CA6: Protective sweep requires knowledge, not ignorance

Government failed to show justification for its protective sweep, and suppression order affirmed. A protective sweep requires knowledge, not ignorance. United States v. Archibald, 589 F.3d 289, 2009 FED App. 0423P (6th Cir. 2009):

It is well-settled that arrest warrants are not search warrants. Steagald v. United States, 451 U.S. 204, 212-13, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). Thus, the Supreme Court has identified two types of warrantless protective sweeps of a residence that are constitutionally permissible immediately following an arrest. The first type allows officers to “look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Buie, 494 U.S. at 334. The second type of sweep goes “beyond” immediately adjoining areas but is confined to “such a protective sweep, aimed at protecting the arresting officers[.]” Id. at 334-35. The first type of sweep requires no probable cause or reasonable suspicion, while the second requires “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334. The Supreme Court also “emphasize[d]” that this second kind of sweep is “not a full search of the premises,” but “extend[s] only to a cursory inspection of those spaces where a person may be found” and should last “no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Id. at 335-36.

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Clearly, Buie requires more than ignorance or a constant assumption that more than one person is present in a residence. In Colbert, we stated that a lack of knowledge as to whether others were in a home necessarily failed the Buie standard because that standard requires “articulable facts,” not ignorance:

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. Finally, and perhaps most importantly, allowing the police to justify a protective sweep on the ground that they had no information at all is directly contrary to the Supreme Court’s explicit command in Buie that the police have an articulable basis on which to support their reasonable suspicion of danger from inside the home. “No information” cannot be an articulable basis for a sweep that requires information to justify it in the first place.

Colbert, 76 F.3d at 778. Accordingly, cases that have found that noises emanating from a residence supported a reasonable belief in the presence of other individuals have required contributing facts or stronger evidence than what is presented here supporting the officers’ suspicions that more than one person was present. See, e.g., United States v. Talley, 275 F.3d 560, 562 (6th Cir. 2001) (“officers heard a loud commotion and the sounds of several individuals running throughout the apartment and up and down the stairs”); United States v. Stover, 474 F.3d 904, 910-12 (6th Cir. 2007) (officers observed two cars parked in driveway of duplex — one registered to defendant and the other to a “local criminal” who resided at a different address — and heard noise and movement in house before defendant came downstairs); United States v. Taylor, 248 F.3d 506, 511, 514 (6th Cir. 2001) (holding that protective sweep was justified where officers obtained consent from defendant’s brother to enter defendant’s apartment, heard shuffling noises indicating the presence of multiple persons, had information that defendant was a drug and weapons dealer suspected of numerous murders, saw a marijuana stem in plain view, and observed defendant’s brother behaving nervously).