Search and Seizure - Security Sweep

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts
By Don Samuel
Garland, Samuel & Loeb, P.C.
Sep 1, 2015

Maryland v. Buie, 494 U.S. 325 (1990)

Police officers effecting a lawful arrest of a criminal suspect in his home may conduct a limited protective sweep of the residence if the police have a reasonable belief that other people who pose a danger to those at the arrest scene are located in other parts of the house.

United States v. White, 748 F.3d 507 (3rd Cir. 2014)

The police responded to a domestic disturbance call involving a father and daughter. When the police arrived, the father/defendant came outside, was handcuffed and placed in the patrol car. The daughter then came out and when asked, said that nobody else was in the house. The police entered the house and located two guns. This entry was not a legitimate security sweep. There were no exigent circumstances or reason to believe that anybody in the house posed a danger to the police; nor were there apparently any exigent circumstances that justified a warrantless entry into the house, though a remand on this issue was appropriate to further develop the record.

United States v. Hassock, 631 F.3d 79 (2d Cir. 2011)

The police went to an apartment and after knocking on the door, a woman finally answered the door. The police announced that they were looking for Hassock and she mumbled something and eventually said that the police could “look around.” The police did not determine who she was, or what authority she had to permit entry into the apartment. The Second Circuit held that this was invalid consent to enter. The Court also spent considerable time discussing whether the police could engage in a Buie protective sweep and reviewed the law concerning the scope and premise for a protective sweep, noting that a protective sweep in some Circuits is limited to instances when either a search warrant is being executed or an arrest is occurring, whereas other Circuits permit a protective search in situations where a consent to search is the predicate for the entry. But that issue was not resolved in this case, because the Court concluded that the entry was unlawful.

United States v. Archibald, 589 F.3d 289 (6th Cir. 2009)

Several officers went to the defendant’s residence to serve an arrest warrant. They knocked on front door. An officer could hear someone moving around inside. A male voice from inside asked, “Who is it?” The officers identified themselves. Nobody opened the door but the police could hear move movement inside. The officers could not determine how many people were inside, or if there was more than one person. The officers testified, however, that they “always assume” that there are more people inside. Eventually, the defendant opened the front door and he was pulled out and arrested. Two officers immediately entered the house and located a gun which was the basis for obtaining a search warrant and the prosecution of the defendant for possession of the weapon. The Sixth Circuit held that the security sweep was not justified by the information known to the police, and held that the search warrant was therefore based on illegally obtained evidence.

United States v. Walker, 474 F.3d 1249 (10th Cir. 2007)

The police went to the defendant’s house after receiving a report of a fight. When they arrived, the defendant screamed out that he had a gun. The police entered the house and handcuffed him and took him out. They then searched the house and found guns which led to the defendant’s prosecution for being a felon in possession of a firearm. The Tenth Circuit holds that a security sweep could not be the justification for the search, because at the time of the search, the defendant had not been arrested and a Buie search is only permissible after someone is arrested. The case was remanded to the district court for the purpose of determining whether exigent circumstances might have justified the warrantless search of the house.

United States v. Waldner, 425 F.3d 514 (8th Cir. 2005)

The police came to the defendant’s house to serve a protective order. They knocked on the door and eventually the defendant answered. He was instructed by the police that he was required to vacate the premises immediately. The officer accompanied him back into the house to gather a few things. While accompanying the defendant in the basement collecting some clothes, the officers entered an office. In the office, the officers saw a gun with a silencer. Because the officers had no reason to believe that there was anybody else in the house, or any weapons that posed a danger to them, there was no basis for searching the office as part of a protective sweep. The purpose of a protective sweep is to ensure the safety of the officers, not to search for guns and contraband. It should be noted, moreover, that Waldner was not under arrest, he was simply being served a protective order.

United States v. Gandia, 424 F.3d 255 (2d Cir. 2005)

The defendant consented to the police entering his kitchen to interview him. Prior to commencing the interview, the police conducted a security sweep of the house. This was improper. The consent did not authorize the police to enter other rooms of the house. A security sweep is not permissible on the basis of a limited consent search.

United States v. Morgan Vargas, 376 F.3d 112 (2d Cir. 2004)

The police went to the defendant’s hotel room and he let them in. The agents exhibited no particular fear for their safety – they did not even frisk the defendant. However, noticing an open door to the bathroom, the police went in, despite the defendant’s protest. This was not a legitimate “protective sweep” search envisioned by Maryland v. Buie. The police offered no evidence that they had an articulable suspicion that the bathroom was occupied by any other person who posed a danger to them.

United States v. Carter, 360 F.3d 1235 (10th Cir. 2004)

The police had no basis for conducting a security sweep of the defendant’s garage. There was no information that other people were at the house, or capable of hiding or destroying evidence. A remand was necessary to determine if the defendant’s consent to search the garage was tainted by the previous unlawful security sweep that had been conducted.

United States v. Paradis, 351 F.3d 21 (1st Cir. 2003)

After the defendant was handcuffed and removed from the apartment in which he was found with his girlfriend, the police performed what they claimed was a protective sweep. However, the apartment had already been searched and the defendant found, so there was no reasonable basis for believing that any other person was in the apartment.

United States v. Curzi, 867 F.2d 36 (1st Cir. 1989)

The officers saw the subject of an arrest warrant leave and re-enter a house. They waited two hours, then ordered all occupants of the house to exit. No effort was made to obtain a search warrant during this two hour period. After the occupants exited, the defendant was arrested and the officers entered the house to conduct a protective sweep. No exigent circumstances justified the search of the house at that time in light of the agents’ failure to obtain a search warrant during the two hours that the house was kept under surveillance. The holding in this case was governed by the decision in Steagald v. United States, 451 U.S. 204 (1981). That is, an arrest warrant for a visitor of a house is not sufficient basis to search the house.

United States v. Blue, 78 F.3d 56 (2d Cir. 1996)

Though the police had a basis to detain the defendant, in his apartment, during the course of arresting another individual, a sweep search that included looking between the mattress and the box springs was not authorized and evidence found there should have been suppressed.

United States v. Colbert, 76 F.3d 773 (6th Cir. 1996)

The police were staking out an apartment and arrested the defendant when he exited the apartment and was about to enter his car. Even when a suspect is arrested outside his home, the police may conduct a sweep search of the home if there is an articulable suspicion that the officers were in danger from someone inside the apartment. But in this case, there was no basis for believing there was anybody left in the apartment, to say nothing of anybody posing a danger to the defendant. The court acknowledged that police are engaged in extremely dangerous work and it might be wise to simply allow the police to do whatever they thought was necessary in any given situation, but the Fourth Amendment does not give the police that kind of freedom, and “as long as [the Fourth Amendment] is in existence, police must carry out their often dangerous duties according to certain prescribed procedures, one of which has been transgressed [in this case].”

United States v. Akrawi, 920 F.2d 418 (6th Cir. 1990)

Agents went to the defendant’s house to execute an arrest warrant. The defendant answered the door and allowed the agents into the house. Only the defendant’s mother was seen in the house. After the arrest, the agents remained in the house for forty-five minutes and conducted a protective sweep of the second floor. This was not justified under the circumstances and the evidence found upstairs should have been suppressed.

United States v. Noushfar, 78 F.3d 1442 (9th Cir. 1996)

The agents arrested the defendants in their apartment, but then conducted a thirty-minute sweep search, including an examination of receipts in a box of documents. This exceeded a permissible sweep search.

United States v. Hogan, 38 F.3d 1148 (10th Cir. 1994)

An arrest warrant authorized the police to arrest the defendant. He was summoned out of his house. He was arrested outside his house, outside the fence. The police then searched the house for two hours and also seized the defendant’s camper, which was later searched with a search warrant. A protective sweep “is not a full search, but rather a quick, cursory inspection of the premises, permitted when police officers reasonably believe, based on specific and articulable facts, that the area to be swept harbors an individual posing danger to those on the arrest scene.” The search of the premises in this case was not authorized by the protective sweep exception to the search warrant requirement. However, nothing was learned during the improper protective sweep which tainted the search warrant for the camper which was later obtained.

United States v. Rodgers, 924 F.2d 219 (11th Cir. 1991)

After arresting the defendant in his front yard, police officers went back to the front door to close it. One officer noticed two handguns on a couch in the front room. He seized the guns, but conducted no other search. This was not a valid security sweep search. Nevertheless, the search was valid under the exigent circumstances exception to the warrant requirement. To be a valid security sweep, the officer must quickly search the premises, particularly in those places where a person might be hiding. Here, the officer did not search the premises at all; he simply entered the trailer and seized the guns. In short, the officer did not enter the premises, “with a reasonable belief based on specific and articulable facts that the area swept harbored an individual posing a danger to the officer or to others.”

United States v. Ford, 56 F.3d 265 (D.C.Cir. 1995)

Under Maryland v. Buie, two types of searches for people are permissible in connection with the arrest of a suspect: (1) a search of areas adjacent to the scene of the arrest, regardless of any likelihood of finding evidence; and (2) a search of other areas where there is a reasonable suspicion of finding someone who poses a threat to the officers. In this case, the officers, while looking in adjacent areas, discovered a gun clip. This did not authorize the officers to look behind a window shade, or under a mattress, because in neither location were the officers likely to discover any other person who posed a threat to the officers. The gun found behind the window shade, therefore, should have been suppressed.