{"id":7462,"date":"2012-09-17T06:29:24","date_gmt":"2012-07-21T08:42:54","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-07-21T08:42:54","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=7462","title":{"rendered":"Cal.6: Sweep of house was factually unjustified and suppressed"},"content":{"rendered":"

The state opposed the \u201csweep\u201d of defendant\u2019s house without citing Buie or any justification other than officer safety, but the officers could not articulate a factual basis for the need for a sweep. The entry into his house was unjustified. People v. Werner<\/a>, 207 Cal. App. 4th 1195, 144 Cal. Rptr. 3d 266 (6th Dist. 2012):<\/p>\n

… The test under Buie therefore requires a reasonable suspicion both that another person is in the premises and that that person is dangerous. (3 LaFave, Search and Seizure (4th ed. 2004) \u00a7 6.4(c), p. 377.) The existence of such a reasonable suspicion is evaluated on a case-by-case basis by looking at the \u201ctotality of the circumstances\u201d to ascertain whether the police had or whether the officer has \u201ca particularized and objective basis\u201d for his or her suspicion. (United States v. Arvizu (2002) 534 U.S. 266, 273.)<\/p>\n

A protective sweep is not limited to situations immediately following an arrest; it may occur in conjunction with a suspect\u2019s detention (Celis, supra, 33 Cal.4th at p. 679), or a valid probation search (People v. Ledesma (2003) 106 Cal.App.4th 857, 864 (Ledesma)). And in some instances, an entry of a residence solely to conduct a protective sweep may be justified to ensure the safety of officers effectuating arrests just outside. (People v. Maier (1991) 226 Cal.App.3d 1670, 1675; see also Ledesma, at p. 864, fn.3.) \u201c[I]n some circumstances, an arrest taking place just outside a home may pose an equally serious threat to the arresting officers as one conducted inside the house. [Citation.]\u201d (Celis, supra, 33 Cal.4th at p. 679, italics omitted.) The facts known to the officers before they perform such a protective sweep must still satisfy Buie; there must be \u201carticulable facts\u201d considered together with the rational inferences drawn from those facts, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to be swept harbors a person posing a danger to officer safety. [Citation.]\u201d (Celis, at pp. 679-680, citing Buie, supra, 494 U.S. at pp. 327, 334.)<\/p>\n

…<\/p>\n

Here, there are even fewer facts than in Celis that justifed a protective sweep. Unlike in Celis, the deputies in this case had no information whatsoever that anyone lived in the home besides defendant and Ingram; in fact, they had been told by Ingram that no one was inside. Further, the deputies had no evidence that Ingram was dangerous or had any criminal history. …<\/p><\/blockquote>\n

h\/t to a reader<\/p>\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-7462","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/7462","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=7462"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/7462\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=7462"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=7462"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=7462"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}