                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2413
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Cortez L. Williams,                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 14, 2009
                                Filed: August 20, 2009
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                          ___________

JOHN R. GIBSON, Circuit Judge.

       Cortez L. Williams was convicted by a jury of one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and sentenced to forty-
six months’ imprisonment and three years’ supervised release. Before trial, the
district court1 denied Williams’s motions to suppress evidence and to dismiss the
indictment. Williams appeals his conviction, arguing that the district court erred in
denying his motion to suppress the firearm because the officers who arrested him


      1
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri, adopting the Reports and Recommendations of the Honorable
Robert E. Larsen, United States Magistrate Judge for the Western District of Missouri.
impermissibly conducted a protective sweep of his home. Williams also contends that
the district court erred in denying his motion to dismiss the indictment because the
firearm was destroyed before trial in violation of his Fifth Amendment rights. We
affirm.

                                         I.

       On July 26, 2006, six officers from the FBI Violent Crimes Task Force,2
including Investigator Michael Blegen, Detective John Cooley, and Officer Chad
Obersteadt, went to a residence at 8014 Manning in Raytown, Missouri to execute an
arrest warrant for Williams, who had allegedly violated the terms of his parole. The
officers had received a tip that Williams was threatening to burn down houses of
people who lived near him at a previous residence. They also knew that Williams had
been arrested in 2004 for being a felon in possession of a firearm.

       Officer Blegen and several other officers went to the front door of the house
while some officers secured the rear of the house. Blegen knocked on the front door
and announced, “Police!” A child peered out and unlocked the door, but did not open
it. Blegen heard the child calling out for her mom and dad. While this was occurring,
Detective Cooley observed Williams run to the rear door of the house as if to exit,
turn, and go back inside. Williams then went into the living room, which was in the
front of the house, where he was arrested. Williams’s girlfriend, Virginia Brown, and
the child were also present.

       After Williams was handcuffed on the living room floor, several of the police
officers conducted a search, looking for any other individuals in the home who may
have posed a danger to them. Upon entering a bedroom, Officer Obersteadt saw a


      2
       The Task Force is a unit composed of officers from several federal and state
law enforcement agencies.

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black semi-automatic pistol on top of a high bookcase, partially concealed in a pile of
clothing.

       Cooley, a detective with the Kansas City, Missouri Police Department, took
custody of the firearm. When filling out the inventory sheet for the firearm, Cooley
indicated that the firearm was not intended to be used as evidence and answered “yes”
to the question, “May the property room release or dispose of the property according
to the approved procedures?” Cooley stated that he filled out the form in this way
because a decision had been made by state officials that Williams would not be
arrested for possession of an illegal firearm. The firearm was test fired by the Kansas
City, Missouri Police Crime Laboratory. The gun was capable of discharging a
cartridge, but the cartridge case had to be manually removed after it was fired. The
forensic specialist who tested the firearm noted that, in addition to missing the
extractor that would have ejected the cartridge cases, the gun was also missing the
safety lever and the left grip. The firearm was also tested for the presence of DNA;
Williams’s DNA was found in the sample from the weapon. On March 16, 2007,
consistent with the directions on the inventory sheet, the firearm was destroyed.

       Williams was indicted in federal court on May 9, 2007, on one count of being
a felon in possession of a firearm. Williams filed several pre-trial motions, including
motions to suppress the firearm as being the fruit of an unconstitutional search, and
to dismiss the indictment based on the destruction of the firearm. The district court
denied both of these motions, and Williams was found guilty following a jury trial.

                                          II.

                                          A.

      Williams’s first argument on appeal is that the district court erred in denying
his motion to suppress the firearm because it was obtained in violation of the Fourth

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Amendment. “We examine the factual findings underlying the district court’s denial
of the motion to suppress for clear error and review de novo the ultimate question of
whether the Fourth Amendment has been violated.” United States v. Walsh, 299 F.3d
729, 730 (8th Cir. 2002) (internal quotation marks omitted). The parties agree that
there was no warrant for the search of Williams’s home. Therefore, the firearm is
admissible only if the search falls into an exception to the warrant requirement.

       In Maryland v. Buie, the Supreme Court held that a properly limited warrantless
protective sweep may be conducted “in conjunction with an in-home arrest when the
searching officer possesses a reasonable belief based on specific and articulable facts
that the area to be swept harbors an individual posing a danger to those on the arrest
scene.” Maryland v. Buie, 494 U.S. 325, 337 (1990). A protective sweep must be
quick and limited to a cursory look at places where a person could be found. Id. at
335-36.

       The government alleges that the search of the bedroom did not require the
officers to demonstrate any suspicion because the search was incident to arrest and the
bedroom was adjacent to the living room, where Williams was arrested. See id. at 334
(officers may, “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”). The district court made no findings of fact regarding the
proximity of the two rooms or whether the scope of the search complied with this
standard, nor did it rely on this basis for the admission of the challenged evidence.
We need not address this contention on appeal, however, because we conclude that
the officers had the reasonable suspicion required by Buie in order for a protective
search to come within the limits of the Fourth Amendment.

       In coming to the conclusion that the protective sweep was justified by
reasonable suspicion that dangerous accomplices may have been present, the district
court found the following “articulable facts and resulting rational inferences:”

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      (1) [T]he child who came to the door when police first knocked called
      out to “Mom and Dad”, indicating that more than one adult was in the
      house with the child, (2) the officers had prior information that defendant
      was threatening to burn down houses of his neighbors, (3) the officers
      knew that defendant had previously been arrested for possessing a
      firearm after having been convicted of a felony, and (4) officers observed
      defendant attempt to flee from police out the back door and therefore
      were aware that he wished to avoid capture.

From these facts, the district court concluded that the officers had shown that they
acted on the reasonable suspicion that a hidden accomplice or accomplices could pose
a threat to the officers.

       Williams’s attempt to evade arrest by turning back into the home after he saw
the police at the back door, his resultant opportunity to alert a possible accomplice,
and the police officer’s knowledge of his prior conviction for unlawful possession of
a firearm all support the officers’ reasonable suspicion that an unknown individual in
the home could pose a danger to them. See United States v. Jones, 193 F.3d 948, 950
(8th Cir. 1999) (retreat into building “could reasonably have been construed as an
effort to get help or to warn others”); United States v. Davis, 471 F.3d 938, 945 (8th
Cir. 2006) (“prior intelligence indicated that Davis possessed firearms, which could
indicate a danger to officer safety”).

       Williams, however, argues that the search was pretextual because the police
“ha[d] observed the only occupants of the home and they [were] aware that there
[was] no one else in the home.” While hindsight reveals that the officers had already
encountered all of the occupants of the home before conducting the protective sweep,
that information was not apparent to the officers when they initiated the sweep.
Whether the search was a valid protective sweep depends on whether the facts
possessed by the officers and the rational inferences from those facts created a
reasonable suspicion that a dangerous individual may be hidden in the home. The
district court found that the officers heard a child yell “Mom and Dad,” creating the

                                         -5-
inference that at least two, but possibly more than two, adults were present. The
officers had no reason to know that Williams was the child’s father, and thus it was
rational for the officers to infer that one or more adults were still in the home, unseen
by officers.3

        Williams also contends that the search was unreasonable because police had
arrested him and removed him from the scene before the protective sweep occurred.
The district court, however, found that the arrest and protective sweep were
simultaneous. The district court’s finding is not clearly erroneous. Officer Blegen
testified that the search occurred “as Mr. Williams was placed on the ground and was
arrested,” and Detective Cooley’s testimony was that Williams was handcuffed in the
living room when the sweep took place. Although Williams was handcuffed before
the search occurred, a valid protective sweep may be conducted within a reasonable
period of time after the subject of the warrant has been arrested. Davis, 471 F.3d at
944 (protective sweep “may be executed after an arrest if there is a reasonable
possibility that other persons may be present on the premises who pose a danger to the
officers”). For these reasons, we affirm the district court’s denial of Williams’s
motion to suppress.

                                           B.

      Williams also appeals the district court’s denial of his motion to dismiss the
indictment on the ground that the firearm seized in the search of his home was

      3
         At the suppression hearing, the officers described the sweep as “standard
procedure” and a “normal practice.” We caution that a protective sweep may not be
conducted as a matter of course. See Davis, 471 F.3d 938, 946 n.5 (8th Cir. 2006)
(“Buie clearly instructs that protective sweeps must be justified on an individualized
basis.”). “Buie authorizes protective sweeps for unknown individuals in a house who
may pose a threat to officers as they effectuate an arrest; Buie does not allow a
protective sweep for weapons or contraband.” United States v. Waldner, 425 F.3d
514, 517 (8th Cir. 2005).

                                          -6-
destroyed before trial, in violation of the Fifth Amendment. We review his motion
to dismiss the indictment de novo. See United States v. Novak, 217 F.3d 566, 570
(8th Cir. 2000). Suppression by the prosecution of evidence favorable to the defense
is a violation of due process. See Brady v. Maryland, 373 U.S. 83, 87 (1963). “To
establish a Brady violation, the defendant must show the government suppressed
evidence that was both favorable to the defense and material to the issue of guilt or
punishment.” United States v. Farmer, 312 F.3d 933, 936 (8th Cir. 2002). Further,
“[u]nless a criminal defendant can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due process of
law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

       Williams argues that he was deprived of the opportunity to show the jury that
the firearm did not work properly, and that such a demonstration may have been
exculpatory. We have repeatedly rejected the contention that a firearm needs to be
operable in order to support a conviction under 18 U.S.C. § 922. See, e.g., United
States v. York, 830 F.2d 885, 891 (8th Cir. 1987) (“Section 921(a)(3) [defining
‘firearm’] does not require a firearm to be operable.”); United States v. Maddix, 96
F.3d 311, 316 (8th Cir. 1996) (fact that firearm “could not be loaded without using
certain tools” not a bar to conviction for being a felon in possession of a firearm).
Williams does not dispute that the firearm was “designed to . . . expel a projectile by
the action of an explosive,” which meets the statutory definition of firearm. Thus,
whether the firearm was operational is not material. 18 U.S.C. § 921(a)(3); see York,
830 F.2d at 891.

       Williams further argues that the condition of the firearm was material to his
guilt or innocence because its inoperable condition supported the defense theory that
Brown, his girlfriend, purchased and possessed the weapon for protection and did not
care about its condition. However, at trial, Williams was able to cross-examine the
government’s firearms expert regarding the firearm’s condition. Williams also called
Brown as a witness and elicited testimony that she had purchased the gun for her own

                                         -7-
protection. She also testified about its condition and that it did not have a clip or
bullets.

        Williams also suggests that he was prejudiced by his inability to test the firearm
for fingerprints. Williams cross-examined Officer Blegen about the gun, and Blegen
testified that he had not requested that it be tested for fingerprints. Under similar facts
we concluded that there is no Brady violation. See Farmer, 312 F.3d at 936
(“Appellant successfully presented the fact that the gun had not been fingerprinted to
the jury; yet, the jury found a link between [appellant] and the firearm. We cannot
conclude . . . [that the evidence] was favorable to the defendant and material to the
issue of his guilt.”).

       Because we conclude that Williams was not deprived of the opportunity to
present potentially exculpatory material evidence to the jury, we need not reach the
question of bad faith on the part of law enforcement. See Youngblood, 488 U.S. at
58; see also United States v. Aldaco, 201 F.3d 979 (7th Cir. 2000) (no bad faith
imputed to federal government based on municipal police department’s destruction
of evidence). We affirm the district court’s denial of Williams’s motion to dismiss the
indictment.

                                           III.

      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




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