Protective sweep was unjustified after arrest outside

Defendant was arrested outside. Protective sweep was unjustified because officers lacked any objective reason to believe that there were others inside. United States v. Wilcox, 2008 U.S. Dist. LEXIS 6353 (D. Utah January 29, 2008):

More importantly, Ritchie and the arrest area were all outside the home from the moment officers arrived. Officers entered and searched inside the home. Although an inside search may follow an outside arrest, there still must be a reasonable belief that the arrest area harbors an individual who poses a danger to the officers. Buie, 494 U.S. 325; Owens, 782 F.2d at 151. An officer’s lack of information as to what is inside a home does not validate an in-home search when the arrest occurs outside. Buie, 494 U.S. 325; Colbert, 76 F.3d 778; Carter, 360 F.3d at 1242-43; Delgadillo-Velasquez, 856 F.2d at 1298. In the instant case, the officers had no reason to believe anyone was still in the home who could pose a danger. Ritchie told the officers that no one was in the home, and the officers testified there were no sounds or smells coming from the home. Nobody was visible in the home, despite the door being open, and no one responded to the officers when they called into the home. All evidence before the officers at the time indicated that the home was empty. There is no evidence that suggests a dangerous individual was inside the home which would authorize the officers’ entry. Absent a reasonable and articulable suspicion of such an individual existing, the officers could not enter the home to conduct a protective sweep for officer safety.

The government argues that the search was based on the possibility that an occupant may be injured. The officers, however, had no evidence of a fight or other violent crimes. …

The search warrant in this case was not overbroad, and it properly included evidence of who was in control of the premises. United States v. Poulos, 2008 U.S. Dist. LEXIS 6185 (D. Me. January 25, 2008):

With respect to the second category of items to be seized–identity evidence–I agree with the government that it is reasonably clear from examination of the Warrant and Affidavit (which is attached to and incorporated by reference in the Warrant, see Warrant at 1, and therefore validly may be taken into account in assessing whether the Warrant is overbroad, see, e.g., Roche, 614 F.2d at 8) that the language referencing drug trafficking was mistakenly included. The Affidavit makes clear that the “Reason for Seizure” is to obtain evidence of the crime of reckless conduct; the focus of its customized facts section is the alleged firearm discharge. See Affidavit at [2]-[4]. What is more, as the government suggests, see Response at 10, Cashman, who had drafted the proposed Warrant and Affidavit and understood the Warrant only to authorize search for evidence of the crime of reckless conduct, was present throughout the search, including during a briefing at which all participating agents were advised that the Warrant authorized search for evidence of the crime of reckless conduct. As the government notes, see id., such circumstances militate in favor of a finding that an error is merely technical, see, e.g., United States v. Bianco, 998 F.2d 1112, 1117 (2d Cir. 1993) (“The affidavit was present at the time of the search, and spells out quite clearly the nature and purpose of the proposed search. It explains in detail the motivation behind the search and the nature of the documents sought. When the warrant and affidavit are read together, there is no ambiguity. Moreover, although the warrant may not have explicitly incorporated the affidavit, the presence and activity of agent Hutton, who had read the affidavit and who approved each seizure, satisfies us that the limitations included in the affidavit were observed.”).