{"id":24900,"date":"2016-12-22T07:57:21","date_gmt":"2016-12-22T12:57:21","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=24900"},"modified":"2016-12-22T07:57:21","modified_gmt":"2016-12-22T12:57:21","slug":"wa-arrest-on-defs-porch-does-not-justify-protective-sweep-of-his-house","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=24900","title":{"rendered":"WA: Arrest on def’s porch does not justify protective sweep of his house"},"content":{"rendered":"

Defendant stepped out of his house onto a small covered porch where he was arrested. The protective sweep of the house violated the state constitution. The officers could see a woman inside. Nevertheless, a protective sweep of a house after an arrest outside is unreasonable without specific facts amounting to at least reasonable suspicion justifying the entry. [Here, however, it was all harmless error.] State v. Chambers<\/a>, 2016 Wash. App. LEXIS 3033 (Dec. 19, 2016):
\n<\/p>\n

\u00b691 The court erred in concluding the police had the authority to conduct a protective sweep of the house incident to arrest for two reasons. First, a warrantless search of \u201cspaces immediately adjoining the place of arrest\u201d [Buie at 334] without probable cause or reasonable suspicion does not apply when the police arrest an individual outside his home. See United States v. White, 748 F.3d 507, 511-12 (3d Cir. 2014) (holding the Buie \u201cprong 1 exception is not available where the arrest took place \u2018just outside the home\u2019\u201d); United States v. Archibald, 589 F.3d 289, 296-97 (6th Cir. 2009) (arrest just outside threshold of front door does not meet first prong of Buie). If an individual is arrested just outside his home, a protective sweep \u201c\u2018must be analyzed under the second prong of the Buie analysis.\u2019\u201d White, 748 F.3d at 512 (quoting Sharrar v. Felsing, 128 F.3d 810, 824 (3d Cir. 1997)); see also United States v. Paopao, 469 F.3d 760, 765-66 (9th Cir. 2006); United States v. Oguns, 921 F.2d 442, 446 (2d Cir. 1990).<\/p>\n

\u00b692 Second, the footnote in Hopkins does not support the court’s conclusion that a protective sweep incident to arrest applies. The case cited in the footnote in Hopkins, United States v. Henry, did not rely on the Buie exception for a protective sweep incident to arrest. In Henry, the court relied on the exception for a protective sweep where police have articulable facts that an individual poses \u201c\u2018a danger to those on the arrest scene.\u2019\u201d Henry, 48 F.3d at 1284 (quoting Buie, 494 U.S. at 334). In Henry, the \u201c[u]ncontroverted testimony at the suppression hearing \u2026 established an objective basis for the officers to fear for their safety after the arrest \u2026 just outside the open door\u201d and to conduct a protective sweep of the apartment. Henry, 48 F.3d at 1284.<\/p>\n

\u00b693 In the alternative, the trial court concluded the police were justified in conducting a protective sweep of the kitchen because they had \u201ca reasonable suspicion\u201d that \u201cthe area to be searched may harbor an individual posing a danger.\u201d<\/p>\n

Buie also allows the police to make a search of areas not directly adjoining the place of arrest when the police have a reasonable belief, based on articulable facts, which warrant a reasonably prudent officer in believing that the area to be searched may harbor an individual posing a danger to those on the arrest scene. …<\/p>\n

\u00b694 To justify a protective sweep when a suspect is arrested outside his home, there must be articulable facts that warrant a police officer in believing \u201cthe area to be swept harbors an individual posing a danger to those on the arrest scene.\u201d Buie, 494 U.S. at 334. To establish the second type of a protective sweep is justified, more than a general suspicion of the possibility of danger is required. See Buie, 494 U.S. at 334 n.2 (\u201cEven in high crime areas, where the possibility that any given individual is armed is significant, \u2026 reasonable, individualized suspicion [is required] before a [protective sweep] can be conducted.\u201d); United States v. Moran Vargas, 376 F.3d 112, 116 (2d Cir. 2004) (general suspicion, \u201cwithout more\u201d, that other armed individuals might be in hotel room insufficient to justify protective sweep); United States v. Taylor, 248 F.3d 506, 514 (6th Cir. 2001) (generalized suspicion that defendant is a drug dealer, standing alone, inadequate to justify protective sweep).<\/p>\n

\u00b695 The record does not support the conclusion that there were \u201carticulable facts\u201d that the kitchen harbored \u201can individual posing a danger.\u201d The police had information that only Chambers shot Hood and was alone when he drove away. The findings establish the only individual in the house when police arrested Chambers was his spouse Sara. \u201c[T]he front door was open\u201d after the arrest and \u201c[t]he police could see\u201d Sara was sitting on the living room couch watching television and remained in the living room.<\/p>\n

\u00b696 We conclude the undisputed facts do not support the warrantless entry and protective sweep of the kitchen under Buie and the court erred in denying the motion to suppress.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Defendant stepped out of his house onto a small covered porch where he was arrested. The protective sweep of the house violated the state constitution. The officers could see a woman inside. Nevertheless, a protective sweep of a house after … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[22],"tags":[],"class_list":["post-24900","post","type-post","status-publish","format-standard","hentry","category-protective-sweep"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/24900","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\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=24900"}],"version-history":[{"count":1,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/24900\/revisions"}],"predecessor-version":[{"id":24901,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/24900\/revisions\/24901"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=24900"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=24900"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=24900"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}