A threshold arrest of defendant in his underwear justifies a protective sweep because he’d have to get his clothes. United States v. Rodriguez-Madera, 2017 U.S. Dist. LEXIS 196636 (D. P.R. Nov. 28, 2017):
Together, these elements are insufficient to meet the reasonable suspicion benchmark necessary to support a protective sweep under Buie. But another variable is at work in this case and leads to a different result: the fact that defendant was in his underwear at the time of the arrest. See, Nascimento, 491 F.3d at 49-50 (sustaining officer’s warrantless entry to bedroom to get clothes for a defendant who was clad only in his underwear at the time of his arrest). At its root, the clothing exception justifies a law enforcement officer’s warrantless entry into a partially clothed arrestee’s home and subsequent seizure of incriminating evidence therein, when the warrantless entry is for the limited purpose of retrieving clothing or shoes for that arrestee. See, United States v. Jackson, 414 F.Supp.2d 495, 504 (D.N.J. 2006)(discussing exception). Review of cases from circuits that have recognized this exception to the warrant requirement shows that it generally falls under one of two categories.
The first category is an of-shoot of the exigent circumstances exception. See, United States v. Clay, 408 F.3d 214 (5th Cir. 2005)(finding that need to procure footwear for barefoot arrestee constituted exigent circumstances justifying officer’s return to bedroom); United States v. Gwinn, 219 F.3d 326 (4th Cir. 2000)(recognizing that an arrestee’s partially clothed status may qualify as an exigency justifying an officer’s temporary reentry into the arrestee’s home to retrieve clothes reasonably calculated to lessen the risk of injury to arrestee); United States v. Butler, 980 F.2d 619, 621-622 (10th Cir. 1992)(allowing officers to retrieve shoes for defendant because broken glass in the area where defendant was arrested presented a legitimate health and safety risk; however, finding that entry into the defendant’s residence could not be effected, in the absence of consent or exigent circumstances, solely upon the desire of law enforcement officers to complete the arrestee’s wardrobe); Nascimento, 491 F.3d at 50 (the need to dress partially clothed individual may constitute an exigency).