E.D.Ky.: Protective sweep justified as a virtual “health and welfare argument”

Protective sweep justified as a virtual “health and welfare argument.” There was a prior home invasion, and people were unaccounted for. United States v. Shephard, 2013 U.S. Dist. LEXIS 51427 (E.D. Ky. March 15, 2013):

This case requires the Court to determine whether police reasonably determined to enter a residential dwelling, without a warrant, after reliably determining that (1) a violent home invasion had recently occurred during which, in the middle of the night, multiple assailants breached the home and bound, tortured, and potentially fractured the skull of a home occupant; (2) other known occupants, including a woman and child, were at the residence during the home invasion; (3) assailants were at large; and (4) police did not have information accounting for the location and condition of the woman and child upon arrival at the scene and entry into the home. Here, the need for police to identify and aid other potential victims in the home was sufficiently compelling, in light of the nature of the confirmed events and the timing, to make a warrantless search objectively reasonable. As such, under recognized Fourth Amendment warrant-exception principles from the Supreme Court and the Sixth Circuit, the entry for purposes of locating and aiding additional victims was proper. While the police did not perfectly handle the initial search and later warrant, the Court recommends denial of the motion to suppress. The entry was valid and, thus, the search warrant itself also was valid.

. . .

Analytically, the Government shifted gears from the briefing to the hearing. In its brief, the United States primarily relied on a Buie-type exigency as justifying entry into the White Oak premises. DE #31 (Response) at 4 (citing Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990), and citing the “protective sweep” permitted in that case). At the hearing, and upon surveying the proof, the Government instead espoused a safety or emergency-aid theory, and expressly did not pursue the “burglary-in-progress” exigency the defense anticipated in its motion to suppress. See DE #39 (Tr.) at 176-77 (“[I]t’s more of a hybrid …. burglary in progress, it absolutely doesn’t fit …. But what these officers indicated … there was a female acquaintance whose whereabouts were unknown. … Officers say there was a child ….Those facts in and of itself will allow the officers to do that limited protective search. It doesn’t go into stop a crime taking place. It’s more of a health and welfare argument.”) (emphasis added). Although the Court does not endorse the written argument, the theory used at the hearing prevails.

The analytical contours are well-defined in this context, and the Court notes a cluster of recent and relevant Supreme Court cases including Kentucky v. King, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011); Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006); and Michigan v. Fisher, 558 U.S. 45, 130 S. Ct. 546, 175 L. Ed. 2d 410 (2009). The Fourth Amendment establishes warrant requirements and bars unreasonable searches and seizures. …

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