What is a Protective Sweep?

More on Police Entering and Searching Your Home without a Warrant

Police officers cannot enter your home willy-nilly.  They have to get a judge’s okay that there is “probable cause” to come inside your place, documented in a “search warrant” signed by that judge which they show you when they come inside.  We’ve discussed various ways that police conduct illegal searches and seizures, see:

• Forfeiture Victory for Police: They Can Seize and Keep Assets Even In an Illegal Search Says Texas Supreme Court
• Do Police Need Search Warrants to Access Digital Information?  The Importance of Carpenter v. United States
• Police Coming Into Texas Homes Without A Search Warrant
• The Police and Your Phone: Invasion of Privacy by Police

Warrantless Searches Are Wrong – Unless They’re Not

Under the law, a warrantless entry into your home is presumed to be unreasonable, unconstitutional, and wrong.  United States v. Howard, 106 F.3d 70, 73 (5th Cir. 1997).  But there are exceptions to this general rule, things called “exigent circumstances” that will justify a warrantless entry by law enforcement.

We’ve discussed the troubling parameters of warrantless searches by the police before.  For instance, there’s an important case before the Supreme Court right now that’s considering a police search and seizure in the driveway of a suspect’s friend.  See, The Police Power to Search Your Car:  SCOTUS May Change Things in Byrd and Collins.

Bottom line, you cannot assume that the police won’t barrel into your bedroom or bathroom or kitchen in the middle of the night because you’ve got privacy protections under the constitution and you do not believe they’ve got any “probable cause” to go get a search warrant.

Consider the “protective sweep.”

What is a Protective Sweep?

Picture this: some Dallas police officers go to the home of a person of interest to arrest him for a serious crime.  Maybe he’s a doctor accused of health care fraud.  Maybe she’s a businessperson accused of money laundering.  Maybe it’s a teenager or college student suspected of distribution of illegal drugs.   (Usually, it’s a home – but it can be other kinds of places too.)

While they are there, in this person’s home, they go snooping around the place.  Doesn’t take long, but they do look around – and they don’t have a warrant.  (Arrest warrant, yes; search warrant, no.)

Is this okay?  Maybe.

Without a search warrant, the police can go snoop around the home only in “… a cursory visual inspection of those places in which a person might be hiding.”  Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

So, walk-in closet?  Maybe that’s okay.  But kitchen cabinet?  Not so much.

Also, the “sweep” cannot take very long.  In the words of the U.S. Supreme Court, it must be “quick and limited.”  Id.

How fast?  No longer than “… is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Id.

And if they find evidence of criminal acts while they are snooping around in this protective sweep, then they may grab that evidence to use against the person later.

Why a Protective Sweep?

These warrantless searches of someone’s private home by the police when they’re arresting someone are called “protective sweeps” because they are allowed as protection for the police officers and others who may be nearby.

The rationale from the courts is that these warrantless searches are okay so the officers can protect themselves and third parties when they are making an arrest in a home.

Thing is:  they aren’t always okay to do.  The police cannot do a “protective sweep” in every single arrest.

Not Every Arrest Justifies a Protective Sweep

The courts have held that a protective sweep is legal and okay only when the government can show “… articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”   Buie, 110 S.Ct. at 1093.

So, there’s danger.  There’s a reasonable belief of danger.  There are facts demonstrating this danger to a reasonable and prudent officer of the law.

Notice that the government has to prove the search was acceptable and legally justified.  Not the defendant. 

The police better be ready to establish they had a legal right to do that search of the residence because the search may be challenged down the road as being wrongful.

Notice that the police may violate the law in searching the place.  Happens all the time.  The legal challenge to their actions, i.e., the warrantless search, happens down the road. 

The actual challenge to the search will be much later, in a courtroom, based upon a motion to suppress filed by the defense.  See, What is a Motion to Suppress?

The Judge Decides If Protective Sweep Was Justified

The court will hear evidence on the arrest and the search.  The evidence will be presented by both sides.  This will be in an open court, at a hearing requested by the defense.

The judge will be required to consider everything that happened, the totality of the circumstances.  The judge has to consider “the entirety of the agents’ investigative tactics, particularly those leading up to the exigency alleged to have necessitated the protective sweep.'” Howard, 106 F.3d at 74.  The judge will rule in favor of the search being okay if the judge finds there is an argument that it was reasonable to think the search was okay at the time.

1. The judge will ask if the protective sweep was justified

For the search to be legal, the police must have evidence of exigent circumstances.  Here, they have to show a reasonable belief of a safety risk to the officers for a protective sweep.   Each case is unique, and the prosecutor must provide evidence to the judge that the sweep was legal.   If the arrest is being made in a home of a known gang member where other gang members might be hidden at the time of the arrest, for example, then the government may have evidence of a justifiable protective sweep of the residence to make sure officers are safe from harm from others in the residence.

2. Next, the judge will ask if the search exceeded the scope of a legal protective sweep

The government will also need to demonstrate that the search focused upon places where someone could hide.  If the police look under a bed, then that’s arguable within the scope of a protective sweep because it’s possible for an adult to hide under a bed.  However, if they look into a desk drawer, that’s clearly too small for anyone to hide inside.

The job of the defense in these hearings is to refute the evidence presented by the government that the search was legal.

3. Review of the Judge’s Decision

If the judge rules in favor of the government, then the defense can appeal that ruling.  The case is filed with the appeals court, which will consider all the evidence independently of the judge’s actions.

The fact findings of the trial court judge will be given respect by the appellate court, and the appellate review will look at the evidence presented at the suppression hearing in a light most favorable to the prevailing party at the hearing.  The judge’s legal decisions will be considered, but the appeals decision will make its own mind up about applying the law to the facts (de novo consideration of the law).  United States v. Henry, 853 F.3d 754, 756 (5th Cir. 2017).

What if the Protective Sweep Wasn’t Okay?

If the protective sweep is ruled to be an illegal search, then the evidence discovered during the course of that search is “suppressed” and cannot be used against the defendant.  The things that the police found during their “protective sweep” are excluded from evidence.  If this is the key to the prosecution’s case, then the suppression hearing may be followed with a request that the judge dismiss the case entirely.

There’s also the possibility that the unconstitutional search can form the basis of a civil case based upon damages with the police officers being denied protection from suit under policy immunity due to their wrongful conduct.

You need to understand that the police can and may enter your home without a warrant here in Texas.  They may do so illegally and in violation of the federal constitution. 

It’s important to know there are laws that exist to protect you and the importance of a zealous criminal defense in the event that you are arrested or charged, or your property is taken. 

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”