Post details: N.D.Ga.: A practical rarity: Protective sweep unjustified

04/17/13

Permalink 07:58:37 am, by fourth, 448 words, 761 views   English (US)
Categories: General

N.D.Ga.: A practical rarity: Protective sweep unjustified

Something one doesn’t see often: Officers couldn’t support need for a protective sweep, so the entry is suppressed. United States v. Anyanwu, 2013 U.S. Dist. LEXIS 53582 (N.D. Ga. March 18, 2013):

[More:]

In this case, however, there was a complete absence of specific and articulable facts sufficient to support a reasonable belief that the area to be swept harbored an individual posing a danger to those on the arrest scene. Neither of the agents who testified articulated any such facts, other than to recite that the sweep was done for safety of the officers and others, and is standard operating procedure in every case where an arrest is made. [T. 10-11, 36, 48]. Indeed, the facts known by the agents negated any such reasonable belief. The agents did not expect to find any weapons and had no reason to believe they would find any weapons. [T. 11, 33]. The agents had no reason to believe that there were any other persons on the premises other than Defendant, his wife, and his step daughter, all of whom were present and secured as soon as the agents entered the house. [T. 27, 35]. The agents knew that the premises were Defendant's home and that he lived there with his family. The offense for which Defendant was being arrested, visa fraud, was not inherently violent or associated with violence.

"The legality of the protective sweep is a difficult question. It requires balancing two deeply important interests—the lives of law enforcement officers and the constitutional right of the people to be secure in their homes under the Fourth Amendment." United States v. Delancy, 502 F.3d 1297, 1307 (11th Cir. 2007). Nevertheless, the Supreme Court in Buie made it clear that such a search of an arrestee's home could only be justified under limited circumstances. And in this case, the government has not carried its burden of showing that the limited circumstances were present. At best, the agents relied upon the fact that they did not know if there was anyone else in the house, as opposed to specific and articulable facts showing that there was someone posing a danger in the house. Such lack of information is not enough. Chaves, 169 F.3d at 692; accord United States v. Colbert, 76 F.3d 773, 778 (6th Cir. 1996) ("Lack of information cannot provide an articulable basis upon which to justify a protective sweep."); see also Sharrar v. Felsing, 128 F.3d 810, 825 (3d Cir. 1997) ("agree[ing] with ... Colbert that '[n]o information cannot be an articulable basis for a sweep that requires information to justify it in the first place'").

In summary, therefore, the undersigned finds that the protective sweep of Defendant's home was unauthorized under Buie and in violation of the Fourth Amendment.

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