GA: No factual support for police conclusion a protective sweep was justified

The evidence here does not support the trial court’s findings that a protective sweep was justified. Two officers entered the house after defendant and he was subdued, and inside there was the defendant and two others. There was no suggestion there was a fourth sufficient to provide a factual basis under Buie. Causey v. State, 2015 Ga. App. LEXIS 594 (Oct. 15, 2015):

At first blush, this appears to be a close case and that some evidence supports the trial court’s findings, which is all that is required by the standard of review. But, as shown below, the State presented no evidence to support the conclusion that a reasonable officer could have reasonably believed that additional dangerous individuals were in the home. The trial court found that because the officers were pursuing a felon fleeing toward the back of the house, they could reasonably believe that there might be another person in the back of the house thereby warranting a protective sweep while they waited for medical personnel to arrive. The “fast moving” nature of the situation is also relevant. And “[a]lthough we review police actions from the standpoint of a hypothetical ‘reasonable’ officer, we must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit.” State v. Brannan, 222 Ga. App. 372, 373 (1) (474 SE2d 267) (1996) (citation and punctuation omitted).

Nevertheless, Schwartz never testified to any facts to support a belief that there were more than three people in the house before the officers arrived. Nor did he testify to any facts that developed after the officers arrived that support an inference that there were more than three people, other than officers, in the house when the officers actually entered the house. Although he testified that he saw two “flashes” after Powell ran by (one of whom he recognized as a fellow officer), Schwartz never testified that he thought the other flash was someone other than an officer, and the facts show that at least one more officer who entered through the front door ended up in the bathroom subduing Powell. Also, even though Schwartz testified that the occupants’ outstanding warrants and reputations gave him concern about who else could be in the house, the trial court specifically found that fact to be irrelevant.

In Buie, the Supreme Court rejected a “bright-line rule” that police should be permitted to conduct a protective sweep whenever they make an in-home arrest for a violent crime. Buie, 494 U. S. at 334 (III), n. 2. Instead, following the reasoning of Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LEd2d 889) (1968), the Supreme Court held even though some danger might exist, a protective sweep requires a “reasonable, individualized suspicion” of that danger: …

Georgia and Eleventh Circuit Cases applying Buie are consistent in requiring that some facts be presented that show or raise a reasonable inference that other persons who might present a danger are present in the home, not simply uncertainty as to whether such persons are present. For example, in United States v. Hollis, 780 F3d 1064, 1069 (III) (A) (11th Cir. 2015), the government presented evidence that the officers had been told that the apartment was a “‘drug house,’ with a ‘high level of activity,’ where ‘people were in and out of the house all hours of the day or night,’ and that they ‘could expect to encounter a number of people inside.’” Id. (punctuation omitted). Accordingly, the officers were authorized to make a rational inference that there might be armed individuals present. Id. In United States v. Chaves, 169 F3d 687 (11th Cir. 1999), the Eleventh Circuit held that where officers had no information regarding the inside of a warehouse, they had no specific and articulable facts to show the presence of another individual in the warehouse who posed a danger to the officers even though two armed men suspected of being involved in drug activity exited the warehouse in the officers’ presence. Id. at 689, 692. See also United States v. Sunkett, 95 FSupp2d 1367, 1372 (II) (A) (N.D. Ga. 2000) (fact that someone else “might be” present is not enough to support a protective sweep).