Protective Sweep of Residence

by Charles Gillingham

The author recently had a conversation with a prosecutor in another jurisdiction about protective sweeps. It was clear from the conversation that the officers in that case had a misunderstanding of the differences between a search incident to arrest in a residence and a protective sweep.  Let's clear up any confusion.

Search Incident to Arrest In Residence

In 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 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.

REQUIREMENTS

1.  Lawful entry-important to identify yourself.

2.  REASONABLE SUSPICION that someone other than the arrestee is in the residence and is either hiding or not able to be located;

3.  Danger to the officers or others on site.

Reasonable Suspicion must be supported by FACTS that leads an officer to believe someone else is located within.  NOT KNOWING whether someone else is inside is not sufficient.

What is Reasonable Suspicion?

Hearing voices inside residence; seeing someone inside residence; receiving warning there is someone in residence; knowing that are multiple occupants at the residence; yelling by detainee to some unknown other; crime committed by multiple suspects, one or more of whom is unaccounted for. 

Danger

Officers must be able to articulate why it is that there is danger necessitating a sweep.  In a lawful entry officers would have identified themselves.  That is sufficient to put someone on notice officers are on scene.  Investigation of dangerous crimes lead to inference of need for protective sweep of residence.  Evasive answers by a suspect; use of a weapon; a missing weapon; all provide grounds to sweep.

Sweep

Brief walk through the residence checking anywhere a suspect might hide and present a threat to officers. Anything found in plain view?-Stop and get a warrant.