TX14: Arrest outside a house can justify a protective sweep inside

An arrest outside a house, depending on the circumstances, can justify a protective sweep as much as an arrest inside. Defendant also claimed that a secondary protective sweep was unreasonably intense. Even if it was, it doesn’t affect the search warrant later issued on observations from the first protective sweep. Rios v. State, 2020 Tex. App. LEXIS 6896 (Tex. App. — Houston (14th Dist.) Aug. 27, 2020):

We think that an arrest that occurs just outside the home can pose an equally serious threat to arresting officers as one that occurs in the home. See Lawlor, 406 F.3d at 41. We accept the position that a protective sweep may be conducted following an arrest that takes place just outside the home, if sufficient facts exist that would warrant an officer to reasonably believe that an individual in the area in question posed a threat to those at the scene. See Lawlor, 406 F.3d at 41-42; Colbert, 76 F.3d at 776-77; Henry, 48 F.3d at 1284. Therefore, the arrest of appellant on the front porch of the house does not preclude application of the protective-sweep doctrine. See …

Other Specific Articulable Facts Warranting the Sweep

Appellant claims law enforcement officers did not have specific articulable facts that would warrant a reasonable belief that the area swept harbored an individual posing a danger to those on the arrest scene. Viewing the evidence in the light most favorable to the trial court’s ruling, the record shows the following:

• Intelligence from law-enforcement entities showed narcotics traffic at the house.

• The arrest warrants executed related to charges for a violent crime – murder.

• Informants had reported guns were on the premises.

• Alexander testified that he saw a rifle in the residence upon the initial entry into the house.

• Witnesses gave conflicting accounts about how many children were in the car that left the home, which suggested that not all of the children left the home and at least one might still be inside the house

• When questioned by law enforcement officers immediately following his arrest, appellant lied about his identity, initially identifying himself as “Elijah Villarreal.”

• Law enforcement officers saw suspected narcotics activity at the house. Alexander testified to the heightened level of risk associated with apprehending suspects in narcotics-trafficking scenarios.

• Appellant reported dogs on the premises and in the house.

• Alexander testified he was concerned about the safety of the law enforcement officers.

• Photographs in the record show that parts of the residence were highly cluttered, obscuring lines of sight into places individuals could be hiding or lying in wait.

• According to Alexander, the ongoing surveillance did not provide adequate information for the purposes of executing the warrants. The surveillance on the home was not continuous and, as a result, yielded inconsistent information. Nothing in the record shows the presence of physical surveillance or attention to the video surveillance in the days leading up to the arrest other than the night before the arrest.

• The surveillance confirmed that appellant was at the residence the night before the arrest. But, Alexander testified that law enforcement officers could not be certain that there were no other people in the residence and that the sweep was conducted to ensure the safety of others standing around the residence.

Viewing the evidence in the light most favorable to the trial court’s ruling, the record evidence supports an implied finding by the trial court that Alexander held an objectively reasonable belief, based on specific and articulable facts, that guns remained in the house and that a person in that area posed a danger to Alexander and to other people in the area. See Jackson, 700 F.2d at 190 (“The agents at the motel had observed the suspects leaving the room in which the agents later discovered the evidence. They had no way of knowing that the two suspects were the only remaining people involved in the exchange. Although Hicks had said that the suspects were armed, a pat-down search following the arrest did not reveal a weapon. Thus, the agents had reason to believe that a gun was somewhere in the motel. It is clear to us that the cursory search of the motel rooms resulted from the agent’s reasonable belief that an immediate security sweep of the premises was required for their own safety and the safety of others at the motel”); Lerma, 543 S.W.3d at 190; see also Lipscomb, 526 S.W.3d at 656 (concluding protective sweep was lawful where officers had received conflicting information from dispatch operator making them unsure about whether anyone was still inside the apartment). …