To justify a protective sweep, the mere possibility others might be on the premises is not reasonable suspicion under Buie and would essentially cause a protective sweep in every case. United States v. Yarbrough, 2018 U.S. Dist. LEXIS 2883 (N.D. Ala. Jan. 8, 2018):
The court finds that the Government has not met its burden of proving that Investigator Monroy actually possessed a reasonable belief that (1) someone else was inside the Yarbrough home and (2) that person or persons posed a danger to him or others. Neither Investigator Monroy nor Investigator Sims testified that they actually believed anyone other than Mrs. Yarbrough was inside the house, dangerous or not. The closest either came was Investigator Monroy’s testimony agreeing with the prosecuting attorney’s suggestion that “someone could possibly be inside the home still.” (Doc. 22 at 15).
But someone could “possibly be” inside any home at any time. If that were the standard for permitting a protective sweep, police would always be permitted to enter and search homes. Along the same lines, police may not conduct a protective sweep every time they arrest a suspect. If an arrest were the only prerequisite for a protective sweep, the Supreme Court would not have required police to have an individualized, reasonable suspicion that a person posing a danger was present. See Buie, 494 U.S. at 327. Those requirements would be superfluous.
And the Eleventh Circuit has explained that “in the absence of specific and articulable facts showing that another individual, who posed a danger to the officers or others, was inside the warehouse, the officers’ lack of information cannot justify the warrantless sweep.” United States v. Chaves, 169 F.3d 687, 692 (11th Cir. 1999). That requirement makes sense, because the Government carries the burden to prove that an exception applies to the presumption that warrantless searches and seizures violate the Fourth Amendment. See Holloway, 290 F.3d at 1337.
The court also finds that Investigator Monroy did not actually believe anyone besides Mrs. Yarbrough was inside the house because, after he arrested and removed her from the home but before he reentered the home to do the protective sweep, he called Officer Perea and told him, “We’ve got suspects in custody, you can slow down.” (Stipulated Exh. 2 at 1:10-1:19). The court does not believe that Investigator Monroy would have told Officer Perea to slow down if he had believed that someone dangerous was hiding in the house. …