Defendant stepped out of his house onto a small covered porch where he was arrested. The protective sweep of the house violated the state constitution. The officers could see a woman inside. Nevertheless, a protective sweep of a house after an arrest outside is unreasonable without specific facts amounting to at least reasonable suspicion justifying the entry. [Here, however, it was all harmless error.] State v. Chambers, 2016 Wash. App. LEXIS 3033 (Dec. 19, 2016):
¶91 The court erred in concluding the police had the authority to conduct a protective sweep of the house incident to arrest for two reasons. First, a warrantless search of “spaces immediately adjoining the place of arrest” [Buie at 334] without probable cause or reasonable suspicion does not apply when the police arrest an individual outside his home. See United States v. White, 748 F.3d 507, 511-12 (3d Cir. 2014) (holding the Buie “prong 1 exception is not available where the arrest took place ‘just outside the home’”); United States v. Archibald, 589 F.3d 289, 296-97 (6th Cir. 2009) (arrest just outside threshold of front door does not meet first prong of Buie). If an individual is arrested just outside his home, a protective sweep “‘must be analyzed under the second prong of the Buie analysis.’” White, 748 F.3d at 512 (quoting Sharrar v. Felsing, 128 F.3d 810, 824 (3d Cir. 1997)); see also United States v. Paopao, 469 F.3d 760, 765-66 (9th Cir. 2006); United States v. Oguns, 921 F.2d 442, 446 (2d Cir. 1990).
¶92 Second, the footnote in Hopkins does not support the court’s conclusion that a protective sweep incident to arrest applies. The case cited in the footnote in Hopkins, United States v. Henry, did not rely on the Buie exception for a protective sweep incident to arrest. In Henry, the court relied on the exception for a protective sweep where police have articulable facts that an individual poses “‘a danger to those on the arrest scene.’” Henry, 48 F.3d at 1284 (quoting Buie, 494 U.S. at 334). In Henry, the “[u]ncontroverted testimony at the suppression hearing … established an objective basis for the officers to fear for their safety after the arrest … just outside the open door” and to conduct a protective sweep of the apartment. Henry, 48 F.3d at 1284.
¶93 In the alternative, the trial court concluded the police were justified in conducting a protective sweep of the kitchen because they had “a reasonable suspicion” that “the area to be searched may harbor an individual posing a danger.”
Buie also allows the police to make a search of areas not directly adjoining the place of arrest when the police have a reasonable belief, based on articulable facts, which warrant a reasonably prudent officer in believing that the area to be searched may harbor an individual posing a danger to those on the arrest scene. …
¶94 To justify a protective sweep when a suspect is arrested outside his home, there must be articulable facts that warrant a police officer in believing “the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334. To establish the second type of a protective sweep is justified, more than a general suspicion of the possibility of danger is required. See Buie, 494 U.S. at 334 n.2 (“Even in high crime areas, where the possibility that any given individual is armed is significant, … reasonable, individualized suspicion [is required] before a [protective sweep] can be conducted.”); United States v. Moran Vargas, 376 F.3d 112, 116 (2d Cir. 2004) (general suspicion, “without more”, that other armed individuals might be in hotel room insufficient to justify protective sweep); United States v. Taylor, 248 F.3d 506, 514 (6th Cir. 2001) (generalized suspicion that defendant is a drug dealer, standing alone, inadequate to justify protective sweep).
¶95 The record does not support the conclusion that there were “articulable facts” that the kitchen harbored “an individual posing a danger.” The police had information that only Chambers shot Hood and was alone when he drove away. The findings establish the only individual in the house when police arrested Chambers was his spouse Sara. “[T]he front door was open” after the arrest and “[t]he police could see” Sara was sitting on the living room couch watching television and remained in the living room.
¶96 We conclude the undisputed facts do not support the warrantless entry and protective sweep of the kitchen under Buie and the court erred in denying the motion to suppress.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)