What Are the Limits of a Warrantless “Protective Sweep”?
However, it is also well-established law that law enforcement arresting someone in a house may perform a quick and limited “protective sweep,” warrantless search for their own safety when there is a reasonable suspicion that the house may contain a dangerous person. Maryland v. Buie (1990) 494 U.S. 325, 335. Such a search is similar to the limited pat down for weapons authorized during an arrest of a person.
The recently decided (July 20, 2012) case of People v. Craig Andrew Werner (2012 DJDAR 10051), out of Santa Clara County, set new limits on when an officer may perform a warrantless, “protective sweep” search. We believe the case is significant because its fact pattern arises quite often in cases we handle.What One Should Learn from This Article: A protective (warrantless) sweep must be based upon “an articulable,” “particularized and objective basis” of a danger to officer safety and must be limited in scope to only such dangers. It cannot be a fishing expedition where officers look inside drawers or boxes, for example, without a warrant.
On February 19, 2010, police were summoned to the Campbell home of Mr. Werner because his girlfriend called police over alleged domestic violence. When police came to the house, Werner answered the door and stepped out to the front porch, where he was handcuffed and arrested. Werner then asked his roommate to go inside the house and retrieve his keys.
Werner was then charged with three drug-related felonies, (1. Health and Safety Code § 11359 – possession of marijuana for sale; 2. Health and Safety Code § 11358 – cultivation of marijuana; and 3. Health and Safety Code § 11377(a) – possession of a controlled substance – psilocybin). He was also charged with possession of dangerous fireworks without a valid permit (Health and Safety Code § 12677) and domestic violence related charges, including false imprisonment (Penal Code §§ 236-237).
The Sixth Appellate District reversed the trial court. It agreed with Werner that the police had no reason to fear for their safety in any regard. After all, they went to the home in response only to a domestic violence complaint. They were able to arrest the suspect immediately and outside the home. The officer who accompanied the roommate could not articulate any reasonable suspicion that there might have been a dangerous person inside the residence that would justify a warrantless search under the protective sweep doctrine.
In viewing the totality of the circumstances, the Sixth Appellate District found that the officer did not have a particularized and objective basis for his suspicion that there might be a dangerous person in the house. Police knew from the girlfriend that there were two people living in the house. When both residents of the home were in view of the police, they had no reason to believe the house contained anyone else.
For more information about warrantless searches, click on the following articles:For more information about unlawful searches and seizures, click on the following articles:
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