                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           FEB 2 1999
                          TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk
 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 98-6002
 v.                                                (D.C. No. 96-CR-108)
                                                      (W. Dist. Okla.)
 LEE ARTHUR TUCKER,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BARRETT, and TACHA, Circuit Judges.


      Lee Arthur Tucker entered a conditional guilty plea to one count of

possession with intent to distribute crack cocaine. He appeals the denial of a

motion to suppress evidence procured from a search of his residence. We affirm.

      On May 15, 1996, a team of FBI agents and Oklahoma City Police officers

arrived at Mr. Tucker’s residence to serve an arrest warrant on him. The arrest

team was one of several such teams serving warrants on members of a large scale

drug conspiracy. Officers were told that the suspects had a history of violent


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
behavior and were known to have firearms. When Mr. Tucker appeared at the

front door, he was instructed to open the locked metal-barred door. He

disappeared from sight when he went in search of the key.

      The officers heard rustling noises when Mr. Tucker was out of sight but

could not determine if there were other individuals inside the residence. Mr.

Tucker finally returned and unlocked the door. Officers ordered him to lie down

and began taking him into custody while several other officers began a protective

sweep of the residence for other individuals who might pose a danger. In one

room, the officers moved a sofa out from the wall but found no one hiding there.

Instead, they observed a pile of cocaine. On the kitchen counter, the agents

observed a set of scales, a razor blade, an ammunition clip, and a residue of white

power. They discovered a sleeping infant in the master bedroom and a

bulletproof vest on a shelf in the master bedroom closet. They did not touch,

move, or seize these items. They completed the protective sweep and removed

Mr. Tucker to their vehicle.

      The officers contacted Mr. Tucker’s sister-in-law and waited for her to

arrive to take custody of the sleeping infant. Meanwhile, Agent Tsiumis left the

scene to obtain a search warrant, based in large part on the evidence observed

during the sweep.

      In a denial of a motion to suppress, we accept the trial court’s findings of


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fact, unless clearly erroneous, and consider the evidence in the light most

favorable to the government. The reasonableness and scope of the search are

matters of law we review de novo. United States v. Smith, 131 F.3d 1392, 1396

(10th Cir. 1997). The Fourth Amendment allows officers conducting an in-home

arrest of an individual to conduct a warrantless protective search of that dwelling

when they have a reasonable suspicion that “the house is harboring a person

posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325,

336 (1990); United States v. Flores, 149 F.3d 1272, 1278 (10th Cir. 1998). The

Supreme Court held in Buie that it was not necessary for officers to show

“probable cause to believe that a serious and demonstrable potentiality for danger

existed.” 494 U.S. at 336. An officer must instead possess a “reasonable belief

based on specific and articulable facts” that there might be such a threat. Id. at

337. In evaluating the threat, the Court considered the disadvantage officers

faced in being “ambushed” in the confined setting of the arrested suspect’s home.

Id. at 333.

      While a protective sweep is necessary for the safety of the arresting officers

and others at the scene, the Court also recognized it is an intrusive act that should

be limited in its scope. Id. at 333-34. It must be “narrowly confined to a cursory

visual inspection of those spaces where a person might be hiding,” id. at 327, and

should last “no longer than is necessary to dispel the reasonable suspicion of


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danger and in any event no longer than it takes to complete the arrest and depart

the premises,” id. at 335-36.

      Mr. Tucker first contests the propriety of the protective sweep. He argues

that since he was already arrested, the officers had no reason to fear for their

safety. However, the Supreme Court in Buie was “quite sure” that officers were

permitted to take steps to ensure their safety both “after, and while making, the

arrest.” Id. at 334.

      Relying on United States v. Hogan, 38 F.3d 1148 (10th Cir. 1994), Mr.

Tucker contends the officers had no specific and articulable facts to support a

reasonable belief that the residence harbored any other individual posing a danger

to the officers or others. Hogan is inapposite to our case. The defendant there

was arrested outside his home, and the police collected evidence for two hours

during the “sweep.” Id. at 1150. In that case, we were not convinced that the

sweep was conducted to protect the officers. Id. By contrast, the district court

here found that the protective sweep lasted well under five minutes. The district

court also found that the officers were told the numerous suspects in the alleged

conspiracy had a history of violent behavior and were known to possess firearms.

Moreover, the court found that Mr. Tucker took an unusually long time out of the

officers’ sight when he was searching for the keys, and that the rustling noises

could have suggested to the officers that someone else was in the dwelling. We


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are persuaded these facts supported a reasonable belief of a risk of ambush, and

therefore justified a protective sweep.

      Second, Mr. Tucker contends the scope of the sweep was improper. He

argues that the evidence found from moving the couch should be suppressed

because no person could have fit behind the couch. The district court found that

“the officers didn’t do anything more than look about in places where a human

being could be. And they are entitled to look in a closet or open a bathroom door

or look behind a bulky piece of furniture.” Aplt. App., vol. I, at 85. We cannot

say that the district court was clearly erroneous in determining that the couch

could have hidden a potential threat.

      The resulting search warrant was based on the protective sweep. Since we

conclude that the protective sweep was proper, we decline to further address the

validity of the search warrant. After reviewing the record, we hold that the

district court properly denied Mr. Tucker’s motion to suppress. Accordingly, we

AFFIRM the district court.

                                                ENTERED FOR THE COURT

                                                Stephanie K. Seymour
                                                Chief Judge




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