{"id":5569,"date":"2011-07-10T08:48:20","date_gmt":"2011-05-20T18:05:10","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-05-20T18:05:10","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5569","title":{"rendered":"AZ: A protective sweep on conjecture there was a gun inside when the defendant was arrested outside was invalid"},"content":{"rendered":"

A protective sweep on conjecture there was a gun inside when the defendant was arrested outside was invalid under Buie<\/a>. State v. Fisher<\/a>, 250 P.3d 1192 (Ariz. 2011):<\/p>\n

\u00b615 Similarly, the officers in this case could not articulate specific facts indicating that another person was inside Fisher\u2019s apartment. The record does not reflect any attempt by the officers to find out how many people lived with Taz. Three people, including Fisher, exited the apartment. Fisher identified himself and matched the victim\u2019s detailed description of the assailant. Although there was still an unaccounted-for weapon, as in Gandia [United States v. Gandia<\/a>, 424 F.3d 255, 264 (2d Cir. 2005)], nothing indicated that anyone else was inside the apartment. Officers cannot conduct protective sweeps based on mere speculation or the general risk inherent in all police work. Because the officers here did not articulate specific facts to establish a reasonable belief that someone might be in the apartment, the protective sweep was invalid.<\/p>\n

\u00b616 We are mindful that:<\/p>\n

[P]olice officers have an incredibly difficult and dangerous task and are placed in life threatening situations on a regular basis. It would perhaps reduce the danger inherent in the job if we allowed the police to do whatever they felt necessary, whenever they needed to do it, in whatever manner required, in every situation in which they must act. However, there is a Fourth Amendment to the Constitution which necessarily forecloses this possibility. <\/p><\/blockquote>\n

United States v. Colbert<\/a>, 76 F.3d 773, 778 (6th Cir. 1996). We likewise are aware of the high price of suppressing evidence. See State v. Bolt<\/a>, 142 Ariz. 260, 266-67, 689 P.2d 519, 525-26 (1984); cf. Herring v. United States<\/a>, 555 U.S. 135, 129 S. Ct. 695, 700-01 (2009) (\u201cThe principal cost of applying the [exclusionary] rule is, of course, letting guilty and possibly dangerous defendants go free \u2013 something that \u2018offends basic concepts of the criminal justice system.\u2019\u201d (quoting United States v. Leon, 468 U.S. 897, 908 (1984))). But the right to privacy in one\u2019s home is \u201c\u2018basic to a free society.\u2019\u201d Mapp v. Ohio, 367 U.S. 643, 656 (1961) (quoting Wolf v. Colorado, 338 U.S. 25, 27 (1949)). Thus, specific facts, and not mere conjecture, are required to justify a protective sweep of a residence based on concerns for officer safety.<\/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-5569","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/5569","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=5569"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/5569\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=5569"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=5569"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=5569"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}