{"id":3578,"date":"2009-11-30T08:27:59","date_gmt":"2009-11-30T08:27:59","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-11-30T08:27:59","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3578","title":{"rendered":"M.D.N.C.: Arrest outside house with exigency permitted protective sweep"},"content":{"rendered":"

A protective sweep under Buie<\/a> can occur after an arrest outside if there is reason to believe that a danger lurks inside. United States v. Kilfoil, 2009 U.S. Dist. LEXIS 110290 (M.D. N.C. November 23, 2009)*:<\/p>\n

Though not noted by the parties, it appears well-established in the majority of circuits that the protective sweep exception, as defined in Buie<\/a>, justifies entry into a residence where an arrest is made outside, even in the absence of a warrant or probable cause. See, e.g., Wilson v. Morgan, 477 F.3d 326, 337-39 (6th Cir. 2007) (finding, in context of claim under 42 U.S.C. \u00a7 1983, that United States v. Colbert, 76 F.3d 773, 776-78 (6th Cir. 1996), justifies protective sweep of home interior where arrest made outside); United States v. Maldonado, 472 F.3d 388, 394-95 (5th Cir. 2006) (upholding protective sweep of house where arrest made in driveway); United States v. Paopao, 469 F.3d 760, 767 (9th Cir. 2006) (permitting protective sweep of apartment based on reasonable belief that at least one robber remained inside though arrest made outside); United States v. Lawlor, 406 F.3d 37, 41 (1st Cir. 2005) (noting that “an arrest that occurs just outside the home can pose an equally serious threat to arresting officer as one that occurs inside the home”); United States v. Cavely, 318 F.3d 987, 995-96 (10th Cir. 2003) (stating that, “[d]epending on the circumstances, the exigencies of a situation may make it reasonable for officers to enter a home without a warrant in order to conduct a protective sweep”); United States v. Henry, 48 F.3d 1282, 1284 (D.C. Cir. 1995) (upholding protective sweep inside home where arrest made outside); United States v. Oguns, 921 F.2d 442, 446-47 (2d Cir. 1990) (allowing protective sweep of apartment where officers could have reasonably believed that people inside heard them arresting defendant outside); United States v. Delgado, 903 F.2d 1495, 1502 (11th Cir. 1990) (upholding protective sweep inside warehouse where reasonable belief existed as to danger to agents outside).\n<\/p><\/blockquote>\n

Defendant was arrested on an arrest warrant and handcuffed outside his house. Officers asked him where his gun was, and he said he didn\u2019t want anybody going in the house. They said they just wanted the gun, and they could go in and get it and there would be no search of the house. The defendant then consented to the search and it was found voluntary because the conversation was short and polite and the search was limited. United States v. Burke, 2009 U.S. Dist. LEXIS 110221 (E.D. N.Y. October 16, 2009).*<\/p>\n

Defendant did not object to a consent search that escalated to removing seats and carpeting, and failure to object is a factor in consent [I don\u2019t buy this anymore]. Once it was apparent to the officers that there was a hidden compartment, there was probable cause and it was not unreasonable for officers to break open the vehicle. United States v. Bugarin, 2009 U.S. Dist. LEXIS 109058 (D. Kan. November 23, 2009).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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