                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-1175
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Missouri.
Emmanuel Jones,                          *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: September 14, 1999

                                   Filed: October 13, 1999
                                    ___________

Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      BOGUE,1 District Judge.
                              ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       A jury convicted Emmanuel Jones on three counts of being a felon in possession
of guns and ammunition, see 18 U.S.C. § 922(g)(1), and one count of possessing an
unregistered gun, see 26 U.S.C. § 5861(d). Mr. Jones appeals, asserting that the trial
court erred in refusing to excuse two venire members for cause after they expressed a
belief that police officers are more credible than other witnesses, in admitting seized

      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
guns and a confession into evidence, and in allowing rebuttal testimony regarding the
ownership of the guns.

       We agree with the trial court that the search that revealed the firearms and led
to the confession was not unlawful, and that the rebuttal testimony was proper. We
reverse the conviction, however, because one of the impaneled jurors was biased and
should have been struck for cause.

                                           I.
       When Mr. Jones brandished a sawed-off shotgun at St. Louis detectives who
were assisting in the arrest of two other men, the detectives gave chase and
apprehended Mr. Jones in an apartment building. The officers also seized the shotgun,
which Mr. Jones had dropped, and an AK-47 rifle that they had noticed behind the
screen door of the apartment building during their pursuit. In the process of conducting
a protective sweep of the building, the officers obtained the consent of Demisha
Rogers, an acquaintance of Mr. Jones, to search the apartment that she shared with her
mother. That search uncovered several guns in the mother's bedroom closet. Mr. Jones
later confessed to owning all of the guns.

      Mr. Jones contends that but for the protective sweep and the search, both of
which he asserts were unlawful, there would have been no discovery of the guns in
question and no confession, and therefore that the guns and the confession should not
have been admitted into evidence. The government maintains that the protective sweep
was legally justified and that the search was conducted pursuant to a valid consent.

       It seems to us that the protective sweep was permissible under the principles
outlined in Maryland v. Buie, 494 U.S. 325 (1990). In that case, the Court held that
the fourth amendment permits a protective sweep in connection with an arrest if an
officer could have a reasonable belief, based on articulable facts, that the area to be
swept might well harbor an individual posing a danger to those at the arrest scene. Id.

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at 337. Since Mr. Jones brandished a shotgun, and the pursuing officers came across
a rifle in the building into which he fled, we believe that the trial court was correct in
holding that the officers could reasonably have been concerned for their safety. Mr.
Jones's quick retreat into the building could reasonably have been construed as an effort
to get help or to warn others, and the rifle could certainly have signaled to a reasonable
mind the presence of another potential assailant.

       We are not persuaded by Mr. Jones's argument that once he was arrested and the
guns were seized, the officers had no further reason to feel endangered. There was still
the reasonable possibility that other assailants could be inside the apartment building.
In addition, the fact that the two immediately obvious guns had been confiscated did
not necessarily mean that no additional guns were present in the building. Indeed, we
believe that the presence of the two guns found (one a rifle and the other an illegally-
modified shotgun) made a heightened case for the possibility that additional guns were
on the premises. The fact that armed police officers were outside, on the other side of
the building, also falls far short of eliminating the possibility of danger from armed
assailants within the building. See United States v. Horne, 4 F.3d 579, 586-87 (8th Cir.
1993), cert. denied, 510 U.S. 1138 (1994).

                                             II.
       We also believe that the search that the officers conducted was lawful because
Ms. Rogers, who was living in the relevant apartment with her mother, consented to it.
Mr. Jones maintains that the consent was not voluntary because Ms. Rogers was only
eighteen years old and was holding an infant in her arms at the time that she spoke with
the officers. The trial court specifically found, however (in adopting the proposed
findings of a magistrate judge), that the officers did not employ threats or coercion
when they asked for permission to search the apartment, and we see nothing clearly
erroneous in this finding. It is well established that an adult co-occupant of a residence
may consent to a search, see, e.g., United States v. Reeves, 730 F.2d 1189, 1193-94


                                           -3-
(8th Cir. 1984), and we see nothing in the totality of the circumstances that compels us
to find that Ms. Rogers's consent was involuntary.

      Mr. Jones also contends that the trial court erred in allowing rebuttal testimony
regarding the ownership of the guns in the bedroom closet. We find Mr. Jones's
argument to be without merit, and if error was committed, moreover, it was harmless.

                                           III.
       Mr. Jones argues that the trial court erred when it failed to excuse Juror No. 18
and Juror No. 27 for cause, after they expressed a belief that police officers are less
likely to lie than other witnesses. We note at the outset that of the five jurors whom
Mr. Jones challenged for cause, three were struck by the trial court. Mr. Jones later
exercised all of his peremptory challenges, using one to strike Juror No. 18. Juror
No. 27, however, ultimately sat on the jury.

       Mr. Jones and the government differ on whether Juror No. 18 adequately
rehabilitated herself during voir dire, but we need not decide this issue. We have held
that there can be no reversible error if a defendant exercises a peremptory challenge to
remove a juror who has been challenged for cause. See United States v. Cruz, 993
F.2d 164, 168-69 (8th Cir. 1993); see also United States v. Horsman, 114 F.3d 822,
825 (8th Cir. 1997), cert. denied, 118 S. Ct. 702 (1998).

       We believe, on the other hand, that Mr. Jones demonstrated that Juror No. 27
was impermissibly biased. Mr. Jones points to an exchange during voir dire in which
one juror stated that she tended to think that police officers are "less likely to be
untruthful or lie than someone else." At that point, the defense asked if any other jurors
agreed with the first juror. Juror No. 27 raised her hand and remarked, "Because of the
oath and because of the office that they do hold and they do have respect in the
community, ... I would tend to think that they would be doing the facts as they have
seen them, so therefore I would think they would be truthful."

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       At the end of voir dire, Mr. Jones challenged both jurors for cause. The trial
court struck the first juror, noting that she stated that she believed that police officers
are "less likely to lie" than other members of the community. The trial court denied the
challenge to Juror No. 27, however, intimating that she did not compare the credibility
of police officers to that of other citizens, remarking that she simply indicated that the
police would "tell the facts as they saw them," and holding that nothing in "the totality
of her responses" justified excusing her for cause.

       We review decisions denying challenges for cause for an abuse of discretion.
See United States v. Amerson, 938 F.2d 116, 118 (8th Cir. 1991). We note, first of all,
that we agree with the trial court's decision to remove the first juror, who believed that
police officers are "less likely to be untruthful or lie than someone else." The
credibility of the police officers played an important role in the government's case, and
Mr. Jones was entitled to jurors who were not "predisposed to believe [that] the
testimony of the officers is inherently more credible than that of other witnesses."
Amerson, 938 F.2d at 118. It seems to us that the trial court should have struck Juror
No. 27 for the same reason.

       To begin with, Juror No. 27 identified herself when the defense asked if anyone
shared the first juror's view that police are "less likely to be untruthful or lie than
someone else." Juror No. 27's subsequent explanation for identifying herself,
moreover, did nothing to rehabilitate her. In saying that she thought that it was relevant
that police officers take oaths, hold public office, and command respect, she was
describing qualities that she believed set police officers apart from others in the
community. Average citizens do not take an oath to protect and serve, do not hold an
office, and do not command exceptional respect in the community. The unmistakable
inference is that Juror No. 27 would find the testimony of police officers inherently
more credible than the testimony of other citizens.




                                           -5-
       Nor did Juror No. 27 say anything that might have rehabilitated her. She spoke
on only one other occasion during voir dire, and that was simply to recite her
occupation and marital status. It is true that at the beginning of voir dire, she did not
respond to a question that the trial court posed with respect to whether anyone had a
relative or close friend who was employed by a law enforcement agency and would,
as a result of that relationship, give more or less weight to a law enforcement officer's
testimony. But this question asked only if the members of the venire would be biased
because of a relationship with a law enforcement officer, not for some other reason.
Furthermore, the exchange between the defense and Juror No. 27 occurred subsequent
to the general introductory question, and involved questions directly posed to her, in
response to which she specifically indicated a bias favoring testimony by police
officers. We note, finally, that the first juror did not respond to the general question
either, yet the trial court found cause to excuse her.

       The government notes that Amerson gives the trial court a choice when a juror
expresses a bias in favor of testimony by police officers: The court may excuse the
juror for cause, " 'or by instructions and additional questions convince the [juror] that
there is no special credence due the testimony of [police officers],' " Amerson, 938 F.2d
at 118, quoting United States v. Evans, 917 F.2d 800, 806 (4th Cir. 1990), overruled
in part on other grounds, United States v. Lancaster, 96 F.2d 734, 736 (4th Cir. 1996)
(en banc), cert. denied, 519 U.S. 1120 (1997). In our case, however, the trial court
gave no additional instructions to, and asked no additional questions of, Juror No. 27
after she revealed her bias. All relevant instructions and questions from the trial court
to Juror No. 27 during voir dire came prior to her statement of bias, and evidently did
not convince her that no special credence is owed to the testimony of police officers.

       Having concluded that the trial court erred in failing to strike Juror No. 27 for
cause, we are required to reverse Mr. Jones's conviction. "Trying a defendant before
a biased jury is akin to providing him no trial at all. It constitutes a fundamental defect
in the trial mechanism itself." Johnson v. Armontrout, 961 F.2d 748, 755 (8th Cir.

                                           -6-
1992); cf. Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). We note that the
government makes no suggestion that the defense chose not to remove Juror No. 27
with a peremptory challenge for strategic reasons, that is, to build in error in the trial.
Nor does the government argue that the error was harmless or that federal common law
required Mr. Jones to use a peremptory challenge to remove Juror No. 27 or lose his
right to object to her presence on the jury.

                                          IV.
      Although we agree with the trial court that the seized guns and the confession
were admissible into evidence, and that the rebuttal testimony in question was proper,
we believe that the trial court improperly failed to strike Juror No. 27 for cause.
Mr. Jones's convictions are therefore reversed and the case is remanded for a new trial.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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