S.D.W.Va.: Protective sweep may occur on entry by consent

A protective sweep may occur without a search incident where the officers are inside by consent. United States v. Davis, 2008 U.S. Dist. LEXIS 96780 (S.D. W.Va. November 25, 2008) (recognizing a split in the circuits):

The facts of this case are distinguishable from Buie in that the officers in this case were in Defendant’s hotel suite with his consent and that he was not under arrest at the time of the protective sweep. Defendant argues that Buie‘s holding should be limited to protective sweeps conducted as part of searches incident to arrest. Several courts have addressed factual situations similar to the case at bar in light of Buie, but the Fourth Circuit is not among them. Unsurprisingly, these authorities are split as to whether law enforcement actions similar to those in this case are reasonable. This may be due, in large part, to the inherently fact-based nature of the balancing test. The reasoning in these cases is instructive nonetheless.

The Eighth, Ninth, and Tenth Circuits have held that a protective sweep may be performed only as part of a search incident to arrest. …

Other courts have extended Buie protective sweeps to other non-arrest situations. …

As a threshold matter, the Court is not persuaded by Defendant’s argument that a protective sweep can be conducted only as part of a search incident to arrest. Based on the cases cited above, it appears that Defendant’s argument has been adopted by three courts of appeals, but it has been rejected by at least five. In the absence of guidance from the Fourth Circuit, this Court is inclined to side with the weight of authority. Moreover, the courts that have rejected arguments similar to Defendant’s are more in line with the Supreme Court’s reasoning in Buie, Terry, and Long. The competing interests balanced by the Buie Court–a suspect’s right to be free from unwarranted intrusions and law enforcement officers’ safety–are no less present because a suspect is not under arrest. Obviously, a suspect’s privacy interest is equally present whether he is being arrested or merely questioned by the police. Likewise, law enforcement officers may be at risk from unknown threats whether they are in a home to execute a search warrant or to speak with a suspect. As some courts have noted, see, e.g., Gould, 364 F.3d at 584, law enforcement officers may, in certain circumstances, be at greater risk from hidden dangers where a suspect is not in custody; in such situations the officers may be preoccupied with the unrestrained and potentially dangerous suspect while undisclosed persons are planning an ambush elsewhere in the residence. Precluding officers from conducting protective sweeps of residences unless an arrest has occurred disregards the important officer safety interest recognized in Terry and its progeny without good reason, and such a rule could endanger law enforcement officers in some situations. Thus, the Court finds that a protective sweep that is not part of a search incident to arrest is not per se unreasonable. For the same reasons, a protective sweep is not unreasonable simply because the officers were invited into the residence.