The protective sweep in defendant’s small home was not justified by the circumstances, but it did not taint the subsequent consent. United States v. Smallwood, 2014 U.S. Dist. LEXIS 96248 (N.D. Ga. June 27, 2014). Interesting discussion of Buie before turning to consent:
The protective sweep in this case does not fall under either of the scenarios articulated by the Supreme Court in Buie. First, the sweep was not a permissible type-one Buie search for which no reasonable suspicion is necessary because Smallwood was arrested outside of the residence, and the first category of Buie search applies only to in-home arrests. See United States v. Scott, 517 F. App’x 647, 649 (11th Cir. 2013) (per curiam) (unpublished) (collecting cases) (citations omitted). This distinction is not without significance. Following Buie, the Eleventh Circuit and other courts have drawn a sharp line between in-home arrests and arrests occurring immediately outside the home, and have found that reasonable suspicion is required to conduct a protective sweep of a residence even when the arrest takes place at the “threshold” of the door or “just outside” the residence. See, e.g., id. at 648-49 (citations omitted) (where defendant was arrested “just outside the front door,” protective sweep “not justified under Buie absent reasonable suspicion that there were dangerous individuals in the home”); Barsoum, 2012 WL 1405699, at *1-3 (protective sweep incident to arrest held invalid where agents arrested defendant on the “portico” outside the “threshold” of his house); see also United States v. Wright, 324 F. App’x 800, 803 (11th Cir. 2009) (per curiam) (unpublished) (internal marks omitted) (quoting Payton, 445 U.S. at 590) (“[T]he Fourth Amendment has drawn a firm line at the entrance to the house.”). Cf. Sunkett, 95 F. Supp. 2d at 1368-71 (type-one Buie sweep of residence held valid where defendant was arrested during physical altercation with officers “just outside the front door,” but where defendant was initially engaged by officers while he was completely inside the residence, and then turned and ran further inside the residence to evade arrest; and where other officers were already lawfully inside the residence at the time of the arrest, having entered through the back when they heard the ensuing struggle inside). Investigator Crea clearly affirmed at the evidentiary hearing that it was his understanding that Smallwood was arrested outside, not inside, the house, (Tr. at 35); and Investigator Duffield explained that the officers initially “made contact” with Smallwood and placed him in handcuffs, after he had already been “ordered to the ground in the front yard.” (Tr. at 67); see also (Tr. a 85). Thus, the protective sweep of the residence in this case was not a valid type-one Buie search because the arrest occurred outside of the residence.
Nor is the Court persuaded by the government’s contention that the sweep in this case may be justified as a type-two Buie sweep. Neither Investigator Crea nor Investigator Duffield, both of whom had observed the house shortly before the arrest, had any reason to believe that anyone other than Smallwood, whose car was parked outside, was inside the residence. See (Tr. at 31, 78). And contrary to the government’s contention, see [Doc. 56 at 16-17], the fact that Mrs. Smallwood eventually stepped out of the house, carrying a small child, did not make it any more likely that a dangerous individual remained within, particularly since Smallwood had already been apprehended at that time. See (Tr. at 11, 72, 85). To be sure, the officers could not have known with certitude whether anyone else was inside the house, but the mere “lack of information about whether anyone inside the house posed any danger cannot be used to justify a protective sweep.” Scott, 517 F. App’x at 649 (citation omitted).
The house was also “very small,” (Tr. at 36), and there is no indication that any other vehicles besides the Charger were parked at the residence, see (Tr. at 9, 20, 64-65). And while Investigator Duffield testified that he conducted the sweep to ensure officer safety because there was a firearms charge involved, (Tr. at 73), that charge was only against Smallwood, and the sweep occurred only after Smallwood was taken into custody, see (Tr. at 85). Similarly, while Investigator Crea knew that a firearms charge was involved and that Smallwood had a previous arrest for aggravated assault, see (Tr. at 26, 28), he indicated at the evidentiary hearing that he had no reason to be especially cautious in attempting to effect Smallwood’s arrest at his residence, (Tr. at 26). Investigator Duffield also stated that he was concerned about officer safety because the officers had their backs to the residence at certain points, and the officers could not see inside the house, while people within the house could see outside. (Tr. at 73, 75). However, this is true virtually any time an arrest is made outside of a residence, but that alone does not give rise to a reasonable inference that an individual posing a threat to officer safety is concealed inside the residence. Under the totality of the facts and circumstances of this case, therefore, there was no reasonable basis for believing that Smallwood’s residence harbored an individual posing a danger to those on the arrest scene after Smallwood was taken into custody in the front yard and his wife and the child she was carrying had exited the residence, and the sweep may not be justified as a valid type-two Buie search incident to arrest.
That the sweep was not permitted under the circumstances elaborated in Buie does not end the Court’s inquiry, however, because “most courts … have expanded Buie beyond in-home arrests … to all situations wherein officers are lawfully present in a home.” Legette, 260 F. App’x at 249-50 (citations omitted). The government argues that even if the sweep cannot be justified as a protective sweep incident to arrest, the officers were nonetheless entitled to sweep the residence once they had already entered for independently valid reasons. See [Doc. 56 at 19-21]. Specifically, the government contends that the officers were lawfully inside the residence “based on Smallwood’s invitation to enter, and for their interview of [Mrs. Smallwood],” [id. at 19 (emphasis omitted)], and that, once inside, the officers properly swept the residence to ensure their safety. However, the officers’ conversation with Mrs. Smallwood cannot serve to justify the protective sweep because the sweep was conducted before the officers accompanied Mrs. Smallwood back into the house to talk to her. See (Tr. at 11-12, 85). Regardless of Investigator Crea’s reasons for wanting to speak with Mrs. Smallwood inside the house, see [Doc. 56 at 21], the fact remains that the officers were not lawfully in the house with the consent of Mrs. Smallwood at the time the sweep took place.
