S.D.Ind.: Protective sweep after arrest was proper because of the sound of movement inside

Protective sweep of defendant’s house was proper after his arrest when he took a few minutes to get to the door and officers could hear movement inside. The fact he was handcuffed and under arrest and could be removed was not determinative. United States v. Moore, 2009 U.S. Dist. LEXIS 68452 (N.D. Ind. August 4, 2009):

The officers in this case arrived at Moore’s residence to serve an arrest warrant on a misdemeanor. Both officers testified that while it took Moore several minutes to respond to the knock on the door, he eventually answered the door and was placed under arrest without incident. However, the officers further testified that they heard “movement” coming from the back of the house prior to Moore opening the door and that Moore had approached the door from the back of the house, returned there and then came back and answered the door.

Given the above facts, there is little question (and the Defendant concedes the point) that the officers had justification to conduct a “cursory inspection” of the areas immediately adjoining the point of arrest. The officers testified credibly that they heard footsteps and other shuffling about in the back bedroom area prior to the defendant answering their door knock. Further, the officers, through the broken peep hole in the door, observed the defendant coming towards the door from the back bedroom area. Nevertheless, the Defendant asserts that the scope of the search, mainly the secondary search of the closet by Officer Borton, falls outside the protective sweep doctrine.

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As tempting as it is to isolate the conduct of the officers, it is clear from the evidence in the record that they were acting together to conduct the protective sweep and ensure officer safety. Officer Borton testified credibly that he looked into the recesses of the closet because he believed someone could have been secreted there and Officer Reed had only quickly shined his flashlight there. And, the fact remains that all the seized evidence was found in a place where persons could have been hiding. Officer Borton located these items without moving any items or rearranging anything. Rather, he looked into the recesses of the closet to determine whether an individual was hiding there and, while doing so saw the items in plain view. Because he was completing the cursory inspection in search of individuals who may have been hiding in the closet and posing an immediate danger to his safety and the safety of the other officers, the court is hard-pressed to characterize the search as overly intrusive especially in light of the policy interest of ensuring officer safety set forth in Buie. 3 Accordingly, the Defendant’s Motion to Suppress is DENIED.

The smell of marijuana was sufficient to create more than reasonable suspicion for a dog sniff, which, remarkably, the parties refer to as an “air scan.” n.1 “An ‘air scan,’ as the parties use the phrase, appears to be nothing more than directing a drug dog to determine whether the scent of narcotics is present in a particular area.” United States v. Salley, 341 Fed. Appx. 498 (11th Cir. 2009) (unpublished)* (if it’s a dog sniff, call it that, not an air scan; mechanical sniffers are not that far away).

Government did not have to prove actual authority to consent because apparent authority is enough. United States v. Penney, 576 F.3d 297, 2009 FED App. 0276P (6th Cir. 2009).*