{"id":7810,"date":"2012-11-22T11:50:11","date_gmt":"2012-10-08T00:13:21","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-10-07T11:14:15","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=7810","title":{"rendered":"FL5: Protective sweep of locked bedroom after consent entry was invalid"},"content":{"rendered":"

Protective sweep of locked bedroom after consent entry was invalid. Hernandez v. State<\/a>, 98 So. 3d 702 (Fla. 5th DCA 2012):<\/p>\n

Courts that have recognized the validity of protective sweeps not incident to an arrest have generally required the State, at a minimum, to prove the following elements:<\/p>\n

1. The police must not have entered (or remained in) the home illegally and their presence within it must have been for a legitimate law enforcement purpose;<\/p>\n

2. The protective sweep must have been supported by a reasonable, articulable suspicion that the area to be swept harbored an individual posing a danger to those on the scene;<\/p>\n

3. The protective sweep must not have been “a full search” but rather a cursory inspection of those spaces where a person may be found;<\/p>\n

4. The protective sweep must have lasted no longer than was necessary to dispel the reasonable suspicion of danger and no longer than the police were justified in remaining on the premises.<\/p><\/blockquote>\n

Gould, 364 F.3d at 587-88, see also Miller, 430 F.3d at 98-100; State v. Davila, 999 A.2d 1116, 1118-19 (N.J. 2010).<\/p>\n

In the instant case, the aforementioned elements were met. However, when the police entry into a house is based on consent, and the consent is limited in scope, additional Fourth Amendment concerns arise that are not present in cases where the initial entry is pursuant to a warrant.<\/p>\n

For example, concerns might arise respecting a consent to entry requested for a stated common purpose but actually intended not for that purpose but rather for the purpose of gaining access in order to then make a protective sweep of the entire home for unrelated reasons and thus circumvent the warrant requirement. Concerns of a similar character might also arguably arise where the consent to entry is given expressly or implicitly only as to a limited area but the protective sweep extends clearly beyond that area without anything having developed since entry suggestive of greater or more imminent danger than that initially apparent just prior to entry.<\/p><\/blockquote>\n

Gould, 364 F.3d at 589.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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