A protective sweep can be reasonable even with a consent entry if there is potential danger. United States v. Chalas-Felix, 2019 U.S. Dist. LEXIS 203745 (D. Del. Nov. 25, 2019):
The question the Court must address here, however, is whether Buie — despite its arrest-centric language — permits protective sweeps in non-arrest settings and, more specifically, whether it permits protective sweeps when law enforcement gains entry to a home by consent. Neither the Supreme Court nor the Third Circuit has yet opined on this issue, but all of the other federal courts of appeal and at least one state’s highest court (New Jersey’s) have. Moreover, all but one of those appellate courts has upheld in-home protective sweeps in non-arrest settings, including where entry was based on consent. See, e.g., United States v. Holland, 522 F. App’x 265, 276-77 (6th Cir. 2013) (McKeague, J., concurring) (noting that the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits have “concluded that a protective sweep is permissible as long as the officers were lawfully present (whether authorized by arrest warrant, exigent circumstances or consent) and had reasonable, articulable suspicion of danger”); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993) (citing Buie for proposition that “no probable cause [is] required to sweep home to secure officers’ safety” even in absence of probable cause to arrest); United States v. Patrick, 959 F.2d 991, 996, 294 U.S. App. D.C. 393 (D.C. Cir. 1992), abrogated on other grounds by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (“Once the police were lawfully on the premises [as a result of tenant’s consent], they were authorized to conduct a protective sweep based on their reasonable belief that one … inhabitant was trafficking in narcotics.”); New Jersey v. Davila, 203 N.J. 97, 125, 999 A.2d 1116 (N.J. 2010); but see United States v. Davis, 290 F.3d 1239, 1242 n.4 (10th Cir. 2002) (rejecting protective sweep argument because “[w]hen the police in this case entered [the defendant’s] home no one was under arrest, and … there was no probable cause to arrest anyone”).