Protective Sweeps

Protective Sweep-A quick and limited search of premises to protect the safety of the police officers or others on the scene.

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Maryland v. Buie, 494 U.S. 325 (1990)-Police entered Buie's home to serve an arrest warrant for armed robbery. Buie was arrested as he exited his basement. The police did a protective sweep of the basement for officer's safety. Evidence was found in plain view. The USSC ruled that no warrant was required, and as an incident to the arrest the officers could, 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 launched. Reasonable suspicion is required to sweep beyond this limited area.

1. Officers can conduct a protective sweep of the immediate area as a search incident to arrest. No reasonable suspicion is necessary.

2. Protective sweeps beyond the limited area of a search incident to arrest is allowed if reasonable suspicion exists to do so.

US v. Chaves, 169 F.3d 687 (11 Cir. 1999)-Officers cannot justify conducting a protective sweep for officer safety after waiting 45 minutes from the time of arrest before conducting the sweep.

US v. Gould,No. 02-30629 (5th Cir.)(2004)-Law enforcement officers, legally in a residence, but without a search or arrest warrant, can make a "protective sweep" of the residence if they have reasonable suspicion their safety is in jeopardy.

US v. Vargas, 376 F. 3d 112 (2 Cir 2004)-DEA agents contacted Vargas in his motel room. The talked with him for several minutes. The agents had no reasonable suspicion to believe they were in danger. One of the agents indicated to Vargas that he was going to open the ajar bathroom door. Vargas quickly shut the door and told the agents they could not use the bathroom. The agents searched the bathroom claiming a “protective sweep” exception. They found heroin in the bathtub. The lower court and Circuit Court suppressed the evidence. The agents were not conducting a sweep incident to arrest. There were no exigent circumstances, and Vargas unequivocally revoked consent to search the bathroom.

US v. Torres-Castro, 470 F.3d 992 (10th Cir., 2006)- Following Buie, we held that such "protective sweeps" are only permitted incident to an arrest. See United States v. Davis, 290 F.3d 1239, 1242 n. 4 (10th Cir. 2002) (rejecting an argument that protective sweeps should sometimes be permitted absent an arrest); United States v. Smith, 131 F.3d 1392, 1396 (10th Cir.1997) (noting that a protective sweep "is a brief search of premises during an arrest to ensure the safety of those on the scene"). In United States v. Garza, an unpublished disposition, we declined to extend the protective sweep doctrine to cases where there is no arrest. See 125 Fed.Appx. 927, 931 (10th Cir.2005) ("We have twice found that a protective sweep may only be performed incident to an arrest."). Garza made clear that based on this court's prior published cases of Davis and Smith, protective sweeps must be performed incident to an arrest.

*Note: There is a split in the courts about protective sweeps. Some courts limit protective sweeps for instances of arrest only, like the 10th Circuit Court. Other courts allow protective sweeps during non-arrest circumstances when the officers have reasonable suspicion that their safety is in jeopardy.

US v. Jones, 10–4442, 10–4698 (4th Cir 2012)-The Circuit Court held: "...the presence of the seven vehicles coupled with Officer Smith’s prior surveillance of known meth users patronizing the Jones residence.9 Faced with the possibility that there were other persons inside the house, there was ample reason to believe that such individuals could endanger the officers’ safety, in that the Joneses were involved in the production and distribution of meth; at least one of their patrons was known to carry a firearm; and a fugitive was reportedly staying in the residence."

US v. White, 13-2130 (3rd Cir. 2014)-The Court held that police cannot conduct a protective sweep under Maryland v. Buie prong #1 (Officers can conduct a protective sweep of the immediate area as a search incident to arrest. No reasonable suspicion is necessary.) inside the home if the suspect was arrested outside the home.

US v. Almonte-Baez, No. 15-2367 (1st Cir. 2017-The DEA was investigating subjects for drug trafficking. During the course of the investigation, they spotted a suspect, Medina, carrying a heavy trash bag to his vehicle. Medina was stopped on traffic. The agents through consent searched Medina's vehicle and found over $370,000 in cash. The agents went to the apartment Medina left. They knocked and announced their presence. They heard someone inside running to the back of the apartment. Believing the subject was trying to escape or destroy evidence. The agents forced entry and did a protective sweep. They detained Almonte-Baez. The agents found heroin and paraphernalia. They obtained a warrant and found over 20 kilos of heroin. The defendant tried to get the evidence suppressed. The court held that the agents had probable cause to believe drugs were in the apartment. They also had exigent circumstances to believe the drugs were about to be destroyed. Their entry was lawful. The protective sweep was lawful. Subsequently, the search warrant based on what they saw in the apartment was lawful.

US v. Alatorre, No. 16-4184 (8th Cir. 2017)-Officers did a high risk service of an arrest warrant for Alatorre at his home. The officers knocked and announced that they had an arrest warrant. The officers heard noises consistent with multiple people being in the residence before Alatorre came to the door. The officers arrested him and pulled him out to the porch. The officers did a protective sweep of the house and found in plain view drugs and guns. Alatorre was charged with the additional offenses. He tried to get the evidence suppressed, but was denied. He appealed. The Circuit Court held that a threat of accomplices launching a surprise attack from within the home is a valid officer safety concern. Alatorre's warrant was for assaulting someone with a baton, and he has a criminal history of carrying weapons. Finally, the officers did not know how many people were still in the home. The protective sweep was lawful as is the discovery of the drugs and guns.