[Ed.note: This article reviews a court case (US v. White) that is related to protective sweeps. The case is not yet decided, and would not be binding on all jurisdictions. However, it is a case that would likely be persuasive in other courts. Regardless, the events in the case are likely to happen in all jurisdictions, and by examining the case now, we might be able to make good decisions when faced with similar circumstances in the future. As with all of our articles, this is not legal advice, and you should refer to your department’s standard operating procedures and legal counsel for guidance.]
Making an arrest is one of the most dangerous situations for a law enforcement officer, and was the leading circumstance during which officers were feloniously killed in 2012. Courts have recognized the real danger associated with arrests to officers, and often provide officers a wide latitude of authority to search arrested suspects. However the extent of the area that can be extended for a protective sweep has remained in the gray area.
United States Third Circuit Court of Appeals
On April 14, 2014 the Third U.S. Circuit Court of Appeals decided the case of United States v. White (2012), providing additional clarification in what authority officers have in conducting protective sweeps of residences where an arrest has been made. The U.S. Third Circuit encompasses Delaware, New Jersey, Pennsylvania and the U.S. Virgin Islands, however decisions from one Federal Appellate Court weigh heavily on the overall case law on Constitutional matters. As such, this decision has application throughout the United States.
United States v. White
Early in the morning of April 12, 2012 Pennsylvania State Police Troopers responded to a domestic disturbance between a father and daughter. Like many northern States, law enforcement in the rural areas is under the jurisdiction of the State Police. Sheriff’s Departments typically handle the County jails, protecting the Court, and serving judicial papers, though their deputies do maintain law enforcement authority.
This disturbance reportedly involved a person “under the influence of drugs or alcohol”, with the father dragging the daughter around the house. Worst yet, the father reportedly was “waving a loaded firearm around”. While Troopers responded State Police Dispatchers revealed that the father, White, had a history of fighting with officers and resisting arrest, clearly making this one of the worst case scenarios for officers.
When the Troopers arrived two people were looking out from a mud room that was attached to the trailer home. Having information that a party had been “waving a loaded firearm around” the two Troopers approached with guns drawn. White, the father, exited first and appeared to be stumbling as he walked, leading the Troopers to believe he was drugged or intoxicated. He was taken into custody about 20 feet from the mud room, was patted down and placed into one of the Trooper’s cruisers away from the residence. The Trooper did not find a weapon on White.
The second person was White’s daughter Samantha, and she exited a little behind White, but did not come all the way to the Troopers. The Troopers saw that she was significantly smaller than White and appeared to be the victim. She was not handcuffed, and told Troopers there was no one else inside. One of the Troopers decided to check for himself and entered the mud room.
Once inside the Trooper observed two firearms just inside the doorway, a revolver and a shotgun. The Trooper seized the weapons and secured them in his cruiser. The Trooper then went back with Samantha, checking each room to ensure nobody else was present – a protective sweep. Several more gun cases and a burnt marijuana cigarette were observed but none of the additional items were seized.
White was advised his Miranda rights and told Troopers that he was a gun collector, and owned many firearms. In addition, White told Troopers that he carried guns because he believed people were trying to kill him, and that he had killed some small animals on his property earlier in the day.
Several weeks later Troopers obtained a search warrant, based in part on the two firearms seized the day of the disturbance. White had previously been convicted of a felony, thereby prohibiting his possession of any firearms or ammunition. During the search of White’s residence they seized 91 additional firearms. White filed a motion to suppress the firearms and his inculpatory statements, alleging the initial entry into the mud room that led to the discovery of the first firearms violated his 4th Amendment right.
In the initial hearing the U.S. District Court denied the motion to suppress, relying heavily on the U.S. Supreme Court case of Maryland v. Buie. With his motion denied, White pled guilty with the right to appeal. This appeal landed in the 3rd U.S. Court of Appeals for determination.
Reasoning for Protective Sweeps
Of particular importance in the appeal is the testimony of the Troopers. During direct testimony the Trooper that entered the mud room, and later the residence, testified that the reason he entered was “to make sure that there was no one inside the residence,” and “just to see if there was no one inside the residence”. The reasoning was clearly stated to be for “everyone’s safety.” The testimony went well beyond a standard “officer safety” argument that has sometimes been overused as a justification for police action. In addition the Trooper testified that due to the report of a firearm, and potential other victims, the protective sweep was necessary. When directly questioned, the Trooper testified that he searched for people, not evidence, saying he looked for “an injured person or a person that could be a threat to myself”.
Remember, that during this sweep the Trooper did observe additional evidence, but that evidence was not seized or tampered with at that time. In addition, no drawers or papers were examined during the sweep, adding to the Trooper’s validity.
Based upon such testimony and evidence the U.S. District Court, relying on Maryland v. Buie, ruled that the Trooper’s search was a reasonable “search incident to arrest”. Of particular note is the Court’s decision that the Trooper’s testimony was “most credible”, and found that in addition to the dispatched report, the Trooper’s actions had “a profound objectively-reasonable concern about their safety”. With that in mind the U.S. District Court ruled that the Troopers faced a scene “fraught with danger”, and that their “very limited search incident to the arrest” was done “with great fidelity” to their 4th Amendment restrictions. White’s motion to suppress was denied and his conviction for being a felon in possession of a firearm upheld.
Third Circuit Court of Appeal Review
However the Third Circuit Court of Appeals ruled that the District Court erred in its citation of the first prong of Maryland v. Buie as a justification for the Troopers actions. In the Buie case, the protective sweep occurred after an arrest inside of a residence, which did not occur in the White case.
Instead the Court of Appeals stated that its previous opinion in Sharrar v. Felsing allowed “a sweep incident to an arrest occurring just outside the home must be analyzed under the second prong of the Buie analysis.” The Court of Appeal went on to state that the entry into the home was the “chief evil” that the 4th Amendment protects citizens against government intrusion.
However, the Appeals Court also acknowledged that there are a few exceptions to the warrant requirement that allow officers to enter into and search a citizen’s home. Particularly to the White decision the Appeals Court, quoting from the Buie decision, advised that officers are allowed to look in closets and other spaces immediately adjoining the place of arrest. Beyond that officers must have additional “articulable facts which, taken together with rational inferences, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger those on the arrest scene”.
Buie prong 1 allows a warrantless search of the home incident to arrest, when that arrest occurs inside of the residence. Buie prong 2 allows a protective sweep of the residence when the arrest occurs just outside of the residence, but requires additional information that would justify the entry into the home. Since the government and the District Court relied so heavily on prong 1 of Buie the Appellate Court remanded the case back to the District Court for review under prong 2.
Though the Third Circuit Appeals Court remanded the case back to the District Court hearing the case, the Appeals Court laid a strong foundation for a finding in favor of the officers based upon prong 2 of the U.S. Supreme Court case of Maryland v. Buie.
Officers should read closely the justification for such a protective sweep and obviously follow their policies and local Court rulings. In order for a protective sweep of a home to be allowable when an arrest is made outside of a residence, several additional factors must be present. Most important are the following:
- Arrest in close proximity to the home
- Independent and articulable factors that lend to the possibility of weapons or other persons being present
- The very limited intrusion by officers once inside the home – looking only where persons could be hiding, and not looking for or seizing evidence.
In the case of United States v. White 2012, the Pennsylvania State Police Troopers did an excellent job of documenting their actions and testifying towards their intent in conducting a protective sweep of the residence. The initial report was of a physical domestic disturbance that included an intoxicated and armed person. Met with a person matching that description very close to the residence, weighs heavily in favor of the Troopers conducting a protective sweep of the entire residence as indicated by the 3rd Circuit Appeals Court.