which    officers       are   lawfully     on    a    defendant’s

property.       See, e.g., United States v. Miller, 430 F.3d 93, 98

(2d Cir. 2005) (finding “that a law enforcement officer present

in a home under lawful process . . . may conduct a protective

sweep when the officer possesses” articulable facts as outlined

in Buie); United States v. Gould, 364 F.3d 578, 584 (5th Cir.

2004)    (en    banc)     (“[A]rrest        is   not   always,    or       per   se,   an

indispensable        element    of    an    in-home    protective      sweep.”);       see

also    State    v.    Davila,       999    A.2d    1116,   1127-29        (N.J.   2010)

(collecting cases).           Although we have not yet spoken directly to

this point, on the undisputed facts, we are persuaded that the

officers’ brief walk-through of Portis’s home was justified.

       As detailed at the suppression hearing, the officers had

reason to believe that Portis had firearms in his house and had

just shot at someone.           They were also aware that Portis was both

a person of interest in a homicide investigation and an army-

trained “expert marksman.”                 The officers had seen at least one

other individual on the premises and did not know what Portis

                                             7
had done during the period in which he retreated inside his home

and disappeared from view.       They had reason to fear that Portis

may have been conferring with an armed confederate or hiding a

gun to which he would have had easy access to shoot at the

departing officers, in the event that they did not arrest him.

     These   specific    facts     were    sufficient    to    justify   a

reasonable   officer’s   concern    that   Portis’s     home   “harbor[ed]

other persons who [we]re dangerous and who could unexpectedly

[have] launch[ed] an attack.”       United States v. Green, 599 F.3d

360, 376 (4th Cir. 2010) (quoting Buie, 494 U.S. at 333); see

also Mora v. City of Gaithersburg, 519 F.3d 216, 226 (4th Cir.

2008) (upholding a protective sweep when officers “did not and

could not fully know the dimensions of the threat they faced”).

Portis’s assertion to the contrary lacks merit.

     Significantly, the officers did not conduct an intrusive

investigation during their initial entry or linger in Portis’s

home longer than necessary.      They instead confined themselves to

a two-minute sweep of places in which a dangerous individual

might have been hiding.      On these facts, their limited search

was justified and did not taint Portis’s subsequent consent.



                                   III.

     We have reviewed Portis’s remaining arguments and find them

to be without merit.     For the foregoing reasons we affirm the

                                    8
district   court’s   denial   of   Portis’s   motion   to   suppress   the

disputed evidence.

                                                                AFFIRMED




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