The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE
On May 15, 1991, we conducted a supplemental evidentiary hearing on defendant Noah Robinson's motion to suppress. Based upon the evidence educed at this hearing and a review of other pertinent filings,
we find that Holandus "Jake" Oliver was controlled and arrested at the mouth of the interior hallway connecting the pool room with several other rooms at 10910 South Michigan Avenue. We further find that the arresting law enforcement officers' protective sweep of Robinson's locked bedroom was permissible, given that the bedroom was a space "immediately adjoining the place of arrest from which an attack could be immediately launched." Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 1098, 108 L. Ed. 2d 276 (1990). Accordingly, we sustain the government's objections to Magistrate Judge Bernard Weisberg's Further Report and Recommendation, filed May 2, 1991, adopt the Further Report to the extent that it is consistent with the findings outlined above and the ultimate conclusions we enumerate below, and deny Robinson's motion to suppress.
The permissibility of the officers' initial entry into Robinson's bedroom turns on the applicability of the protective sweep doctrine as explained by the Supreme Court in Buie. In that case, the Court held that "as an incident to . . . arrest," law enforcement officers may, "as a precautionary matter and 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." Buie, 110 S. Ct. at 1098. The Court also postulated a scenario "beyond" a purely precautionary sweep where "reasonably prudent" law enforcement officers have "articulable facts which, taken together with the rational inferences from those facts," would warrant a belief "that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id.
As procedural background, we set forth the chronology of events pre-dating our May 15 evidentiary hearing. On February 15, 1991, Magistrate Judge Weisberg filed an initial Report and Recommendation on Robinson's motion to suppress evidence. On April 2, 1991, Magistrate Judge Weisberg denied the government's motion for reconsideration. On April 22, 1991, we directed the magistrate judge to conduct an evidentiary hearing in order, inter alia, to better determine whether Robinson's bedroom was a place "immediately adjoining" the arrest site, thereby legitimizing the subsequent protective sweep. See Buie, 110 S. Ct. at 1098. We determined that an evidentiary hearing might provide additional evidence that would have been helpful to Magistrate Judge Weisberg as he formulated his initial Report and Recommendation; for whatever reason, the government prior to that initial Report had elected to present only the "probable cause" affidavit of one of the officers
and the transcript of similar suppression motion proceedings before a South Carolina state judge.
With a firm trial date of May 6, 1991 looming ominously, Magistrate Judge Weisberg conscientiously and expeditiously conducted an evidentiary hearing and heard oral argument Friday and Saturday, April 26-27, 1991. His Further Report and Recommendation, dated May 2, 1991, again urged that we grant Robinson's motion to suppress. Magistrate Judge Weisberg's excellent Further Report depended heavily on his inability to "completely credit the testimony of any of the witnesses"; indeed, the magistrate judge wrote that "because the court believes that none of the witnesses told the whole truth, the court cannot simply choose to believe one person's testimony or another's. This recommended decision is based on the probabilities that events did or did not happen as described, without attempting to resolve each conflict in the testimony. . . ." Further Report and Recommendation at 4. Importantly, however, Magistrate Judge Weisberg found that "after hearing the testimony and examining the photographs admitted as exhibits, we now are persuaded that, assuming [Oliver] was arrested in the pool room, Robinson's bedroom was a space 'immediately adjoining the place of arrest from which an attack could be immediately launched.'" Id. at 6 (emphasis in original) (quoting Buie, 110 S. Ct. at 1098). Magistrate Judge Weisberg ultimately did find that "Oliver was arrested or, in police parlance, 'controlled,' in the vestibule and then taken into the pool room." Id. at 8. The government filed its objections to the Further Report on Friday, May 3, 1991.
Our decision to conduct a separate, independent evidentiary hearing was prompted by the magistrate judge's inability to fully credit (or discredit) particular testimony and his resulting need to rely on what he perceived as the "probabilities" of what happened on June 4, 1988. The four officers' testimony that they controlled and arrested Oliver at the interior doorway makes Buie applicable; Oliver's testimony, on the other hand, that the officers controlled him with a gun to his head just inside the exterior door, several feet from Robinson's bedroom, renders Buie inapplicable, absent articulable facts under the second part of the Buie test. We decided to conduct an evidentiary hearing in hopes of being able to hear firsthand the testimony of the officers and Oliver in order to make a determination as to which version of events should be credited.
We focused our hearing on the narrow issue of where inside the building at 10910 South Michigan Avenue Jake Oliver was controlled and arrested. The government offered as witnesses Sergeant David O'Callaghan, Sergeant Daniel Brannigan, and Detective James Fitzmaurice of the Chicago Police Department, and Special Agent Thomas O'Brien of the Bureau of Alcohol, Tobacco and Firearms. All four officers were part of the Organized Crime Drug Enforcement Task Force, and they were the arresting officers on June 4, 1988. We did not hear any testimony from Jake Oliver, however, because Robinson chose not to call him as a witness after Oliver's attorney informed us in open court that Oliver would invoke his Fifth Amendment privilege against self-incrimination if called.
After hearing and evaluating the testimony of the four officers, we find that Jake Oliver was controlled and arrested at the mouth of the interior doorway leading from the pool room into the hall. The officers uniformly and credibly testified at the May 15 hearing that Oliver opened the outer door to the building and "backpeddled" several steps into the pool room. That certain details of an arrest which transpired almost three years ago were inconsistently recalled by the officers -- for example, which officer actually handcuffed Oliver, and at what precise moment Oliver identified himself -- does not impugn their credibility; indeed, it suggests that the officers did not rehearse and tailor their testimonies to be absolutely consistent.
On the central issues, the officers' version credibly jibed. Oliver opened the door, backpeddled away as the officers approached, and was controlled at the interior doorway after he had taken 3-5 steps backwards. Government Exhibit Robinson 4, a photograph of the pool room depicting the distance from the vestibule to the interior doorway, corroborates the officers' accounts of the arrest; even a person of Oliver's height, recalled by Special Agent O'Brien as close to his own, or about 5'8", would have no physical difficulty backpeddling slightly more than the length of the couch that was on the south wall of the pool room between the vestibule and the interior doorway. Sergeant Brannigan, for his part, credibly testified that when he came inside, about twenty or so seconds after Oliver initially opened the door, his colleagues had Oliver controlled against the wall immediately adjacent to the interior doorway.
At the close of the May 15 hearing, Robinson's attorney argued that, under Buie, the location of Oliver's arrest did not matter as much as the fact that the protective sweep was conducted after the arrest had been effectuated. In fact, counsel noted, Buie itself would seem to be limited on its face: "The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Buie, 110 S. Ct. at 1099.
The Court's apparent limitation, however, is not as clear as Robinson might hope. Buie speaks to two different protective sweep circumstances. The first circumstance is a purely precautionary sweep dictated by the geography of the arrest location. Here, officers may, "as a precautionary matter and without probable cause or reasonable suspicion, look in . . . spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Id. at 1098 (emphasis added). The second circumstance contemplates a sweep beyond the immediately adjoining spaces when officers have articulable facts and rational inferences that danger lurks in the area to be swept. A literal interpretation of Robinson's argument would mean that we would be put in the position of limiting the purely precautionary sweep -- the type of sweep that may be conducted "without . . . reasonable suspicion" -- to a period of time "necessary to dispel the reasonable suspicion of danger." That cannot be what the Supreme Court had in mind. The first part of the limitation cited by Robinson applies primarily or entirely to Buie's second kind of protective sweep -- those sweeps not purely precautionary in nature and for which a "reasonably prudent officer" must have "articulable facts" and "rational inferences" therefrom sufficient to warrant a belief that "the area to be swept harbors an individual posing a danger to those on the arrest scene."
We also believe that the government's interpretation of the second part of the "limitation" language in Buie makes more sense than Robinson's. The officers' testimony (particularly Brannigan and O'Callaghan's) was that they undertook the sweep immediately after Oliver was placed under arrest. Although we decline to apply the "lasts no longer than is necessary to dispel the reasonable suspicion of danger" language to a purely precautionary sweep, we do find the remainder of that line in Buie -- "and in any event no longer than it takes to complete the arrest and depart the premises" -- applicable to such sweeps. Law enforcement officers, however, are not required when making an arrest inside a building to surreptitiously back out of that building, guns drawn and pointed in all directions. Having made the arrest of Oliver inside the building at 10910 South Michigan Avenue, the officers were entitled, under Buie, to conduct a protective sweep to ensure their safety and that of the arrestee. Surely the arrest would not be considered "complete," id., if the arresting officers were gunned down by persons concealed in "closets [or] other spaces immediately adjoining the place of arrest," id. at 1098. Moreover, the fact that the officers did not leave the building immediately and instead talked to Oliver at some length does not invalidate the sweep. There is no evidence to suggest ...