What Is a Protective Sweep by Police? When Is It Improper?

In many cases, police will arrest someone and then conduct a “protective sweep.” What is this? Is it just a gratuitous “free search” to look for more evidence of a crime? After all, if the suspect is already arrested, what authority do police have to continue searching for evidence? This can be a frustrating situation.

Brief Synopsis: A protective sweep search by police is a warrantless search of an area near the suspect’s immediate vicinity for officer safety from a retaliatory attack and for anything within reach of the suspect, even if the suspect is already in handcuffs.

A protective sweep is a search for people that can be a danger after one or more suspects have been arrested. However, officers often use the term in a mistaken way. They may use it to describe a search for weapons inside a vehicle within grabbing distance of a suspect or inside a home for things in plain view. These types of searches may not be legal, but officers regularly characterize them as “protective sweeps,” perhaps because of the wide latitude such searches are afforded for officer safety.

The reader here should understand the limits of such a search. In the U.S. Supreme Court case of Maryland v. Buie (1990) 494 U.S. 325, the court set forth the initial acceptable justifications for a protective sweep of a residence by police. The court determined that incident to an arrest, "the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Id. at p. 334).

Long Beach Courthouse
In interpreting and applying Buie, the California Supreme Court recently held that a protective sweep which follows a detention or arrest not actually inside the residence is not per se reasonable. In People v. Celis (2004) 33 Cal.4th 667, the defendant, suspected of drug trafficking, was stopped by police behind his house, held at gunpoint and then handcuffed and made to sit on the ground. The officers then entered defendant's house under the guise of a “protective sweep” to determine whether there was anyone inside who might endanger their safety.

In reversing the Court of Appeals denial of the suppression motion, the court held that the protective sweep was unlawful and specifically noted when the officers entered the home, “they did so without any information as to whether anyone was inside the house, and there is no indication that when stopped by the officers, either defendant was armed.” The court concluded that “[t]he facts known to the officers before they performed the protective sweep fell short of what Buie requires, that is, "articulable facts" considered together with the rational inferences drawn from those facts, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to be swept harbors a person posing a danger to officer safety.”

In order to conduct a protective sweep, there must be a reasonable suspicion that another person is in the premises and that the person is dangerous. The police could not enter the defendant’s bedroom on the basis of a protective sweep. The defendant was in cuffs and presented no danger. The roommate who was permitted inside had been run and cleared. There was no evidence of any criminal activity in the house or that there was anyone else in the house, let alone a dangerous person. The search was illegal.

In a different, but equally common context, we see “protective sweep” searches described in domestic violence cases quite often. In People v. Werner (2012) 207 Cal.App.4th 1195, the police arrested the defendant for domestic violence.

The arrest was outside the defendant's home. The defendant asked his roommate to get the defendant's keys and shoes from his bedroom. The police officer accompanied the roommate to the bedroom. While there, the officer smelled marijuana and saw marijuana in plain view. Naturally, the police officer seized it as evidence and defendant was then charged with possession for sales, as there was quite a bit.

Defendant filed a motion to suppress at the trial court level, which was denied. He then appealed to the Sixth District Court of Appeals, which reversed the trial court. It explained that there must be a reasonable suspicion that another person is in the premises and that the person is dangerous, in order to conduct a protective sweep. Buie, 494 US 325; Celis, 33 C4th 667. The court ruled that the police could not enter the defendant's bedroom on the basis of a protective sweep. The defendant was in cuffs and presented no danger. The roommate had been run and cleared. There was no evidence of any criminal activity in the house or that there was anyone else in the house, let alone a dangerous person.

The court of appeals found the search illegal, so it reversed the denial of the motion to suppress. People v. Werner (6th App. Dist., 2012) 207 Cal.App.4th 1195, 144 Cal.Rptr.3d 266.

We find both of these cases extremely helpful in establishing boundaries for what the police cannot seize as evidence in a purported “protective sweep” and hope that the reader can apply these to good use in his or her particular case.

For more information about search and seizure issues, please click on the following articles:

1. Is One Hour and Twenty Minutes Too Long For Police to Wait to Conduct a Cell Phone if Search Without a Warrant Incident to an Arrest?
2. Is an Officer’s Smell of Marijuana Enough to Search Someone For Weapons?
3. Bedroom Search Based on Misinformation: Evidence Suppressed?

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