UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4208

ERIC BOLTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-95-89)

Argued: July 11, 1997

Decided: August 26, 1997

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Hunt Lee Charach, Federal Public Defender, Charleston,
West Virginia, for Appellant. Monica Kaminski Schwartz, Assistant
United States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: C. Cooper Fulton, Assistant Federal Public Defender,
Charleston, West Virginia, for Appellant. Rebecca A. Betts, United
States Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Eric Bolton pled guilty, pursuant to a plea agreement, to possession
with intent to distribute 50 grams or more of cocaine base in violation
of 21 U.S.C. § 841(a)(1). During sentencing, the district court
imposed a two-level enhancement pursuant to U.S.S.G.§ 2D1.1(b)(1)
for possession of a firearm and sentenced Bolton to 168 months
imprisonment. Under his plea agreement, Bolton reserved his right to
appeal the district court's ruling on his earlier motion to suppress evi-
dence seized from Bolton's green duffel bag prior to his arrest for
cocaine possession. See Fed. R. Crim. P. 11(a)(2).

On appeal, Bolton now challenges (1) the district court's ruling
refusing to suppress evidence, and (2) his enhancement for possession
of a firearm. We affirm.

I

Eric Bolton's 16-year-old girlfriend, Sheena White, was shot in her
mother's home in an apparent suicide. Bolton called 911, and the
police and paramedics came to the scene. Police found Sheena White
lying on the floor with Bolton standing over her holding their one-
year-old baby. A .380 caliber Browning semi-automatic handgun was
found lying on the floor nearby with the safety engaged. An ammuni-
tion cartridge associated with the weapon was recovered from the
scene, and a shell casing was recovered from the kitchen floor.

Police took Bolton and his son into a back bedroom so that parame-
dics could work on Sheena White and also because Bolton was upset.
The officer who moved Bolton to the back room testified that Bolton
would not have been allowed to leave the back room or the apartment
at that time.

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While in the bedroom, Bolton consented, after having been advised
of Miranda rights, to provide police with a gunshot residue specimen
from his face and hand. Police then asked Bolton whether he would
go to the police station for an interview. Bolton agreed "willingly and
voluntarily." He was not placed under arrest and was free to leave if
he had chosen to do so. As Bolton was leaving to go with the police
to the station, he entered another bedroom and reached to pick up a
green duffel bag which he said he needed because he would not be
coming back. Police told Bolton that the bag would have to stay but
that Bolton could retrieve it later. As Bolton was leaving the house,
as he was traveling to the station, and at the station, he repeatedly
asked for the baby's inhaler. Police told him that other officers would
look for it and bring it to the station. Bolton repeated the request --
with some urgency -- to be allowed to retrieve the inhaler, and at the
station, Detective Hammons told Bolton that other police would look
for the inhaler. Bolton responded, "Okay."

At the police station, Bolton was again given Miranda warnings,
and he acknowledged orally and in writing that he was not under
arrest and was free to leave at any time. Bolton admitted that the
green duffel bag was his. Because Bolton's clothes were to be tested,
as they had blood on them, police informed Bolton that they would
retrieve replacement clothing for him, to which Bolton did not object.
At no time did Bolton place any limits on the police's search for his
replacement clothes and the baby's inhaler.

Detective Mark Carlson went back to the house where the shooting
occurred to look for the baby's inhaler and to find a shirt and pair of
pants for Bolton. Carlson instructed Detectives Ingram and Walker to
find the inhaler and some clothes. Ingram found some medication, but
no inhaler, so Carlson removed a baby bag and the green duffel bag
from the bedroom to the living room to look through them. Carlson
first looked in the green duffel bag for clothing for Bolton. Men's
shirts were visible on top, and as Detective Carlson removed the
shirts, he saw two bundles of money -- the smaller of which was one-
quarter inch thick -- and felt a bag with chunks, soft in places, which
he perceived to be crack cocaine because it was in the presence of a
large amount of cash. The bag in fact did contain crack cocaine
which, with the cash, was seized. A few minutes later, Detective Carl-
son was informed that Sheena White's mother had been contacted and

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that she reported that the baby did not have asthma and had no need
for an inhaler.

In ruling on Bolton's motion to suppress the crack cocaine, the
cash, and statements he made about the inhaler, the district court
found facts, as stated above, and concluded:

           The defendant's repeated requests for the inhaler for the
          baby, even to the point of asking that he be permitted to
          return to the apartment to find it, coupled with the urgency
          with which his requests were made and his response that it
          was okay when told that the officers would search for it and
          find it, invited the officers to make a thorough and exhaus-
          tive search of the premises and the articles within it in order
          to assure that the baby would be properly cared for. After
          the extensive search for the inhaler made by Officer Ingram,
          Detective Carlson, who had been assigned the responsibility
          of finding the inhaler and the clothing for the defendant,
          searched both of the bags through which the other officers
          had not looked.

           Although Detective Carlson did not expect to find the
          inhaler in the green duffel bag, it was objectively reasonable
          to search the bag for the inhaler inasmuch as it had not been
          found elsewhere. In what appears to have been a ruse by the
          defendant, the officers were effectively invited by him to
          make the search that led to the discovery of the money and
          the crack cocaine found in his bag. Moreover, inasmuch as
          the green duffel bag was to be returned to him at the station-
          house, it was reasonable to search the bag for security rea-
          sons and, in addition, to obtain an inventory of its contents
          while in the possession of the officers.

Accordingly, the court entered an order denying the motion to sup-
press.

Bolton contends that when he was removed from the scene to the
back bedroom and later taken to the police station, he was arrested
without probable cause and that his statements about an inhaler were
the direct result of that arrest. In turn, he argues, the discovery of the

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crack cocaine and cash were the result of his statements about the
inhaler. He argues that he was arrested for Fourth Amendment pur-
poses as soon as he was taken to the back bedroom while paramedics
were working on Sheena White.

In moving Bolton to the back bedroom, however, there is no evi-
dence he was ever physically restrained or told that he could not
leave, even though an officer indicated later that he would not have
allowed Bolton to leave at that point in time. A few minutes following
the police's arrival, the paramedics were attempting to revive Sheena
White and to conduct an investigation for a potential homicide. They
therefore needed to exclude everyone from the scene and to secure it.
While Bolton was in the bedroom, police did request from him resi-
due specimens from his face and hand, which he voluntarily provided.
The actions of the police, up to this point, did not constitute an unrea-
sonable search and seizure in violation of the Fourth Amendment.
The actions of police officers fell well within their rights to protect
and secure a crime scene. While the death of Sheena White appeared
at first blush to be a suicide, the gun near the scene had its safety
engaged, and a shell casing was found in the kitchen. Bolton was the
only other person in the house, except for a one-year-old baby, and
therefore the police were reasonably entitled to allay their articulable
suspicion by detaining him temporarily. See Terry v. Ohio, 392 U.S.
1 (1968).

Once this momentary detention was completed, the police officers
asked Bolton to go to the police station for questioning. The district
court found that Bolton did so voluntarily. Moreover, once at the
police station, Bolton was advised orally and in writing that he was
not under arrest and was free to go, and he signed the written form.
Notwithstanding this advice, Bolton chose to remain and answer
questions, and he authorized police officers to continue their search
for the inhaler and for a change of clothing. In these circumstances,
we do not find any error in the district court's decision to deny the
motion to suppress.

II

After the district court refused to suppress the currency, crack
cocaine, and statements, Bolton entered a guilty plea. In connection

                     5
with sentencing, the probation officer recommended a two-level
enhancement for possession of a firearm in connection with the
offense, pursuant to U.S.S.G. § 2D1.1(b)(1). The district court agreed
with the recommendation and sentenced Bolton to 168 months
imprisonment.

At sentencing, the court admitted into evidence two pistols, the
.380 caliber pistol which had killed Sheena White, and a Ruger 9mm
semi-automatic pistol that had been found by Sheena White's mother
and brother when they were cleaning the house several days after
Sheena's death. Sheena White's brother testified that he found the
9mm pistol underneath the baby's dresser in the same room where
Bolton had left his green duffel bag. Sheena White's mother testified
that she never saw Sheena with guns in the house, even though her
mother periodically looked through Sheena's room. Sheena's mother
also testified that she never saw a gun in the room of her other son,
Angelo, although she had later heard that Angelo had once fired a gun
in her house.

The government proffered testimony from various witnesses who
would testify that prior to March 1995, they saw Bolton carrying a
9mm pistol and a .380 caliber pistol in connection with drug dealing.
The government also proffered testimony that Angelo White would
testify that he had seen Bolton with five different guns in the course
of drug transactions. Bolton himself, however, testified that the 9mm
pistol in evidence was Angelo's gun and that he had not seen it since
Angelo had been put in prison some two months before Sheena
White's death.

The court found by a preponderance of the evidence the following
facts relating to Bolton's possession of a gun:

           The court further finds that the defendant was in posses-
          sion of the weapon that was found in Lillian White's apart-
          ment where Sheena White lived, being the Browning .380
          caliber semiautomatic pistol with which Sheena was shot to
          death and the Ruger pistol found about eight days later hid-
          den under the baby dresser. Neither Ms. White nor her
          daughter, Sheena, possessed such weapons. Sheena, how-
          ever, being the defendant's girlfriend and the mother of his

                    6
         child, was aware of the defendant's drug trafficking activi-
         ties and, the court finds, would have been aware of the
         defendant carrying firearms in connection with that activity
         while carrying in and out of the apartment from time to time
         the green duffel bag, in which bag was found the crack
         cocaine and 14,000 dollars in cash on May 22, 1995, the day
         of the shooting.

          The 9 millimeter pistol appears to have been owned by
         Angelo White who, as earlier noted, stated that he did not
         believe that weapon to be owned by the defendant. The
         defendant, however, knew that Angelo White owned the 9
         millimeter weapon and testified that he had seen Angelo
         White breaking the weapon down while in Lillian White's
         apartment. In addition, the box for housing the Ruger was,
         after the shooting, found in the apartment containing a pic-
         ture of Angelo White.

          Angelo White, after his arrest in March of 1995, asked
         Sheena to have the defendant to get the gun out of the
         house, which Sheena, in turn, told the defendant about.
         Once Angelo White was arrested, that weapon was also
         available to the defendant for the purpose of protecting the
         defendant's drug trafficking activities. Both the Browning
         .380 and the Ruger 9 millimeter were in the defendant's
         possession in connection with the drug offense of conviction
         in this case.

The district court heard all of the evidence and weighed the credi-
bility of both Bolton -- who claimed to never have possessed any
weapons -- and of the Whites -- who felt that Bolton was a mur-
derer. There was no dispute that the .380 was there on the day of
Sheena's shooting. There was also evidence that Sheena never owned
or had a gun in her house. And there was ample evidence that people
had seen Bolton with a .380 in the course of his drug dealing activi-
ties. The district court could reasonably conclude that Bolton pos-
sessed the .380 found near Sheena's body, and we cannot conclude
that its factual findings were clearly erroneous.

AFFIRMED

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