                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-2539
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Arkansas.
John Sakrekov,                          *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: March 31, 2010
                                Filed: April 29, 2010
                                 ___________

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
                        ___________

PER CURIAM.

       In 2009, John Sakrekov conditionally pleaded guilty to being a felon in
possession of a firearm, and was sentenced to 37 months in prison. In this direct
criminal appeal, he challenges the district court’s1 denial of his motion to suppress
evidence from an October 2007 search of his residence. On appeal, Sakrekov’s
counsel has moved to withdraw and has filed a brief under Anders v. California, 386
U.S. 738 (1967), in which she argues that a pre-warrant sweep of Sakrekov’s
residence violated the Fourth Amendment; that a pre-warrant statement made by

      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
Sakrekov was involuntary because it was triggered by the illegal sweep, and because
Sakrekov was under the influence of methamphetamine; and that without the
statement and the items observed during the sweep, the affidavit submitted in support
of the search warrant for Sakrekov’s residence did not contain sufficient probable
cause. In a pro se supplemental brief, Sakrekov asserts that the search warrant should
not have been issued, and that his trial counsel should have presented certain
information at the hearing on the motion to suppress.

       We review for clear error the district court’s factual findings underlying the
denial of the motion to suppress, and de novo the court’s legal conclusion that the
Fourth Amendment was not violated. See United States v. Bell, 480 F.3d 860, 863
(8th Cir. 2007). As to the protective sweep, we review for plain error the district
court’s determination that a sweep was permissible, because Sakrekov did not raise
that issue in his motion to suppress, and he conceded it at the motion hearing. See
United States v. Cardenas-Celestino, 510 F.3d 830, 833 (8th Cir. 2008) (this court has
not decided whether failure to raise suppression matter in timely pretrial motion
precludes plain error review; assuming without deciding that plain error review is
available). Based on the evidence presented at the motion hearing, we conclude that
the district court did not plainly err in determining that a protective sweep was
authorized in order to prevent the destruction of evidence pending the application for
the search warrant. Cf. United States v. Jansen, 470 F.3d 762, 764-65 (8th Cir. 2006)
(police officers are able to conduct protective sweep search pending application for
search warrant where there is risk that evidence will be destroyed; pre-warrant search
did not violate defendant’s Fourth Amendment rights where officer observed
marijuana pipe and “marijuana stem” in plain view, and concluded that he needed to
secure trailer before leaving to get warrant to make sure no one else was present and
to prevent destruction of drug evidence); see also Cardenas-Celestino, 510 F.3d at 833
(plain error must be one that is clear and obvious). Further, we conclude that the
scope of the protective sweep was not overly broad. See Jansen, 470 F.3d at 765



                                         -2-
(quick search limited to areas in which person could be hiding did not violate
defendant’s Fourth Amendment rights).

      We also review for plain error Sakrekov’s claim that his statement was
involuntary because he was under the influence of methamphetamine, see Cardenas-
Celestino, 510 F.3d at 833, and we conclude that the record does not supports that
claim, see United States v. Wright, 706 F.2d 828, 830 (8th Cir. 1983) (per curiam)
(custodial statements are not per se involuntary because of intoxication; standard is
whether, by reason of intoxication or other factors, defendant’s will was overborne or
whether his statements were the product of rational intellect and free will).

      Further, because the protective sweep did not violate Sakrekov’s Fourth
Amendment rights, we conclude that there is no merit to his claims that his statement
was tainted, and that the search warrant was not supported by probable cause. See
United States v. Terry, 305 F.3d 818, 822-23 (8th Cir. 2002) (this court reviews
determinations of probable cause de novo; describing circumstances where probable
cause exists).

      Finally, to the extent Sakrekov is arguing that his trial counsel was ineffective,
he should raise this argument in a 28 U.S.C. § 2255 motion. See United States v.
Cain, 134 F.3d 1345, 1352 (8th Cir. 1998).

       Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issue for appeal. Accordingly, we affirm, and we
grant counsel’s motion to withdraw.
                       ______________________________




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