That was a really good read, thanks. I doubt we’ll agree on everything but I’ve highlighted a few things I thought were relevent. If a person were being arrested INSIDE their house I would NOT see a problem with a cursory sweep for the safety of the officers. When a person is arrested OUTSIDE their house I have a huge problem with it, get a warrant. These quotes are from the link you posted.
The fourth type of protective search—the “protective sweep”—is different because it is a search for people.4 Specifically, it is a search for people who pose a threat to officers who are lawfully inside a residence or other place.5
Most sweeps are conducted just after officers have arrested a suspect inside his house.
Although the focus of this article is on sweeps that occur in conjunction with in-home arrests, they may sometimes be conducted when the arrest takes place outside the dwelling. In addition, sweeps are not limited to arrest situations.7 This subject will be covered later.
For example, in U.S. v. Curtis15 officers lawfully arrested Curtis and Melvin in the living room of their two-bedroom apartment. While two officers guarded the arrestees, two other officers “swept” a living room closet, the adjoining kitchen, and two bedrooms located “down the hall.” In the course of the sweep, they found drugs in the bedrooms. The court ruled the officers “could legitimately look in other spaces in the living room, in the open kitchen, and in the living room closet near the couch on which Melvin was sitting just prior to his arrest.” But the sweep of the bedrooms was unlawful because “[t]here was no justification for a sweep of such remote areas.”
Even if officers may lawfully sweep a certain room, they may inspect only those places and things in which a person might be hiding. For example, in U.S. v. Ford,16 an FBI agent arrested Ford in the hallway of his home as Ford was stepping from a bedroom. While other officers guarded Ford, the agent walked into the bedroom and saw a gun clip in plain view. He then lifted a mattress and found drugs and ammunition. After that, he lifted a window shade and found a handgun on the sill.
The court ruled the agent’s entry into the bedroom was lawful because “the arrest took place in the hallway, and the bedroom from which Ford emerged was immediately adjoining the hallway.” Thus, the gun clip was seized lawfully. But the drugs, ammunition, and handgun were ordered suppressed because, said the court, it was apparent that no one was hiding under the mattress or behind the window shade.
Still, because reasonable suspicion cannot exist without some factual basis, sweeps may not be conducted as a matter of routine or departmental policy. Thus, in ruling the sweep of the defendant’s home was unlawful, the court in U.S. v. Brown said, “[T]he protective sweep was not based upon any articulable suspicion, but rather was undertaken as a matter of standard ATF policy.”21
Nor may sweeps be conducted on grounds that officers had no information that a threat did not exist and, therefore, the existence of a threat could not be ruled out. In the words of the U.S. Court of Appeal, “‘No information’ cannot be an articulable basis for a sweep that requires information to justify it in the first place.”22 Thus, in U.S. v. Ford23 the court ruled a sweep was unjustified because the only reason given by the FBI agent for conducting it was, “I did not know if there was anybody back there. I wanted to make sure there was no one there to harm us.”
Likewise, a sweep is not permitted merely because there existed an abstract or theoretical possibility of a threat.24 Officers may, however, interpret the facts in light of their training and experience. As the Court of Appeal observed, “[T]he officer’s training and experience can be critical in translating observations into a reasonable conclusion.”25
Arrest outside, sweep inside
The courts have sometimes permitted sweeps when the suspect was arrested just outside the house, usually near a door that was open or ajar.46 I believe this was what happened in this case. 46 The logic behind these rulings is that when officers reasonably believe that a person inside a house poses a threat to them, that threat is not eliminated merely because there happens to be a door between them.47 In the words of the Court of Appeal:
The basic question is whether the limited inspection of the premises was reasonable in each case, that is, was it in fact a protective sweep based upon articulable and reasonable facts supporting a belief in possible danger to officers or others, or was it an otherwise impermissible warrantless search for evidence? This, rather than on which side of a door an arrest is effected, is the issue in these limited-inspection cases.48
Although an arrest outside may sometimes justify a protective sweep inside, the courts are not in agreement as to whether the greater intrusion of a warrantless entry requires probable cause or whether reasonable suspicion is sufficient.49 It is, however, clear that even where the reasonable suspicion standard has been applied, the courts tend to evaluate the circumstances more critically. As the court observed in Sharrar v. Felsing, “Predictably, where the courts have differed in permitting protective sweeps incident to arrests outside the home is on the quantity and quality of the articulable facts necessary to justify the sweep, rather than on the underlying standard.”50
PLAIN VIEW SEIZURES: If officers see evidence in plain view, they may seize it if they have probable cause that it is, in fact, evidence of a crime.56 As the court noted in U.S. v. Curtis, “[O]fficers engaged in a legitimate protective sweep need not close their eyes to what they see in plain view.”57
Have a good evening.
If we all got along all the time and agreed on everything life would be pretty boring. Besides, through our discussion I’ve learned some new things pertaining to the 4th Amendment that I was unaware of and I can use that knowledge in future debates.