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Protective Sweeps (podcast transcript)

Miller: Hey we’re back. This is Tim and Jenna. We’re talking about exceptions to the probable cause and the warrant requirement of the 4th Amendment. Jenna, what’s the next exception you’d like to talk about?

Solari: Tim, I think we ought to talk about protective sweeps. Protective sweeps are made when agents or officers execute a search warrant or an arrest warrant inside a residence. Now generally agents are looking for people inside the residence who might interfere with the execution of that warrant. Agents with a search warrant can usually sweep everywhere on the premises where a person might hide because a search warrant most likely allows them to look in all of those places anyway. Arrest warrants are a little trickier though. Remember when executing an arrest warrant in a house, officers are looking for a person, not evidence of a crime. So, once they enter the house, officers of course can look any place they can reasonably expect to find the target of their arrest warrant.

Miller: Sounds to me like a protective sweep before executing a search warrant is pretty broad.

Solari: Right, because you’re sweeping the whole area you intend to search.

Miller: And it also sounds like a protective sweep for an arrest warrant is narrow.

Solari: That’s generally true. The agents are sweeping the area for people who might interfere with the arrest. Now once the officers find and arrest the target of the warrant and of course they can look wherever they might expect to find that person; but once they find the target of the warrant, there are two different kinds of protective sweeps that might be available to them. The first, we’ll call it an automatic protective sweep. An automatic sweep doesn’t require any level of suspicion at all. Once the officers have found that person to be arrested, they can automatically sweep people-size places, immediately adjacent to that place of arrest.

Miller: Now, you when you say immediately adjacent to the place of arrest, what do you mean?

Solari: Well for instance if a suspect is arrested in a bedroom, then the agents may sweep the adjacent or nearby bathroom or closets in that bedroom. Of course that’s to ensure the safety of the officers while they’re conducting the arrest. Now, like I said they can search those immediately adjacent areas right where the arrest occurred, but to search any further than that immediate area, like other rooms or different floors of the house, the officers have to articulate a reasonable suspicion that there are other people inside the residence who might interfere with the arrest, or otherwise pose some kind of threat to the officers. So let’s call those sweeps beyond the immediate area adjacent to arrest, let’s call those extended protective sweeps.

Miller: These extended protective sweeps - they sound to me a lot like a Terry Frisk.

Solari: They are actually. Protective sweeps are like Terry Frisks. They are limited searches and based on reasonable suspicion; but, instead of looking for weapons, as agents are in a Terry Frisk, the agents are looking for people – people who might interfere with them during the execution of their warrant.

Miller: Can you give me some guidance when executing these extended protective sweeps?

Solari: Sure. Now again protective sweeps before executing a search warrant typically don’t pose any problem, agents can sweep the whole area they intend to search because that search warrant already gives them permission to be there and look in all of those areas; but, agents do need to be more careful when executing an arrest warrant since they need to meet some specific requirements to go further than that area immediately adjacent to the place of arrest.

Miller: Can you tell me how an agent can convince a judge that an extended protective sweep is legitimate?

Solari: Okay, sure. There are three requirements to conduct an extended protective sweep. The first one is the officer has to have reasonable suspicion that the area to be swept harbors an individual posing a danger. Now some facts that can support that suspicion might be the nervousness of the arrestee. The furtive actions of somebody else they find inside of the house - like a person looking repeatedly towards the back of the house as if there’s someone or something back there. Maybe extra cars in the driveway that don’t belong to the person who’s being arrested in the house. Extra place settings at the table. Voices heard from another part of the house. Maybe a TV or a radio on in the back of the house. Flushing toilets. Sounds of other people moving or walking around. Maybe the suspect who’s just been arrested is known by law enforcement to always be in the company of certain criminal companions. So you’d expect to find those people in the house.

Miller: And what’s the second requirement?

Solari: Well, second the officers can only look in areas where persons can be located. So people-sized places would include a closet, but definitely not a medicine cabinet.

Miller: And the third?

Solari: Third, the protective sweep can’t last any longer than necessary to dispel the danger. The officers have to move with a sense of purpose through the areas that they’re sweeping; and, once they’re finished looking for people, and people-size places then their ability to conduct that limited search is over.

Miller: Now previously you told me that if agents come upon evidence of a crime during a Terry Stop and Frisk the evidence is admissible. Do you remember that?

Solari: Sure.

Miller: What about a protective sweep?

Solari: Same rule applies. The evidence is admissible if it’s in plain view. Again, we’re going to cover the plain view doctrine in more detail a little bit later, but if the agent opens a closet door immediately adjacent to that place of arrest and doesn’t find a person there, but instead finds a bag of green leafy substance that he suspects to be marijuana well than that evidence is in plain view. However, a protective sweep doesn’t authorize, like I said, access to a medicine cabinet for instance, because you wouldn’t expect to find a person in there so anything found in a place that small would be suppressed unless the officer had some other legal authority to get in there to open that up.

Miller: Got one more question for ya.

Solari: Alright.

Miller: Can officers every conduct a protect sweep inside a residence when they arrest the suspect immediately outside the home?

Solari: Yes, in some cases. Officers have to articulate that reasonable suspicion that there’s someone inside the house who will interfere with that arrest or possibly harm the officers. So for instance, they may see a curtain moving or something in through one of the windows. Now one court’s actually pointed out that a bullet fired at an arresting officer standing outside of a window is just as deadly as one that’s projected from a room to another. So for that reason, the officers can conduct a sweep to find persons they believe are inside. The officer is still limited to people-size places and they can only last as long as necessary to dispel that danger.

Miller: Okay, thanks. Let’s take a break now and when we come back we’ll talk a little bit about search incident to arrest.

Solari: Alright, thanks.