S.D.Ala.: Defendant closed door on arresting officers, got dressed, and surrendered; protective sweep unjustified

USMS showed up at defendant’s house to arrest him. He came to the door in his underwear, and there was a locked security door between him and the officers. He said he’d unlock the door, and he closed the inside door. They heard sounds inside. The officers essentially panicked that he was arming himself, and they were preparing to pry the security door off when he opened it, unlocked it, and came out and surrendered. The protective sweep under Buie was unjustified because there was no reasonable belief anybody else was inside. Otherwise, Buie would justify an entry in every case. United States v. Simmons, 2013 U.S. Dist. LEXIS 106328 (S.D. Ala. July 30, 2013):

First, Simmons’ “retreat” lasted only 45 seconds, which can hardly be characterized as a “long delay.” After he returned to the back door, unlocked the security door, stepped outside and was arrested, whatever suspicion may have been caused by his retreat was dispelled. The movement the deputies heard inside the house occurred in the 45-second interval after Simmons closed the door and before he came back and opened the security door. After Simmons came out, Tameka Jones also came outside, and there was no evidence that any movement was heard from inside after that point. This evidence—brief retreat, movement from inside, followed by the exit of two persons from the residence—does not justify the assumption that other people remained inside. See United States v. Archibald 589 F.3d 289, 300-01 (6th Cir. 2009) (officers could not know from hearing movement inside prior to arrest whether more than one person was inside).

To the extent that the government relies on the danger posed by the situation to justify the search, that reliance is misplaced. The charges against the Defendant cannot provide the basis for reasonable suspicion to conduct a protective sweep after the Defendant has been taken into custody and no longer poses a danger. See United States v. Colbert, 76 F.3d 773, 777 (6th Cir. 1996) (“[defendant’s] dangerousness is not germane to the inquiry into whether the police may conduct a protective sweep in response to a reasonable suspicion of a threat from some other person inside the home”). Likewise, generalizations about dangers posed by certain types of criminals are insufficient to support a protective sweep. United States v. Moran Vargas, 376 F.3d 112, 115-16 (2nd Cir. 2008) (finding that link between drug courier meetings and motel rooms and between drug traffickers and guns did not provide reasonable suspicion that a dangerous person was hiding in the motel room of suspected drug courier).

The government has placed particular emphasis on the danger this arrest situation posed to the officers. The risk of danger to law enforcement at the arrest scene does not provide reasonable suspicion that a person is lurking inside the residence. Otherwise, Buie would be rendered meaningless because every potentially dangerous arrest would justify a protective sweep. Furthermore, officers’ “perceived vulnerability” does not demonstrate a specific and reasonable belief that other persons are present and pose a danger. United States v. Archibald, 589 F.3d 289, 299-300 (6th Cir. 2009). This is especially true where the danger can be avoided or mitigated. Id. (if inability to see down hallway from inside front door posed danger, prudent course of action would have been to back away, not proceed through the door).

In this case, the deputies testified that they were vulnerable to attack after the arrest as they waited for a patrol car to transport the suspect. According to Buie, a protective sweep should last “no longer than it takes to complete the arrest and depart the premises.” Buie, 494 U.S. at 335. To reduce their vulnerability to attack from inside the house, the deputies could have used their considerable force (six to eight officers armed with side arms and long arms) to provide cover while they loaded Simmons into one of their cars and departed. The evidence established that it was their choice to wait on the premises for a patrol car when they easily could have transported the Defendant from the scene themselves.