NY3: Fight in one room didn’t justify protective sweep of back rooms

Police responded to a disturbance call and heard a fight going on inside. The door was unlocked and they entered. They separated the combatants, and then the wife of the non-aggressor entered the room and sat down, too. They decided to do a protective sweep and found somebody uninvolved in the back of the house and a meth lab. The protective sweep was unjustified by finding merely a glass pipe on the aggressor. People v. Harris, 2016 NY Slip Op 05670, 2016 N.Y. App. Div. LEXIS 5531 (3d Dept. July 28, 2016):

The concurrence notes that, in gauging the safety of the situation, the officer who conducted the protective sweep was not limited to information provided by the occupants of the apartment, but could make his own assessment based on the totality of the circumstances. While we agree with this as a general statement, we cannot agree with the suggestion that the officer’s observation of a glass pipe and suspected narcotics in the aggressor’s bedroom provided articulable facts that warranted the belief that an individual in the back bedroom posed a danger to those in the living room. In our view, the facts known to the officer — prior to the entry and search of defendant’s bedroom — do not support a belief that there was any such threat. Rather, the altercation had been subdued and the situation was no longer volatile. In short, the record lacks the requisite articulable facts that would lead a reasonably prudent officer to believe that, once defendant’s wife had exited the bedroom and prior to the officer’s entry into it, there was anything within that posed a danger to the others at the scene so as to justify a protective sweep of that room ….