{"id":1352,"date":"2007-10-27T15:54:28","date_gmt":"2007-09-14T08:05:46","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-09-14T08:05:46","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1352","title":{"rendered":"Protective sweep does not require “articulable facts” other than character of the event"},"content":{"rendered":"

Massachusetts holds that the character of the person pursued and event are controlling for a protective sweep and not whether there are “articulable facts” supporting it. The violent fugitive apprehension team of the State Police entered on an arrest warrant and also looked in the basement for others, finding a dismantled gun. The sweep was proper. Commonwealth v. Dejesus<\/a>, 70 Mass. App. Ct. 114, 872 N.E.2d 1178 (2007):<\/p>\n

It is clear in this case from the judge’s findings that the violent fugitive apprehension section of the State police employed the protective sweep protocol based on the character of the fugitive they were called on to apprehend. Trooper Sullivan, an officer of twenty-three years with the State police department, in recent years had the apprehension of violent fugitives as his sole activity within the department. Asked to explain why the section used protective sweeps, he testified: <\/p>\n

“A. Well, officers’ safety is our number one issue. Everyone is going to come to work and everyone is going to go home. When we go into an apartment, we have to clear the apartment for people, for everyone’s safety. Someone could sneak up from behind us with a gun. They could jump on top of us. People are hiding all the time in closets, underneath beds, in between bed frames and mattresses, just for everyone’s safety, the entire apartment is going to be clear. . . .<\/p>\n

“Q. And in your five years on this fugitive [apprehension unit], how many times have you had occasion or individuals at — hidden or come out from places when you were doing the sweep?<\/p>\n

“A. Numerous times, well over hundreds.” <\/p><\/blockquote>\n

We do not read Maryland v. Buie<\/em><\/a> to require necessarily that the findings of “articulable facts” justifying a protective sweep be separate from the violence implicit in the crime for which the defendant is sought and the violence implicit in his criminal history. A violent criminal record can, in our view, constitute the separate basis called for by Maryland v. Buie<\/em> and result in a commonsense application of the overarching constitutional principle of reasonableness. In the Supreme Court’s decision Justice White, speaking for the majority, stated: <\/p>\n

“The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry<\/em> [Terry v. Ohio<\/em>, <\/a>392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] or Long [Michigan v. Long<\/em><\/a>, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983)] frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” <\/p><\/blockquote>\n

Maryland v. Buie,<\/em> 494 U.S. at 333.<\/p>\n

The “articulable facts” that justified the sweep are, in our view, found in the violent crime (armed carjacking) for which the defendant’s arrest warrant was issued and in his record of violent felonies and firearm possession charges. There is nothing at variance with this conclusion in the Dubois<\/em> case, that involved no suggestion of criminal violence, or in the Nova<\/em> case, where the arrest had been completed and the defendant removed from the scene before the police returned to the apartment and executed a protective sweep. Here the police had an objective concern for their safety — a concern rooted in the articulable facts of the defendant’s criminal history. The defendant’s motion to suppress the evidence of the handgun found in plain view in the basement should have been denied.<\/p>\n

Order allowing motion to suppress reversed.<\/em> <\/p><\/blockquote>\n

IRS subpoena issued under 26 U.S.C. \u00a7 7602<\/a> was not an invasion of plaintiff’s privacy because it was not overbroad and was within the IRS’s jurisdiction. Evangelist v. IRS, 2007 U.S. Dist. LEXIS 66946 (D. Md. August 20, 2007):<\/p>\n

This Circuit has noted that a subpoena duces tecum can exceed the confines of the Fourth Amendment, but only when it is not sufficiently tailored to the investigation. In re Subpoena Duces Tecum<\/em>, 228 F.3d 341, 347 (4th Cir. 2000). However, “there is no unreasonable search and seizure, when a subpoena, suitably specific and properly limited in its scope, calls for the production of documents which, as against their lawful owner to whom the writ is directed, the party procuring its issuance is entitled to have produced.” Id<\/em>. In this case, the IRS sought financial records to assist in its calculation of Evangelist’s tax deficiency. The Court concludes that plaintiff’s financial records were relevant to this analysis. Without additional facts or allegations concerning the Government’s actions, the Court concludes that the IRS did not infringe on plaintiff’s right to privacy. Thus, Evangelist’s claim for invasion of privacy must fail under Rule 12(b)(6) of the Federal Rules of Civil Procedure.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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