N.D.Cal.: No response to a flash bang device wasn’t determinative of protective sweep

The police entered on an arrest warrant and then conducted a protective sweep. There was no response to a flash bang device, and that was not determinative of whether the protective sweep could legally occur. United States v. Gomez, 2014 U.S. Dist. LEXIS 33816 (N.D. Cal. March 14, 2014):

As in Hoyos, these facts, and the officers’ earlier observations during surveillance that multiple subjects came and went to the property, support the officers’ belief that others may have been in the house. In particular, the officers observed an unknown subject let Gomez into the house while he was under pursuit, so the facts known to the officers support their belief that other dangerous persons may have been in the house.

Gomez contends however that it was unreasonable for the officers to conduct a protective sweep of the detached garage after taking Gomez into custody and deploying a flash-bang grenade in the detached garage, to which no one responded. The fact that the officers used a flash-bang device is not determinative of whether they believed that others may have been in the detached garage. The fact that during surveillance, officers had observed multiple subjects come and go through the gate leading to the detached garage, and the fact that officers had just seen two other suspects, who were taken in custody after fleeing from the property, support the officers’ belief that other dangerous persons might have remained in the detached garage. Furthermore, the sealed, ex parte affidavit submitted by the government in opposition to the motion to suppress provides strong factual support to justify the protective sweep. The specific facts articulated by the officers, to support their belief that other dangerous persons may have been on the premises, establish the presence of exigent circumstances to justify the protective sweep here.