{"id":5572,"date":"2011-05-21T10:55:29","date_gmt":"2011-05-21T10:55:29","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-05-21T10:55:29","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5572","title":{"rendered":"E.D.Tenn.: Protective sweep of house proper here even though defendant arrested outside"},"content":{"rendered":"

A protective sweep<\/a> of a house where the defendant was arrested outside is not categorically prohibited in the Sixth Circuit, and it was proper here. United States v. Landolt, 2011 U.S. Dist. LEXIS 52983 (E.D. Tenn. May 17, 2011), R&R 2011 U.S. Dist. LEXIS 52871 (E.D. Tenn. March 15, 2011).* From the R&R:<\/p>\n

Further, the Sixth Circuit has not limited protective sweeps to arrest situations only. In United States v. Taylor<\/a>, 248 F.3d 506, 513-14 (6th Cir. 2001), the Sixth Circuit permitted a cursory search of the premises for people who threatened officers\u2019 safety while the officers waited for a search warrant to be obtained. No arrest had been made at the time the protective sweep was conducted. However, the Taylor Court noted \u201cthe officers had acted properly to secure the premises and wait for a search warrant before conducting a search of Taylor\u2019s apartment.\u201d Id. at 514. Officers cannot create situations in which they may be placed in harm\u2019s way in order to justify a protective sweep unless they have a valid reason to do so. United States v. Campbell<\/a>, 261 F.3d 628, 633 (2001) (\u201cIt is well established that police officers are not free to create exigent circumstances to justify their warrantless searches.\u201d) (citing United States v. Morgan<\/a>, 743 F.2d 1158, 1163 (6th Cir.1984)). Thus, the undersigned turns first to the question of whether Johnson had a constitutional basis to detain defendant at the time the protective sweep was conducted.<\/p>\n

. . . <\/p>\n

In the instant case, we are concerned with the second type of protective search. The agents had a reasonable basis to believe that firearms were in the house, and they knew that someone else was in the house because they saw a woman run into the house after she saw them outside the house. While the officers were relatively far away from the house, about 40 to 50 yards, a firearm can be discharged accurately from that distance. I conclude the agents had a reasonable basis to believe the house harbored an individual posing a danger to the agents on the scene. Accordingly, I will recommend defendant\u2019s motion to suppress evidence discovered at his residence on August 21, 2009 be DENIED<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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