OH2: No testimony supported RS for protective sweep; two cars in driveway alone wasn’t enough

Two cars in the driveway doesn’t translate into two people in the house. The protective sweep of defendant’s house was unreasonable because the officers identified no facts at all to indicate a reasonable belief someone else was there: no sounds of others, no safety concerns, not anything testified to. [Buie is based on reasonable suspicion of the possibility of others, and the two car rationale seems a post hoc rationalization.] State v. Byrd, 2017-Ohio-6903, 2017 Ohio App. LEXIS 3001 (2d Dist. July 21, 2017):

[*P31] The common thread across the testimony of the three police officers is that none of them were aware of the presence of any other individuals in the house other than Nason. At the time of the warrantless entry, none of the officers knew who resided at 1641 South Smithville. In fact, the State stipulated at the suppression hearing that at the time of the arrest of Nason, the Dayton Police had no idea that Byrd was living at 1641 South Smithville Road. Id. at 41-42. Further, none of the officers heard any activity or sounds coming from inside of the house while the house was surrounded and did not see anyone enter or leave the house other than when Nason attempted to escape out a window in the back of the house. The facts before us are consistent with the facts in Sharpe and McLemore where there was lacking any facts that would permit the officers to form a reasonable and articulable belief that other persons were in the home and that these persons posed a danger to the officers or needed assistance.

[*P32] The trial court relied heavily on the fact that there were two cars in the driveway and that the officers were not aware of any connection between Nason and the house to infer that there was a “significant possibility that the individuals who lived at the home were present.” Dkt. 21, p. 6. But this finding is inconsistent with the testimony of the police officers, as none of the officers testified that the two cars led them to believe there were other individuals inside the house. In fact, the officers testified that they were not aware of anyone being inside the house with Nason and that they did not see or hear any activity inside the house. Accordingly, their testimony is consistent with conducting a protective sweep as a matter of course rather than doing so due to any heightened safety concerns derived from particular observations or information the officers obtained after arriving at 1641 South Smithville Road. “Clearly, Buie requires more than ignorance or a constant assumption that more than one person is present in a residence.” United States v. Archibald, 589 F.3d 289, 300 (6th Cir.2009). “In fact, allowing the police to conduct protective sweeps whenever they do not know whether anyone else is inside a home creates an incentive for the police to stay ignorant as to whether or not anyone else is inside a house in order to conduct a protective sweep.” Id. Further, “an overly generous application of the ‘protective sweep’ exception could swallow the presumptive rule against warrantless searches of houses.” United States v. Barone, 721 F. Supp.2d 261, 275 (S.D.N.Y.2010).

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