Protective sweeps.

Police officers obtain an arrest warrant and enter a house to arrest a suspect for a violent crime. They quickly locate and arrest the suspect. A second group of officers simultaneously moves through the house looking for any other individuals who might interfere with the arrest. During this walk-through, the officers find evidence of the crime in plain view. The subject subsequently files a motion to suppress the evidence, alleging that it is the fruit of an unconstitutional search.

The officers who walked through the house were conducting a common procedure known as the protective sweep. The lawful protective sweep is an important law enforcement tool because evidence seized in plain view during the sweep is admissible in court.(1) This article will define a protective sweep,(2) discuss the Supreme Court's only protective sweep decision, and review issues recently raised in lower federal courts regarding the practice.

A BRIEF HISTORY

Prior to 1969, incident to a lawful arrest on a premises, police generally searched the arrestee, as well as the entire premises where the arrest occurred, for weapons, evidence, or means of escape.(3) However, in Chimel v. California(4) the Court limited this search incident to arrest to the "arrestee's person and the area 'within his immediate control' - construing that phrase to mean the area from which he might gain possession of a weapon or destructible evidence."(5) In today's parlance, this area is known as the "lunging distance" of the arrestee.(6) The legal prerequisite for this search is the lawful arrest; no other factual justification is necessary.(7)

The Chimel case left police officers in a quandary. Chimel clearly was aimed at protecting officers from the arrestee, but the decision did not address what authority, if any, police have to search beyond the arrestee's lunging distance if they fear an attack from someone other than their subject. The following language in the Chimel decision seemed to rule out any search beyond the Court's narrowly defined limits: "There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs....Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant."(8)

Lower federal courts soon recognized the dilemma created by the Chimel decision, reasoning that no police officers will, or should be expected to, ignore threats to their safety from unseen third parties present during an arrest. Consequently, in certain circumstances, courts began to approve warrantless protective sweeps of premises to counter such threats.(9) Courts differed, however, on the legal justification.(10) The Supreme Court resolved these conflicts in Maryland v. Buie. (11)

THE SUPREME COURT SPEAKS

In 1986, an armed robbery was committed in Maryland. Witnesses told police that one of the robbers wore a red jogging suit. Warrants quickly were issued for Jerome Buie and Lloyd Allen. Two days later, police made a pretextual telephone call to verify that Buie was at home. Several officers entered Buie's house to arrest him. They immediately separated to search for him. One officer called down the basement steps, demanding that any occupants come out. Buie eventually emerged and was arrested and handcuffed. Another officer then entered the basement to ensure it was empty. He noticed a red running suit in plain view on a stack of clothing and seized it.

Buie filed a motion to suppress the running suit evidence, claiming it was seized as a result of an illegal search. The trial court denied the motion, and Buie was convicted of armed robbery and a weapons offense. The Maryland State Court of Appeals reversed the decision. It ruled that the protective sweep of the basement was unlawful because the officer did not have probable cause to believe that someone in the basement posed a serious danger to the officers.(12) The U.S. Supreme Court agreed to review the case.(13)

SUPREME COURT ANALYSIS

The Supreme Court never questioned the concept of the protective sweep or the authority of arresting officers to conduct it in appropriate circumstances. The Court simply defined a protective sweep in the first sentence of the opinion, then quickly moved on to resolve the issue of the proper legal justification for such a sweep, as well as its scope. The Court established several broad principles regarding the protective sweep that are important for police officers to remember.

First, the protective sweep of a premises clearly is a search under the Fourth Amendment to the Constitution.(14) The Buie Court defined the protective sweep as "a quick and limited search of premises, incident to an arrest and conducted to protect police officers or others."(15) As a search, the Fourth Amendment commands that the protective sweep be reasonable.(16) A search of a house or office, like the protective sweep, generally is not considered reasonable unless co