D.S.C.: Arrest in doorway did not justify protective sweep

Defendant’s arrest in his doorway did not justify a protective sweep of the premises under Buie. Moreover, the facts did not support a protective sweep because the police had no evidence to believe that there were others in the defendant’s mobile home, just because he would not tell the police that there was somebody else inside when they asked because he was yelling incoherently. United States v. McCants, 664 F. Supp. 2d 620 (D. S.C. 2009):

While the Supreme Court has recognized that there is a necessary balance between one’s right to privacy and the need for law enforcement officials to ensure their own safety, the Supreme Court has consistently shown a heightened regard for the right to privacy in one’s home. The Government can cite to no precedent, and this Court is aware of none, where any court has held that the arrest of a suspect near the door of a residence automatically allows police to circumvent the warrant requirement (and even the information burden necessary to conduct a protective sweep) and gain the ability to “sneak a peek” inside the residence in question. In fact, some courts have implicitly held the exact opposite. See, e.g., United States v. Stover, 474 F.3d 904, 911 (6th Cir. 2007) (“[D]uring a search incident to an arrest occurring inside a home, officers may ‘as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could immediately be launched.'”) (quoting Buie, 494 U.S. at 327) (emphasis added). Furthermore, several of the guns were not only inside Defendant’s trailer, but inside a closet within the trailer. This, then, went beyond merely looking around to ensure the safety of the officers because they assert Defendant was arrested in very close proximity to the front door. Instead, officers, who lacked probable cause and had no search warrant, walked into Defendant’s trailer through the front door and proceeded to search the entire residence, including closed closets.

The search of defendant’s car could not be justified by the government as a search incident where defendant was handcuffed and in a police car or by inventory, but it could be justified by probable cause. United States v. German, 664 F. Supp. 2d 614 (D. S.C. 2009).*

While defendant’s stop was justified, his questioning after his paperwork came back “clear” was unreasonable, and the motion to suppress should be granted. United States v. Brantley, 2009 U.S. Dist. LEXIS 101307 (E.D. Tex. September 24, 2009)*:

But, after he issued the warning and had clear returns at 9:50 p.m., Sgt. Hemmenway did not inform Defendant or his passenger that they were free to leave. Instead, he detained them further, asking for consent to search, inquiring about illegal drugs in the car, and informing them that they must wait for a K-9 unit to perform an open-air dog sniff.

Therefore, the principal issue before the Court is whether Sgt. Hemmenway had reasonable suspicion to continue detaining Defendant after clearing his driver’s license and vehicle registration at 9:50 p.m. The K-9 unit did not arrive until approximately 19 minutes later.