WA: Arrest on def’s porch does not justify protective sweep of his house

Defendant stepped out of his house onto a small covered porch where he was arrested. The protective sweep of the house violated the state constitution. The officers could see a woman inside. Nevertheless, a protective sweep of a house after an arrest outside is unreasonable without specific facts amounting to at least reasonable suspicion justifying the entry. [Here, however, it was all harmless error.] State v. Chambers, 2016 Wash. App. LEXIS 3033 (Dec. 19, 2016):

¶91 The court erred in concluding the police had the authority to conduct a protective sweep of the house incident to arrest for two reasons. First, a warrantless search of “spaces immediately adjoining the place of arrest” [Buie at 334] without probable cause or reasonable suspicion does not apply when the police arrest an individual outside his home. See United States v. White, 748 F.3d 507, 511-12 (3d Cir. 2014) (holding the Buie “prong 1 exception is not available where the arrest took place ‘just outside the home’”); United States v. Archibald, 589 F.3d 289, 296-97 (6th Cir. 2009) (arrest just outside threshold of front door does not meet first prong of Buie). If an individual is arrested just outside his home, a protective sweep “‘must be analyzed under the second prong of the Buie analysis.’” White, 748 F.3d at 512 (quoting Sharrar v. Felsing, 128 F.3d 810, 824 (3d Cir. 1997)); see also United States v. Paopao, 469 F.3d 760, 765-66 (9th Cir. 2006); United States v. Oguns, 921 F.2d 442, 446 (2d Cir. 1990).

¶92 Second, the footnote in Hopkins does not support the court’s conclusion that a protective sweep incident to arrest applies. The case cited in the footnote in Hopkins, United States v. Henry, did not rely on the Buie exception for a protective sweep incident to arrest. In Henry, the court relied on the exception for a protective sweep where police have articulable facts that an individual poses “‘a danger to those on the arrest scene.’” Henry, 48 F.3d at 1284 (quoting Buie, 494 U.S. at 334). In Henry, the “[u]ncontroverted testimony at the suppression hearing … established an objective basis for the officers to fear for their safety after the arrest … just outside the open door” and to conduct a protective sweep of the apartment. Henry, 48 F.3d at 1284.

¶93 In the alternative, the trial court concluded the police were justified in conducting a protective sweep of the kitchen because they had “a reasonable suspicion” that “the area to be searched may harbor an individual posing a danger.”

Buie also allows the police to make a search of areas not directly adjoining the place of arrest when the police have a reasonable belief, based on articulable facts, which warrant a reasonably prudent officer in believing that the area to be searched may harbor an individual posing a danger to those on the arrest scene. …

¶94 To justify a protective sweep when a suspect is arrested outside his home, there must be articulable facts that warrant a police officer in believing “the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334. To establish the second type of a protective sweep is justified, more than a general suspicion of the possibility of danger is required. See Buie, 494 U.S. at 334 n.2 (“Even in high crime areas, where the possibility that any given individual is armed is significant, … reasonable, individualized suspicion [is required] before a [protective sweep] can be conducted.”); United States v. Moran Vargas, 376 F.3d 112, 116 (2d Cir. 2004) (general suspicion, “without more”, that other armed individuals might be in hotel room insufficient to justify protective sweep); United States v. Taylor, 248 F.3d 506, 514 (6th Cir. 2001) (generalized suspicion that defendant is a drug dealer, standing alone, inadequate to justify protective sweep).

¶95 The record does not support the conclusion that there were “articulable facts” that the kitchen harbored “an individual posing a danger.” The police had information that only Chambers shot Hood and was alone when he drove away. The findings establish the only individual in the house when police arrested Chambers was his spouse Sara. “[T]he front door was open” after the arrest and “[t]he police could see” Sara was sitting on the living room couch watching television and remained in the living room.

¶96 We conclude the undisputed facts do not support the warrantless entry and protective sweep of the kitchen under Buie and the court erred in denying the motion to suppress.