CA2: Protective sweep during “knock and talk” was legally unjustified

The police did a “knock and talk” and then did a protective sweep without reason. The protective sweep was invalid. United States v. Hassock, 631 F.3d 79 (2d Cir. 2011):

In this case, it is not necessary to determine whether the protective sweep exception is limited to situations involving the execution of legal process (as was the case in Miller) or extends (as the government urges) to any situation where police are lawfully on the premises for a legitimate governmental reason antecedent to the sweep. Certainly the agents here had no legal process and, although they went to the Hassock apartment with a legitimate purpose — the questioning and possible arrest of Hassock — when Hassock did not answer the door, that purpose could not be pursued until Hassock was found. Under these circumstances, the sweep cannot be viewed as a reasonable security measure incident to Hassock’s interrogation or arrest. Instead, the “sweep” itself became the purpose for the agents’ continued presence on the premises insofar as they thereby searched the location for Hassock. As the district court found, it may have been objectively reasonable for agents to think that Hassock’s presence on the premises posed a danger to their safety. See United States v. Hassock, 676 F. Supp. 2d at 158-59. But a protective sweep is reasonable only to safeguard officers in the pursuit of an otherwise legitimate purpose. Where no other purpose is being pursued, a sweep is no different from any other search and, therefore, requires a warrant, exigency, or authorized consent, none of which were present here. Specifically, it was not apparent to the agents of the task force that the young woman who admitted them to the apartment was clothed with any authority that would allow her to consent to a search of the premises. Her discussion with the agents was very brief — she said she had just awakened, that she did not know who was present in the apartment, and answered in the affirmative in response to an agent’s request to “look around.” It was not until after the search was complete that the agents spent some time with the woman, learned her identity, her relationship with the co-tenant of the apartment, and other information. And so it was that, with the limited information available and without ascertaining the woman’s authority to consent, the officers pressed forward in a search for Hassock. (The government concedes that there was no authority of any kind to enter Hassock’s bedroom). The original purpose of the “knock and talk” thereupon became an illegitimate search for Hassock incident to no other lawful police conduct, which cannot be characterized as a protective sweep.