“Protective Sweeps” – Beware the Search in Disguise

November 29, 2010

Recently, one of my clients called me after she had been arrested for possession of a controlled substance which was discovered in her house by police officers who gained entry and subsequently searched her home under the guise of conducting a “protective sweep”.

A “protective sweep” is narrowly defined as a cursory search of a residence or building for people who might be hiding inside and pose a danger to police officers who are otherwise performing a legitimate investigation within the premises. A good example is when police are called to serve an arrest warrant at a residence where they have information that persons, other than the subject of the warrant, might be located who pose a legitimate threat to the officers’ safety.

The leading case on this issue is Maryland v. Buie, 494 U.S. 325 ( 1990). In that case, the police served an arrest warrant upon Buie and another subject at Buie’s residence. After the arrests, one of the officers conducted a search of the basement “in case there was someone else there” and thereafter seized an incriminating running suit which was later introduced in evidence at Buie’s trial.

The US Supreme Court recognized that a properly limited protective sweep is justified when the officer has a “reasonable belief, based on specific facts, that the area to be swept harbors an individual who poses a danger to those on the arrest scene.”

A problem arises when a search for dangerous individuals evolves into a generalized search for contraband. This “evolution” is clearly a violation of the 4th Amendment protections against unreasonable searches and seizures. Such circumstances arose in Nolin v. State, 946 So2d. 52 ( Fla 2d DCA 2006). After responding to a domestic dispute and identifying the suspect, the officers conducted a non-consensual protective sweep of the residence and located marijuana in a bedroom dresser.

At the hearing on Nolin’s Motion to Suppress, the officers testified that they were trained to routinely search the entire residence for officer safety purposes. While perhaps sensible at first glance, the Nolin court agreed that the evidence should have been suppressed in the absence of articulable facts to support the officers’ mere hunch that other persons might be present and pose a danger.

To the casual reader, this ruling may appear unjust. Remember however, that if the officers can point to articulable factors to justify their safety concerns, evidence found in plain view as a result should be admissible. If this reasonable standard were to be eliminated, so also would be many of the protections the 4th Amendment is intended to insure.