Chapter 26: Protective Sweeps

[1] USSC: Maryland v.
Buie (1990) 494 US 325, 327 [“A ‘protective sweep’ is a
quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others. It
is narrowly confined to a cursory visual inspection of those
places in which a person might be hiding.”]. OTHER:
US v. Gandia (2C 2005) 424 F3 255, 262 [“a
protective sweep seems clearly to refer to a search that focuses
not on the threat posed by the arrestee, but the safety threat
posed by the house, or more properly by unseen third parties in
the house”].

[2] USSC: Maryland v. Buie (1990)
494 US 325, 330 [“until the point of Buie’s arrest the police had
the right, based on the authority of the arrest warrant, to search
anywhere in the house that Buie might have been found”].
9th CIR: US v. Harper (9C 1991) 928 F2 894, 897
[“Once the police possessed an arrest warrant and probable cause
to believe David was in his home, the officers were entitled to
search anywhere in the house in which he might be found.”
Overruled on other grounds in US v. King (9C 2012) 687 F3
1189]. OTHER: US v. Nascimento (1C
2007) 491 F3 25, 49 [“[Protective sweeps] are not justified by the
potential threat posed by the arrestee but, rather, by the
potential threat posed by unseen third parties who may be lurking
on the premises.”]; US v. Green (8C 2021) 9 F4 682, 692
[officers may not conduct a sweep “for weapons or contraband”];
US v. Gandia (2C 2005) 424 F3 255, 261 [“a
protective sweep allows officers to stop a potential ambush by
searching for unseen third parties”]; State v.
Murdock (Wis. 1990) 455 NW2 618, 624 [“Indeed, the danger
to police may be heightened when the arrest is made in the
arrestee’s home because the police officer will rarely be familiar
with the home he or she is entering. The arrestee, however, knows
where items such as weapons and evidence are secreted.”].

[3] USSC: Maryland v.
Buie (1990) 494 US 325, 334 [“an incident to the arrest the
officers could, as a precautionary matter and without probable
cause or reasonable suspicion [conduct a vicinity sweep]”].
OTHER: US v. Ford (DCC 1995) 56 F3
265, 269 [“[The vicinity sweep] requires no probable cause or
reasonable suspicion”]; US v. Archibald (6C
2009) 589 F3 289 [sweep inside residence not permitted when arrest
occurred at the threshold].

[4] USSC: Maryland v.
Buie (1990) 494 US 325, 333 [officers may look in “spaces
immediately adjoining the place of arrest from which an attack
could be immediately launched”]. 9th CIR: US
v. Lemus (9C 2009) 582 F3 958, 963 [search of living
room was lawful because the suspect “was only partially outside
the living room when he was arrested”]. OTHER: US
v. Ford (DCC 1995) 56 F3 265 [under a mattress and
behind a window shade were not places in which a person might be
hiding]; In re Sealed Case (DDC 1998) 153 F3 759, 767 [“The
defendant was arrested while standing next to a chair in the
bedroom. The drugs were found on that chair, and the gun was found
beside it.”].

[5] CAL: P v.
Ledesma (2003) 106 CA4 857, 864 [probation search].
OTHER: US v. Contreras (7C 2016) 820 F3 255, 262
[destruction of evidence]; US v. Gandia (2C
2005) 424 F3 255, 262 [sweeps not restricted to entries to
arrest]; US v. Gould (5C en banc, 2004) 364
F3 578, 584 [“arrest is not always, or per se, an
indispensable element of an in-home protective sweep, and that
although arrest may be highly relevant, particularly as tending to
show the requisite potential danger to the officers, that danger
may also be established by other circumstances”]; US
v. Jimenez (1C 2005)419 F3 34, 41 [“Although
Buie concerns protective sweeps incident to arrest, this
court has extended this doctrine to include protective sweeps in
conjunction with the execution of search warrants, and recently to
include protective sweeps where the existence of exigent
circumstances prompts the entry of police.” Citations omitted];
US v. Arch (7C 1993) 7 F3 1300, 1303-4
[exigent circumstances entry]; US v.
Miller (2C 2005) 430 F3 93, 100 [arrest “is not a necessary
precondition to a lawful protective sweep”]. COMPARE:
US v. Hassock (2C 2011) 631 F3 79, 88 [sweep
unlawful because officers had no legal right to enter].

[6] CAL: P v. Maier (1991) 226
CA3 1670, 1675 [“The basic question is whether the limited
inspection of the premises was reasonable in each case…
This, rather than on which side of a door an arrest is effected,
is the issue in these limited-inspection cases.”]. 9th CIR:
US v. Paopao (9C 2006) 469 F3 760, 766 [“an individual
within a house can still pose a threat to arresting officers
outside it”]; US v. Hoyos (9C 1989) 892 F2 1387, 1397 [“If
the exigencies to support a protective sweep exist, whether the
arrest occurred inside or outside the residence does not affect
the reasonableness of the officer’s conduct. A bullet fired at an
arresting officer standing outside a window is as deadly as one
that is projected from one room to another.”]. OTHER:
US v. Banks (10C 2018) 884 F3 998, 1014 [court rejects
argument “that the protective sweep was improper because the
officers arrested him outside of the Spencer house”];
US v. Alatorre (8C 2017) 863 F3 810, 814-15 [court notes,
among other things, “Alatorre’s girlfriend lingered in the kitchen
out of sight of the officers until she was specifically called to
the door, guns or other dangerous weapons were conceivably
present, [occupants] coming to the door and retreating; quietly
conversing,” edited]; US v. Pile (8C 2016) 820 F.3d 314,
317 [“Lieutenant Potter was reasonable in believing that there was
an individual inside the camper based on Pile’s own words.
Officers could reasonably have perceived the unknown individual as
a potential danger to those on the arrest scene.”];
US v. White (3C 2014) 748 F3 507, 513 [“When an arrest
occurs just outside of the home, the unassailable public policy of
protecting law enforcement officers, as well as victims,
bystanders, and even assailants, is appropriately balanced with
the Fourth Amendment right to be free of unreasonable searches and
seizures by application of Buie’s prong 2.”];
US v. Henry (DCC 1995) 48 F3 1282, 1285 [“[Had the
officers] left the building and made their way to their vehicles,
the officers could have been targets for any armed confederate who
might have remained in the apartment.”]; US v. Oguns (2C 1990) 921
F2 442, 447 [“Had third parties been in the apartment, they would
likely have been able to hear through the open door the agents
arresting Oguns and, with that knowledge, would have posed a
threat to the police outside.”]; US v. Colbert (6C 1996) 76
F3 773, 776-77 [“the fact that the arrest takes place outside
rather than inside the home affects only the inquiry into whether
the officers have a reasonable articulable suspicion that a
protective sweep is necessary by reason of a safety threat”];
US v. Burrows (7C 1995) 48 F3 1011, 1016 [“officers may be
at as much risk while in the area immediately outside the
arrestee’s dwelling as they are within it”]; US v. Lawlor (1C
2005) 406 F3 37] [“an arrest that occurs just outside the home can
pose an equally serious threat to arresting officers as one that
occurs in the home”]. COMPARE: P v. Celis (2004) 33
C4 667, 678 [insufficient grounds for entry].

[7] OTHER: US v.
Gandia (2C 2005) 424 F3 255, 262 [“there is concern that
generously construing Buie will enable and encourage
officers to obtain that consent as a pretext for conducting a
warrantless search of the home”]; US v.
Gould (5C 2004) 364 F3 578, 589; US v.
Scroggins (5C 2010) 599 F3 433, 443 [protective sweep OK
because grounds for search developed upon entry].

[8] USSC: Maryland v. Buie (1990)
494 US 325, 334, fn.1 [the lower standard of reasonable suspicion
applies once the officers were inside]. CAL:
P v. Ormonde (2006) 143 CA4 282, 295 [“the facts known to
the police must rise to a reasonable suspicion that the area to be
swept harbors an individual or individuals posing a danger to
those on the arrest scene”]; P v.
Celis (2004) 33 C4 667, 678 [“A protective sweep can be
justified merely by a reasonable suspicion that the area to
be swept harbors a dangerous person.”]; P v.
Ledesma (2003) 106 CA4 857, 863 [“[Buie] concluded
that the reasonable suspicion standard strikes the proper balance
between officer safety and citizen privacy.”]. 9th CIR:
US v. Paopao (9C 2006) 469 F3 760, 766
[“officers must have had a reasonable suspicion of danger”].
OTHER: US v. Jones (4C 2012) 667 F3 477, 484 [“The
question is whether there was a reasonable basis for the officers
to believe that there could be other individuals in the residence
who might resort to violence when incited by their confederate’s
arrest”]; US v. Hauk (10C 2005) 412 F3 1179,
1186 [“This is essentially the same ‘reasonable suspicion’
standard that justifies [a pat search]”]; US v.
Archibald (6C 2009) 589 F3 289, 299 [“In order to justify
the protective sweep, the government bore the burden of providing
sufficient facts to the district court to support a reasonable
belief that a third party was present in Archibald’s home who
posed a danger to those on the arrest scene.”];
US v. Henry (DCC 1995) 48 F3 1282, 1284 [“It is enough that
they have a reasonable basis for believing that their search will
reduce the danger of harm.”]. COMPARE:
P v. Werner (2012) 207 CA4 1195, 1209 [“Here, there were no
particularized facts supporting a reasonable suspicion that there
was a dangerous person inside defendant’s home.”];
Dillon v. Superior Court (1972) 7 C3 305, 314 [the
“mere possibility without more” that others are in a house is not
enough]; US v. Archibald (6C 2009) 589 F3 289, 299
[“the record contains no evidence, circumstantial or otherwise, of
the presence of a dangerous third party in Archibald’s
residence”]; US v. Gandia (2C 2005) 424 F3 255, 264 [“The
government has pointed to nothing in the record from which a
reasonable police officer could have inferred that there was a
specific danger of unknown third-parties hiding in Gandia’s
apartment.”].

[9] CAL: P v.
Maier (1991) 226 CA3 1670, 1675 [sweep must be based on
“articulable and reasonable facts”]; P v.
Celis (2004) 33 C4 667, 678 [“mere inchoate and
unparticularized suspicion or hunch” is insufficient].
OTHER: US v. Taylor (6C 2012) 666 F3 406, 410
[officers “had seen several people upon entering, and their prior
surveillance and search of [the] home suggested that it had been a
hub for a drug-trafficking organization”];
US v. Thompson (7C 2016) 842 F3 1002 [suspect did not
respond when asked if anyone was in the apartment, suspect
initially lied about living in the apartment, no response when
asked if anyone was inside the apartment];
US v. Henderson (7C 2014) 748 F3 788, 792 [sweep OK after
hostage and her captor exited]; US v. Hollis (11C 2015) 780
F3 1064, 1069 [reasonable to believe that there would be other
people in a drug house “with a “high level of activity”].
COMPARE: US v. Delgado-Perez (1C 2017) 867 F3 244,
253 [“Yet there is no indication in the testimony that the
pre-arrest ‘intel work’ resulted in any evidence that another
person might be present in the home at the time of the arrest, let
alone that another dangerous person would be.”]; US
v. Moran Vargas (2C 2004) 376 F3 112, 116 [“the
government was obligated to establish specific and articulable
facts that warranted the agents’ belief that there was someone
hiding in the bathroom who posed a danger to them”].

[10] CAL: P v.
Ledesma (2003) 106 CA4 857, 863. OTHER:
US v. Thompson (7C 2016) 842 F3 1002 [suspect did not
respond when asked if anyone was in the apartment, suspect
initially lied about living in the apartment, no response when
asked if anyone was inside the apartment];
US v. Henderson (7C 2014) 748 F3 788, 792 [sweep OK after
hostage and her captor exited]; US v. Hollis (11C 2015) 780
F3 1064, 1069 [reasonable to believe that there would be other
people in a drug house “with a “high level of activity”].

[11] 9th CIR: US v.
Castillo (9C 1988) 866 F2 1071, 1079 [“the fourth amendment
was adopted for the very purpose of protecting us from ‘routine’
intrusions by governmental agents into the privacy of our homes.
It is dismaying that any trained police officer in the United
States would believe otherwise”]. OTHER: US
v. Taylor (6C 2012) 666 F3 406, 409 [“The police
cannot justify a sweep simply by citing their standard
procedure.”]; US v. Hauk (10C 2005) 412 F3
1179, 1186 [the Fourth Amendment does not sanction automatic
“automatic protective sweeps”]; US v.
Brown (ED Mich. 1999) 69 FS2 925, 930 [Agent: “As soon as I
execute an arrest warrant, it’s proper procedure you immediately
come in and conduct a security sweep.”]; State v.
Estep (Ind. App. 2001) 753 NE2 22, 28 [officer testified
that “a sweep is departmental policy and that felons ideally run
with other felons.”].

[12] CAL: P v.
Ledesma (2003) 106 CA4 857, 866 [“the mere abstract
theoretical possibility that someone dangerous might be inside a
residence does not constitute articulable facts justifying a
protective sweep”]. OTHER: US v. Serrano-Acevedo (1C
2018) 892 F3 454, 460 [the presence of an additional suspect
inside the house “was based on unfounded speculation, not
articulable facts”]; US v. Anderson (8C 2012) 688 F3 339,
346 [“Something more than a speculative hunch is required for p
olice to conduct a protective sweep.”].

[13] CAL: Dillon v.
Superior Court (1972) 7 C3 305, 314 [while there is always
“the possibility” that someone else is on the premises, a mere
possibility is insufficient]. OTHER:
US v. Bagley (10C 2017) 877 F3 1151, 1155 [protective sweep
cannot be based on the mere possibility that a dangerous person
was on the premises]; US v. Nelson (10C 2017) 868 F3 885,
889 [“there could always be a dangerous person concealed within a
structure. But that in itself cannot justify a protective sweep,
unless such sweeps are simply to be permitted as a matter of
course”]; US v. Archibald (6C 2009) 589 F3
289, 300 [“Clearly, Buie requires more than ignorance or a
constant assumption that more than one person is present in a
residence.”]; US v. Moran Vargas (2C 2004)
376 F3 112, 117 [“lack of information cannot justify a protective
sweep”]; US v. Colbert (6C 1996) 76 F3 773,
778 [“Lack of information cannot provide an articulable basis upon
which to justify a protective sweep.”]; US v.
Ford (DCC 1995) 56 F3 265, 270, fn.7 [insufficient
justification: “I did not know if there was anybody back there. I
wanted to make sure there was no one there to harm us.”];
US v. Chaves (11C 1999) 169 F3 687,
692 [“lack of information cannot justify the warrantless sweep”].

[14] CAL: P v.
Dyke (1990) 224 CA3 648, 654 [officers saw “a large caliber
handgun within arm’s reach of Dyke that appeared to be loaded”].
OTHER: US v. Lawlor (1C 2005) 406 F3
37, 42 [spent shotgun shells outside]; US v.
Roberts (5C 2010) 612 F3 306, 309 [officer “could see a
pistol magazine and several loose rounds of ammunition in plain
view”]; US v. Richards (7C 1991) 937 F2 1287,
1291 [“Richards opened the door with a gun”]; US v.
Atchley (6C 2007) 474 F3 840, 850 [officers saw a handgun
lying on the bed]; US v. Miller (2C 2005) 430
F3 93, 102 [officer “caught sight of a firearm in plain view”];
US v. James (7C 1994) 40 F3 850, 863
[officers saw “two loaded firearms”]. ALSO SEE: US
v. Barker (7C 1994) 27 F3 1287, 1291 [on a previous
occasion, an officer saw Baker handling a firearm].

[15] OTHER: US v.
Lawlor (1C 2005) 406 F3 37, 42 [occupant “shrugged his
shoulders” when asked about the location of a weapon].

[16] CAL: P v.
Maier (1991) 226 CA3 1670, 1675 [“the police knew that Mr.
Maier habitually pursued his criminal activities with accomplices
in a most dangerous manner”]; P v. Ledesma (2003)
106 CA4 857, 865 [“the residence was the site of ongoing narcotics
activity. Firearms are, of course, one of the tools of the trade
of the narcotics business.”]; Guidi v.
Superior Court (1973) 10 C3 1, 9 [“The value of the
contraband reasonably believed present by [the arresting officer]
was surely not so de minimis as to make remote the
possibility of violent and desperate efforts to resist the arrests
and defend the contraband.”]; P v. Mack (1980) 27 C3
145, 151 [officers knew that one of the occupants “had been
arrested for an armed robbery in which shots had been fired,” and
that weapons taken in a recent burglary might be inside].
9th CIR: US v. Whitten (9C 1983) 706
F2 1000, 1014 [“Members of the drug ring were believed to be armed
and in the general area.”]; US v.
Castillo (9C 1989) 866 F2 1071, 1081 [“one of De La Renta’s
co-conspirators had hired an assassin to kill a DEA Agent”].
OTHER: US v. Hollis (11C 2015) 780 F3 1064, 1069
[“One of the officers testified that he had been told that the
apartment was a ‘drug house,’ with a ‘high level of activity’
where ‘people [were] in and out of the house all hours of the day
or night,’ and that they ‘could expect to encounter a number of
people inside. Based on that information, the officers could draw
the rational inference that there might be armed individuals
inside the apartment.”]; US v. Jones (4C
2012) 667 F3 477, 485 [“the Joneses were involved in the
production and distribution of meth; at least one of their patrons
was known to carry a firearm; and a fugitive was reportedly
staying in the residence.”]; US v.
Cisneros-Gutierrez (8C 2010) 598 F3 997, 1004 [the
occupants possessed “large quantities” of drugs and “several
firearms” and that they “served as enforcers for the drug
trafficking organization”]; US v.
Richards (7C 1991) 937 F2 1287, 1291 [a day earlier, the
defendant was seen with a suspect in the murder investigation];
US v. Burrows (7C 1995) 48 F3 1011, 1016
[officers may consider “the characteristics of those known to be
present and who might be present”]; US v.
Barker (7C 1994) 27 F3 1287, 1291 [“a weapon had been seen
inside the home”]; US v. James (7C 1994) 40
F3 850, 863 [the officer “knew that the lower floor of the duplex
contained illegal narcotics, drug paraphernalia, and two loaded
firearms”].

[17] OTHER: US v.
Burrows (7C 1995) 48 F3 1011, 1017 [“although the officers
repeatedly announced their presence, those in the apartment had
refused them entry, yet could be heard moving about inside”].

[18] OTHER: US v. Waters (8C
2018) 883 F3 1022, 1026 [“the record establishes that officers
began the protective sweep either contemporaneously with, or
immediately following, Waters’s arrest”]; US v. Schmitt (7C
2014) 770 F3 524, 531 [“the officers’ right to sweep the premises
does not end the moment the targeted individual is arrested”].

[19] CAL: P v.
Maier (1991) 226 CA3 1670, 1675 [“Mr. Maier habitually
pursued his criminal activities with accomplices in a most
dangerous manner.”]; P v. Ledesma (2003) 106
CA4 857, 865-67 [officer reasonably believed that “drug users and
those who associate with them are apt to have weapons in the
house”]; P v. Mack (1980) 27 C3 145, 151
[“robbery in which shots had been fired”]. 9th CIR:
US v. Castillo (9C 1988) 866 F2 1071, 1081
[drug conspiracy]; US v. Hoyos (9C 1989) 892
F2 1387, 1396 [drug sales; “any person hidden within could have
heard Deputy Love’s shouted commands”]; US v.
Taylor (6C 2001) 248 F3 506, 514 [drugs and murder];
US v. Burrows (7C 1995) 48 F3 1011, 1017
[“Mr. Burrows and Mr. Lin were suspected of committing a violent
crime involving a firearm”]; US v. Lawlor (1C
2005) 406 F3 37, 42 [drug sales]; US v.
Gould (5C 2004) 364 F3 578, 591 [plot to kill judges];
US v. Henry (DCC 1995) 48 F3 1282, 1284 [“the
fact that the door was open could cause the officer to believe
that anyone inside would be aware that Henry had been taken into
custody”].

[20] USSC: Maryland v.
Buie (1990) 494 US 325, 327. OTHER:
US v. Davis (7C 2022) 44 F4 685, 690 [“The sweep was
undisputedly very limited. It was conducted in a nonaggressive
manner and was limited to areas where a person could be hiding.
The officers did not search any enclosed areas such as drawers or
cabinets and allowed two individuals who were in the residence to
get dressed and step outside without incident.”];
US v. Green (8C 2021) 9 F4 682, 692 [“Here, a team of
officers performed a ‘sweep’ of Green’s apartment that lasted
about ten minutes and including looking inside kitchen cupboards,
trash cans, and even inside a shoebox. This exhaustive search far
exceeded the permissible bounds of a protective sweep”];
US v. Garcia-Lopez (5C 2016) 809 F3 834, 839 [search
between mattress and box spring ok]; US v. Henderson (7C
2014) 748 F3 788, 793 [“The sweep was cursory and lasted no longer
than five minutes.”]; US v. Atchley (6C 2007)
) 474 F3 840, 850-51 [search of refrigerator, ice chest, and
drawer was unlawful]; US v. Gould (5C en banc
2004) 364 F3 578, 587 [“sweep may not be a full search but may be
no more than a cursory inspection of those places where a person
may be found”]; US v. Lauter (2C 1995) 57 F3
212, 217 [officer was “justified in looking in the space between
the bed and the wall, as a person certainly could have been hiding
in that location.”]; US v. Gould (5C en banc 2004) 364 F3
578, 587 [“[The sweep] may last no longer than is necessary to
dispel the reasonable suspicion of danger”];
US v. Delgado (11C 1990) 903 F2 1495, 1502 [“The sweep
lasted no more than three to five minutes”]; US v. Arch (7C
1993) 7 F3 1300, 1304 [“the officers did not dawdle in each room
looking for clues, but proceeded quickly”];
US v. Richards (7C 1991) 937 F2 1287, 1292 [the officer
“moved briefly through two bedrooms, the bathroom and kitchen”].

[21] OTHER: US v. Garges (8C
2022) 46 F4 682, 686 [“In the context of a hotel room like this
one, the entire room is an adjoining space that may be subject to
a cursory inspection under Buie.”].

[22] OTHER: US v.
Roberts (5C 2010) 612 F3 306, 314 [“The officers acted
reasonably… in seizing the weapons for the safety of
themselves and the apartment’s occupants”].

[23] 9th CIR: US v.
Paopao (9C 2006) 469 F3 760, 767 [second sweep permitted
when, after the first sweep, the officer “was not secure in the
notion that no one was left in the apartment”]. OTHER:
US v. Paradis (1C 2003) 351 F3 21, 25 [during
second pass, officers “lifted up the mattress and box spring
‘because that would have been the only logical place someone would
have been able to hide,’ and found defendant lying beneath it.”];
US v. Boyd (8C 1999) 180 F3 967, 975.

[24] USSC:
Maryland v. Buie (1990) 494 US 325, 327. CAL:
P v. Bennett (1998) 17 C4 373, 384-88;
P v. Seaton (2001) 26 C4 598, 632 [“If no one is found,
then the exigency has ended and the police should then merely
maintain control of the premises while a search warrant is
obtained.”]. OTHER: US v. Paradis (1C
2003) 351 F3 21, 29 [“There was no reason to think that there was
another person besides Paradis in the small apartment.”];
US v. Oguns (2C 1990) 921 F2 442, 447 [“The
agents no longer had authority to remain in Oguns’ apartment after
they determined that no one else was there.”]; Sharrar
v. Felsing (3C 1997) 128 F3 810, 825 [“Once all four men
were out of the house and in custody, the arresting officers had
no basis to conclude that others remained inside.”].

[25] CAL: P v.
Koch (1989) 209 CA3 770, 774, 788; P v.
Brown (1989) 210 CA3 849, 858; P v.
Gesner (1988) 202 CA3 581, 589-90; P v.
Freeman (1990) 219 CA3 894, 906. 9th CIR: US
v. Holzman (9C 1989) 871 F2 1496, 1507-8.
NOTE: It is not necessary for the prosecution to prove the
judge would have issued the warrant if the illegally-obtained
evidence had not been included in the affidavit; i.e., if probable
cause remained after the information was removed, it is presumed
the judge would have issued the warrant. P v.
Weiss (1999) 20 C4 1073.

[26] USSC: Murray v.
US (1988) 487 US 533, 542-43. CAL: P v.
Freeman (1990) 219 CA3 894, 906. OTHER: US
v. Swope (8C 2008) 542 F3 609, 615 [the “proper
test” is whether “the police would have applied for the warrant
had they not made the prior illegal observations”].