{"id":10084,"date":"2014-03-05T17:40:31","date_gmt":"2013-12-26T07:15:43","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-12-26T07:15:43","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=10084","title":{"rendered":"CA7: Protective sweep is based on RS of a potential threat; quibbling about the details doesn\u2019t make it unreasonable"},"content":{"rendered":"

The standard for a protective sweep is reasonable suspicion to think it\u2019s necessary. \u201cThe inquiry is an exceptionally fact-intensive one in which we must analyze myriad factors including, among other considerations, the configuration of the dwelling, the general surroundings, and the opportunities for ambush. … An ambush in a confined setting of unknown configuration is just such a situation in which an officer might need to perform a protective sweep. Buie, 494 U.S. at 333 …. [\u00b6] In this case there were many other substantial, particularized factors that would allow a reasonable officer to conclude that he, his fellow officers, or another bystander might face danger.\u201d Quibbling about the details doesn\u2019t make it unreasonable. United States v. Starnes<\/a>, 741 F.3d 804 (7th Cir. 2013):<\/p>\n

<\/p>\n

Starnes argues that Buie and Tapia can be distinguished as they both addressed protective sweeps incident to an arrest in a home rather than the execution of search warrant. The philosophy behind a protective sweep, however, remains the same regardless of how the officers arrived in the home. When officers enter the residence of a criminal suspect and have reason to believe that a particular area might harbor an individual (or as in this case, an individual and an animal) who poses a danger to the officers or others, the Fourth Amendment permits a quick and limited protective sweep. As the Supreme Court reasoned, officers who are in a criminal suspect’s home face the disadvantage of being on an adversary’s turf and subject to ambush. Thus the constitutionality of a protective sweep does not depend on whether that sweep is incidental to a search warrant, an arrest warrant, or a consensual search. … What matters are the specific facts that would give a reasonable officer, who is lawfully inside a home, a “reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[] the officer in believing that the area swept harbored an individual posing a danger to the officer or others.” Buie, 494 U.S. at 327 (internal citations omitted).<\/p>\n

Starnes’ arguments about inconsistencies in the detectives’ description of the protective sweep and its rationale are irrelevant. As long as the officer had a reasonable belief of the danger, based on specific articulable facts, any inconsistencies in his reporting do not matter. See Id. at 327. As we noted above, a bevy of facts supports the conclusion that such a sweep was reasonable and prudent. In any event, the district court found credible the detective’s explanation that he swept the upper apartment for potential threats and that the search constituted a protective sweep irrespective of the fact that his report did not use this precise term. …\n<\/p><\/blockquote>\n

And don’t use “said” to identify something just identified. Apparently, “said apartment” instead of “the apartment.” Damn, that’s annoying legalese. Frankly, it drives me up the wall, too:<\/p>\n

FN1 As we recite the facts in this case, it occurs to us that this is a good time to remind the bar that judges, like most other people, prefer to read briefs written in straightforward, plain language and not legalese. Beginning each sentence with the word “that” or preceding each previously described concept with the word “said,” and other oddities stereotypically associated with lawyers, disrupts the flow of a brief and thus weakens its impact. The same is true when a brief recites the facts by describing each witness’ testimony piecemeal rather than by telling a story chronologically. As judges we are able to divorce the distracting text from the content in evaluating a case, but the role of a prudent advocate is to make the court’s job easier, not more difficult. There are many illuminating books on writing effective briefs and every practitioner before this Court would be wise to invest a few hours in reading one.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-10084","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/10084","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10084"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/10084\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10084"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10084"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10084"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}