S.D.Ohio: Gov’t failed its heavy burden of justifying protective sweep on arrest of a houseful of people

The government failed in its heavy burden of proving the validity of the protective sweep it conducted on the defendant’s apartment as all the occupants were arrested as they came out one by one. United States v. Wynn, 2013 U.S. Dist. LEXIS 168368 (S.D. Ohio November 25, 2013):

According to Special Agent Ferguson, his arrest of Wynn justified the entry and protective sweep. This purported justification states no facts from which danger to the officers from anyone other than Defendant Wynn might be inferred. Again, there is a dearth of articulable facts about danger that officers feared from a third party other than the “defendant under their control” outside the apartment. United States v. Biggs, 70 F.3d 913, 916 (6th Cir. 1995). Biggs, which the Government cites, further illustrates this requirement. In Biggs, the Sixth Circuit upheld a protective sweep of a motel room 20-75 feet from the arrest site based on articulable facts about another individual, namely: a tip that “another person would be meeting defendant at the motel room,” the fact that the defendant “had been arrested on two previous occasions in the presence of someone in possession of a firearm,” and the fact that the defendant left the door open in a way to provide “a clear view of the officers” from inside the room. Id. See also United States v. Stover, 474 F.3d 904, 912 (upholding protective sweep based upon the presence of a car parked in the defendant’s driveway that was registered to a local criminal, justifying belief that another adult was in the house). In both Biggs and Stover, articulable facts about a potentially dangerous third party justified the sweep. Here, in contrast, there are no facts, after Wynn’s arrest outside the apartment, from which to infer the existence of a third party that amounts to more than mere speculation.

In short, the Government has failed to meet the “heavy burden” that it bears in order to overcome the presumptive unreasonableness of a warrantless entry into a home. United States v. Langley, 466 F.2d 27, 34 (6th Cir. 1972) (citing United States v. Jeffers, 342 U.S. 48, 51, 72 S. Ct. 93, 96 L. Ed. 59(1951)). None of the occupants of the Indian Runn apartment resisted arrest as the officers pulled them out, one by one, into the hallway outside. Crucially, Special Agent Ferguson testified that he observed no activity that posed a danger to the officers after arriving at the apartment, nor was any reported to him. Doc. #41 at 65-66. Buie requires more. Here, as in Archibald, “the prudent course of action would have been to back away from the door, not proceed through it.” 589 F.3d at 299.