S.D.Ind.: Court allows full protective sweep of house on serving arrest and search warrant for the person in own house

The police here had a search warrant for defendant’s person, not his house, so they waited for him to get inside his house to execute it [how convenient for a protective sweep of the house]. They also knew of comings and goings from the house. The court refused to suppress the protective sweep of the whole house on his arrest. The SWAT team came for the search warrant of the person because of the house and fear defendant was armed. United States v. Schmitt, 2013 U.S. Dist. LEXIS 29463 (S.D. Ind. March 5, 2013):

Schmitt nevertheless contends that EPD’s surveillance assured them that only Schmitt and Wyatt were in the home; thus, a protective search was unnecessary once these individuals were located because the search warrant had been completed. First, testimony did not establish the timing of when Schmitt and Wyatt were apprehended relative to when Officer Pierce entered the basement. But even assuming Schmitt and Wyatt were in custody prior to Officer Pierce entering the basement, it was still uncertain at that point whether additional individuals were in the Residence. Indeed, multiple visitors entered the house in the short period of surveillance, and it is possible other individuals were in the home prior to EPD’s surveillance. As Officer Pierce testified, he only knew a white male had gone to the ground after the flashbang, but he neither knew that man was Schmitt nor understood him to be surrendering. Even more, the possibility of a dangerous assault weapon in the home escalates the importance of determining whether anyone else is present. Accordingly, EPD’s surveillance did not prevent them from assuming additional individuals may be present in the home.

Similarly, Schmitt’s “had their man” theory fails. Even though the SWAT team did locate Schmitt upon entering the home, they were not obligated to immediately withdraw from the home. “[O]fficers [have] the right to ensure their safety and the safety of everyone else in that area not only during the arrest itself but also during the remainder of the time that they were legally on the premises and its environs.” Burrows, 48 F.3d at 1017; see also Buie, 494 U.S. at 334 (stating “the arresting officers are permitted … to take reasonable steps to ensure their safety after, and while making, the arrest”) (emphasis added). This is because an “unknown assailant who attacks officers departing from an arrestee’s home poses an equivalent, if not greater, risk to the safety of officers and others as does the assailant who attacks the officers upon entry.” Burrows, 48 F.3d at 1017, n. 9; see also United States v. Robinson, 775 F. Supp. 231, 234-35 (N.D. Ill. 1991) (“Law enforcement officers, however, are not required when making an arrest inside a building to surreptitiously back out of that building, guns drawn and pointed in all directions”). Accordingly, EPD was justified in conducting a protective sweep even if Schmitt had already been placed in custody.

The court also allowed a protective sweep of the basement although the door was locked from the outside, thus, nobody there could pose a threat:

This argument is unconvincing for several reasons. First, the presence of a locked door does not enter the matrix when determining the constitutionality of a protective sweep. The officer’s safety is the focal point of that analysis, not the condition of the door. See Burrows, 48 F.3d at 1017 (finding protective sweep permissible where officers were required to “force four locked doors” because the search was done to ensure the officer’s safety and took no more than five minutes to complete). Indeed, there are many ways an individual behind a locked door could harm officers on the scene, including kicking down the door or firing a weapon through the closed door, which is even more at issue here with the possibility of an assault weapon on the premises. In fact, officers may face greater danger from behind locked doors than unlocked doors, so this fact alone does not change the analysis.

Also, even if officers could have simply remained at the basement door to prevent an individual from exiting, that does not alter the legality of the search. As the Seventh Circuit noted, “[w]here … police have good grounds to believe that potentially dangerous individuals could be in the basement, a protective sweep into that area is reasonable regardless of whether there might be a ‘less intrusive investigatory technique’ for securing that area.” U.S. v. Tapia, 610 F.3d 505, 511 (7th Cir. 2010) (citation omitted). As a result, the hook and eye latch on the basement door has no bearing on the constitutionality of the protective sweep.