E.D.Ky.: Protective sweep of room defendant was stopped 20-75′ away from was still valid on these facts

A protective sweep of defendant’s motel room was valid even though he was stopped 20-75′ away from the room. They had reasonable suspicion that others could have been in the room where the door to the room was left ajar. Also, defendant’s citing the state constitution in his federal motion to suppress is pointless. United States v. Loman, 2011 U.S. Dist. LEXIS 120398 (E.D. Ky. August 16, 2011):

The Court draws guidance from United States v. Biggs, 70 F.3d 913 (6th Cir. 1995). The defendant in Biggs was arrested 20-75 feet outside his motel room when he came out into the parking lot, leaving the door ajar. Id. at 915-16. Officers then entered the room to perform a protective sweep, at which time they discovered a gun in plain view. Id. at 915. Although police did not see anyone else enter the room during the two-hour surveillance period that preceded the arrest, the officers had previously received information that someone was going to meet the defendant there, and on two prior arrests, the defendant had been accompanied by someone with a firearm. Id. at 915-916. Those facts were held sufficient to warrant a Buie sweep. Id. at 916; see also United States v. Stover, 474 F.3d 904, 911-12 (6th Cir. 2007) (protective sweep justified where police identified car at residence registered to local criminal); Perkins v. United States, 127 F. App’x 830, 835 (6th Cir. 2005) (protective sweep justified where, although two men who officers had observed enter a residence had been arrested, a woman who had answered a phone call had not yet been located); United States v. Taylor, 248 F.3d 506, 512-14 (6th Cir. 2001) (considering apartment occupant’s “overtly nervous behavior” in approving protective sweep).

The “articulable facts” on which the United States bases its initial search of Loman’s bedroom are that (1) Defendant initially refused to show his hands and step out of the bedroom, Tr. at 11, and he repeatedly looked back into the room; (2) the officers who conducted the sweep of the bedroom had not yet found two of the three men Mrs. Loman said were inside the house; and (3) the Deputy Marshals were aware of Defendant’s criminal history — including convictions, charges, and suspicions. The Court finds that these facts and the rational inferences that arise from them would warrant a reasonably prudent officer in believing the bedroom may harbor an individual posing a danger. Under these circumstances, like in Biggs, the fact that Basic had already been arrested and removed from the home by the time the protective sweep occurred did not eliminate the safety considerations justifying the search.