United States v. Portis, 4th Cir. (2011)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 09-4853
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
BRIAN PORTIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00034-RLW-1)
Argued:
December 10, 2010
Decided:
January 13, 2011
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Charles David Whaley, Richmond, Virginia, for Appellant.

Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee. ON BRIEF: Jennifer M. Newman,
Richmond, Virginia, for Appellant.
Neil H. MacBride, United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This
appeal
arises
from
district
courts
denial
of
defendant Brian Portiss motion to suppress evidence recovered

from his home.
Although Portis consented to the warrantless
search of his residence, he argues that his consent was tainted

by
officers
earlier
sweep
of
the
premises,
violated his Fourth Amendment rights.
which
he
claims
For the reasons described
below, we disagree and affirm.
I.
A.
We briefly summarize the relevant facts.
Officer
Edward
Aeschlimann
and
his
On June 6, 2007,
partner,
Officer
Corey
Watson, pulled Portis over for running a stop sign near his
Richmond, Virginia home.
Portis was driving a brown pick-up
truck with a ladder rig.

officers
Portis
learned
consented
officers
found
When running his information, the
that
Portiss
to
search
loaded
license
of
his
magazine.
had
been
vehicle,
Portis
in
suspended.
which
explained
the
that
although he had no guns in his car or home, his mother had

firearms that he sometimes used.
He also mentioned that he was
a former Army infantryman and an expert marksman.

The traffic stop ended without incident.
J.A. 41.
One week later, on the evening of June 13, 2007, Officers

Aeschlimann and Watson received a dispatch alerting them to a
shooting in their area involving an individual in a brown pickup
truck
that
had
ladder
rig.
Id.
at
44.
Officer
Aeschlimann contacted Detective Bill Brairton, who had phoned in

the
dispatch,
investigating
and
a
learned
homicide,
that
Detective
which
Portis
for
Brairton
was
person
was
of
interest.
Detective Brairton reported that during his investigation
he had spoken with a woman named Diana Rameriz, who claimed that
Portis owned several guns--including at one point an assault
rifle--and had threatened her son with a firearm.
Detective
Brairton explained that Rameriz had contacted him again, earlier

on June 13, to report that Portis had just shot at her son.
Detective Brairton further stated that Ramerizs son had not
been hit and would seek out Officers Aeschlimann and Watson when
they arrived on the scene.
Detective Brairton also informed
Officer Aeschlimann that Portis had a picture of himself with an

assault rifle taped to his front door and could be heavily
armed.
Id. at 46.
Equipped
with
this
information,
Officers
Aeschlimann
and
Watson called for backup and arrived at Portiss house at 6:52

p.m.,
along
with
another
two-person
police
vehicle.
The
officers found Portis standing in the doorway of his home and

3
another,
unidentified
man
standing
near
Officer Aeschlimann shouted Hey Brian.
the
responded by retreating into his home.
front
Id. at 50.
steps.
Portis
At that point, Officer
Aeschlimann drew his weapon and commanded Portis to exit his

home.
About fifteen seconds later, Portis complied, raising his
hands to show he was not armed and walk[ing] down the front
steps as instructed.
Id. at 51.
The officers approached Portis and the other man, placed

them both in handcuffs, and patted Portis down to make sure he
was
not
armed.
Officer
Aeschlimann
then
instructed
another
officer, Officer Gregory Hamilton, to conduct a sweep of the

house
to
Hamilton
make
sure
swept
the
officer-in-training.
no
one
house
else
for
The
was
two
two
inside.
minutes,
did
Officer
Id.
accompanied
visual
scan
by
of
an
the
surroundings and did not open any closets or go through any

drawers.
Id. at 94.
Officer Hamilton reported that he had not
seen any weapons but had observed a metal spoon, with what he
thought was cocaine residue, sitting on the floor of a bedroom.
Officer Watson read Portis his Miranda rights at 7:00 p.m.
Portis then admitted to Officer Watson that he had a firearm in
his home.
Ramerizs
scene,
as
During Officer Watsons conversation with Portis,

son--the
did
alleged
Portiss
shooting
roommate.
victim--arrived
After
speaking
at
the
with
the
alleged victim, the officers concluded that they did not have
probable cause to arrest Portis.
The officers released Portis and the other individual from
handcuffs but informed them that they could not leave, as the
officers were still investigating the cocaine residue and gun in
Portiss
home.
Officer
Aeschlimann
asked
Portis
and
his
roommate if the officers could search the home, noting that he

thought that the fact there was drug paraphernalia in plain
view, and that Portis had admitted he had a firearm would, in
Id. at 60.
any event, be sufficient to obtain a search warrant.

Portis and his roommate consented to the search.
Portis also
described to the officers where the gun was located and admitted
that he had drug paraphernalia in his bedroom, which he used to
smoke marijuana two or three times a week.
Officers recovered
the gun and drug paraphernalia.

B.
On January 24, 2008, Portis was charged with possession of
a
firearm
violation
as
of
an
18
unlawful
U.S.C.
user
of
controlled
922(g)(3),
substances,
and
possession, in violation of 21 U.S.C. 844.
unlawful
in
drug
Portis moved to
suppress the evidence recovered from his home, arguing that his
consent to the search was tainted by the officers allegedly
unlawful
initial
entry.
Officers
Aeschlimann,
Hamilton,
Watson testified at an April 2008 suppression hearing.

5
and
After hearing from both sides, the district court denied

the motion to suppress.
in September 2009. *
Portis was found guilty on both counts
This appeal followed.
II.
On appeal, Portis again challenges the officers initial
sweep of his home, urging that the search violated his Fourth
Amendment rights.
We disagree.
In light of the facts presented
at the suppression hearing, the brief visual scan of Portiss

residence was justified as an appropriately limited protective
sweep.
When reviewing an appeal from a district courts denial of
a motion to suppress, we review the courts factual findings
for clear error and its legal determinations de novo.
States
v.
Wardrick,
350
F.3d
446,
451
(4th
Cir.
United
2003).
protective sweep of a defendants home is justified if there are

articulable
facts
which,
taken
together
with
the
rational
inferences from those facts, would warrant a reasonably prudent

officer
in
individual
believing
posing
that
danger
the
to
area
those
to
on
be
swept
the
harbors
.
an
scene.
We vacated Portiss initial conviction, citing confusion

surrounding what he believed to be a conditional guilty plea.
See United States v. Portis, 332 F. Appx 870, 872 (4th Cir.
2009). We did not reach the merits of his present claim, and he
has since been found guilty after a bench trial.
Maryland v. Buie, 494 U.S. 325, 334 (1990); see also United
States v. Baker, 577 F.2d 1147, 1152 (4th Cir. 1978) (finding
that a protective sweep of a defendants home was justified when
the defendant was arrested in front of it).
The vast majority of circuit courts to have considered the
issue
have
upheld
protective
which
officers
sweeps
are
conducted
lawfully
on
in
a
non-arrest
situations
in
defendants
property.
See, e.g., United States v. Miller, 430 F.3d 93, 98
(2d Cir. 2005) (finding that a law enforcement officer present

in a home under lawful process . . . may conduct a protective
sweep when the officer possesses articulable facts as outlined
in Buie); United States v. Gould, 364 F.3d 578, 584 (5th Cir.
2004)
(en
banc)
indispensable
also
State
([A]rrest
element
v.
of
Davila,
(collecting cases).
an
999
is
not
in-home
A.2d
always,
or
protective
1116,
1127-29
per
se,
sweep.);
(N.J.
an
see
2010)
Although we have not yet spoken directly to
this point, on the undisputed facts, we are persuaded that the

officers brief walk-through of Portiss home was justified.
As detailed at the suppression hearing, the officers had
reason to believe that Portis had firearms in his house and had
just shot at someone.
They were also aware that Portis was both
a person of interest in a homicide investigation and an armytrained expert marksman.
The officers had seen at least one
other individual on the premises and did not know what Portis
7
had done during the period in which he retreated inside his home
and disappeared from view.
They had reason to fear that Portis
may have been conferring with an armed confederate or hiding a

gun to which he would have had easy access to shoot at the
departing officers, in the event that they did not arrest him.
These
specific
reasonable
officers
facts
were
concern
that
sufficient
Portiss
to
home
justify
harbor[ed]
other persons who [we]re dangerous and who could unexpectedly

[have] launch[ed] an attack.
United States v. Green, 599 F.3d
360, 376 (4th Cir. 2010) (quoting Buie, 494 U.S. at 333); see
also Mora v. City of Gaithersburg, 519 F.3d 216, 226 (4th Cir.
2008) (upholding a protective sweep when officers did not and
could not fully know the dimensions of the threat they faced).
Portiss assertion to the contrary lacks merit.
Significantly, the officers did not conduct an intrusive
investigation during their initial entry or linger in Portiss
home longer than necessary.
They instead confined themselves to
a two-minute sweep of places in which a dangerous individual

might have been hiding.
On these facts, their limited search
was justified and did not taint Portiss subsequent consent.
III.
We have reviewed Portiss remaining arguments and find them
to be without merit.
For the foregoing reasons we affirm the

8
district
courts
denial
of
Portiss
motion
to
suppress
the
disputed evidence.
AFFIRMED

United States v. Portis, 4th Cir. (2011)

Uploaded by

Copyright:

Available Formats

United States v. Portis, 4th Cir. (2011)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Portis, 4th Cir. (2011)

Uploaded by

Copyright:

Available Formats

UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

December 10, 2010

January 13, 2011

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Charles David Whaley, Richmond, Virginia, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

defendant Brian Portiss motion to suppress evidence recovered

Although Portis consented to the warrantless

search of his residence, he argues that his consent was tainted

violated his Fourth Amendment rights.

For the reasons described

below, we disagree and affirm.

Portis was driving a brown pick-up

truck with a ladder rig.

When running his information, the

although he had no guns in his car or home, his mother had

He also mentioned that he was

a former Army infantryman and an expert marksman.

One week later, on the evening of June 13, 2007, Officers

Aeschlimann contacted Detective Bill Brairton, who had phoned in

Brairton explained that Rameriz had contacted him again, earlier

Detective Brairton also informed

Officer Aeschlimann that Portis had a picture of himself with an

Watson called for backup and arrived at Portiss house at 6:52

officers found Portis standing in the doorway of his home and

Officer Aeschlimann shouted Hey Brian.

responded by retreating into his home.

At that point, Officer

Aeschlimann drew his weapon and commanded Portis to exit his

About fifteen seconds later, Portis complied, raising his

The officers approached Portis and the other man, placed

officer, Officer Gregory Hamilton, to conduct a sweep of the

surroundings and did not open any closets or go through any

Officer Hamilton reported that he had not

During Officer Watsons conversation with Portis,

roommate if the officers could search the home, noting that he

any event, be sufficient to obtain a search warrant.

the gun and drug paraphernalia.

possession, in violation of 21 U.S.C. 844.

Watson testified at an April 2008 suppression hearing.

After hearing from both sides, the district court denied

Portis was found guilty on both counts

This appeal followed.

In light of the facts presented

at the suppression hearing, the brief visual scan of Portiss

protective sweep of a defendants home is justified if there are

inferences from those facts, would warrant a reasonably prudent

We vacated Portiss initial conviction, citing confusion

See, e.g., United States v. Miller, 430 F.3d 93, 98

(2d Cir. 2005) (finding that a law enforcement officer present

Although we have not yet spoken directly to

this point, on the undisputed facts, we are persuaded that the

They were also aware that Portis was both

a person of interest in a homicide investigation and an armytrained expert marksman.

The officers had seen at least one

They had reason to fear that Portis