Vol. 3, No. 2 | October 2008

Protective Sweep of a Home for a Weapon After an Arrest That Took Place Outside the Home

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu

[Note:  Unless indicated otherwise, materials in quotation marks are quotes from the opinion of the court deciding the case under discussion.  Also, unless indicated otherwise, a case discussed below was decided by the United States Supreme Court.  Descriptions below of the facts of a case often quote verbatim (or at least draw heavily) from the opinion’s description of the facts or from the summary of the case provided by one of the legal reporters, such as Lexis-Nexis or www.findlaw.com]

Williams v. Commonwealth, 642 S.E.2d 295 (Va. Court of Appeals, 2007)(en banc)

Facts:  Based on a report that Williams, who had two outstanding arrest warrants, was staying at the apartment of his girlfriend, Bowman, Sergeant Barnett went to the apartment.  He spoke to Bowman, who denied that Williams was in the apartment.  Barnett remained nearby and observed Bowman leave the apartment with her young daughter about ten minutes later.  Barnett again remained in the area.  About an hour later, a woman approached him and said she was Bowman’s sister.  She told Barnett that Williams was in the apartment, that he had a gun, and that the police had Bowman’s permission to enter the apartment.  At almost the same time, another woman approached Barnett (crying) and told him she was Williams’ sister and that she had just talked with her brother on a cell phone.  She gave the phone to Barnett.  When Barnett informed Williams on the phone that he was a police officer, Williams told Barnett that he was armed and would come out shooting if the police came in the apartment.  After a brief stand-off (during which no shots were fired), the police persuaded Williams to leave the apartment peacefully.  They instructed him to leave his gun at the top of the stairs that led down one flight to an outside entrance to the apartment.  Williams gave up without incident.  The police went in the apartment immediately thereafter without a warrant or without explicit consent from Bowman.  They found a gun at the top of the stairs and charged Williams possession of a firearm after having been previously convicted of a violent felony.

Issue:  Were the police justified in entering the apartment without a warrant to locate the missing gun?

Answer:  Yes (8-3, Judge Haley for the court).

  1. The court upheld the validity of the police actions, but it is not crystal clear as to the basis for its decision.  It appears to meld the protective sweep exception to the warrant requirement with the exigent circumstances exception.
    • In Maryland v. Buie (1990), the Supreme Court held that after arresting a suspect in his home, the police may conduct a protective sweep of the areas immediately adjoining the place of the arrest regardless of whether there is any reason to think there is anyone in those areas.  The police may conduct a protective sweep of the rest of the premises only if there is reasonable suspicion to think there is someone in those areas that might pose a danger to the police.
    • When the police face some emergency that would result in the loss of evidence if they delay searching to obtain a warrant, they may search without a warrant, but they must possess probable cause to think contraband or evidence of a crime is at the place they search.
  1. The court discussed both the protective sweep and exigent circumstances concepts.  It permitted the sweep, concluding that “the ‘reasonable suspicion’ threshold was met given the presence of both exigent circumstances and at least one loaded weapon. The protective sweep here was a ‘quick and limited minimal intrusion,’ as prescribed by Buie… After ‘balanc[ing] the privacy-related and law enforcement-related concerns,’ we hold the protective sweep did not violate the Fourth Amendment.”  The Court seems to base its decision on the rules concerning protective sweeps (thus, the references to reasonable suspicion and Buie), but it also refers to exigent circumstances.  In doing so, it fails to make clear how exigent circumstances fit into the analysis.  In addition, it pays lip service to the notion that there was reasonable suspicion to think someone was in the apartment (although the evidence to that effect – an alleged statement from a neighbor that someone else was still in the apartment – is very sparse, at best) without seeming to base its decision ultimately on that fact.
  1. In the Robertson case discussed below, the Virginia Supreme Court makes no mention of this case in its decision.  However, the Virginia Court of Appeals ruled in Robertson that the protective sweep in that case was unlawful.  It distinguished Williams in this way:  “We held that the protective sweep in Williams was valid because the police had information indicating: 1) the presence of others inside the apartment; and 2) the presence of weapons inside the apartment. These facts gave police a ‘reasonable suspicion’ that the apartment ‘harbor[ed] an individual posing a danger to the officers and others.’ ….By contrast, in the case at hand, the officers had no such information indicating the presence of another individual inside appellant's dwelling. The evidence demonstrates that Officer Thompson was told by Tiffany that appellant was alone in the house. The admitted videotape supports her statement. In the thirty-five minute tape, the camera was focused entirely on the front door and windows of the house. At no point did police appear to see or hear another individual inside the house. The tape also shows appellant yelling at the officers before they entered, ‘Ain't nobody else in the house!’”
  1. However, it appears the only support in Williams for a reasonable suspicion that there was someone else in the apartment other than Williams was a police officer’s observation of someone in a window of the apartment before Williams came out.  The officer could not see the person well enough to determine if it was Williams or someone else.  However, there was no apparent reason to think the person observed in the window was someone other than Williams.
  1. While it is understandable why the court might be sympathetic to the actions of the police in this case, it is not at all clear why it was either necessary or desirable to uphold this search.  Clearly, the police wanted and needed to search the home for the gun they reasonably believed Williams had with him in the apartment.  However, through the exercise of some patience, they could have quickly obtained the consent of Bowman to go into the apartment or they could have secured the premises while a search warrant was obtained.
  1. Note that it would appear that this case can be cited for the proposition that the protective sweeps authorized by Buie can be conducted not only after an arrest that occurs in the home, but also after an arrest that takes place just outside the home.  But see the next case.

Commonwealth v. Robertson, 659 S.E.2d 321 (Virginia Supreme Court, 4-18-08)

Facts:  Robertson and his live-in girlfriend, Tiffany, had an argument at their home.  Tiffany left the house and called 911.  While she was on the phone, she heard two shots fired from inside the house.  She remained outside while waiting for the police to arrive.  An extended conversation between the police and Robertson took place, while a SWAT team surrounded the house.  Robertson claimed to have a shotgun in the house and admitted to firing the shotgun; however, no shots were fired while the police were present. The confrontation ended when police officers subdued Robertson with a "Taser" electric stun weapon as he was sitting on the windowsill with his legs hanging out of the window. After being stunned by the Taser, Robertson fell to the ground outside of his residence where he was placed into police custody.

After being apprehended, Robertson told the officers, as had Tiffany, there "[a]in't nobody else in the house."  No one asked Tiffany or Robertson for permission to enter their home, and neither of them voluntarily consented to the police entering the dwelling. However, after Robertson was in custody, police officers broke through the barricaded front door and entered the residence. Once inside the residence, officers seized a shotgun and took photographs. The shotgun and photographs were the subject of the motion to suppress.

Issue:  Were the officers justified in conducting a protective sweep of the house?

Answer:  No.  (7-0, opinion by Justice Goodwyn)

1.       “The 4th Amendment permits the police conduct a limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief, based on specific and articulable facts, that the area to be swept harbors an individual posing a danger to those on the arrest scene.  (Citing Maryland v. Buie, a 1990 Supreme Court case)…. In this case, Robertson was arrested outside of his home. Given the information provided to the police by Robertson and [Tiffany], and the officers' observations during their extended standoff with Robertson, once Robertson was arrested, there were no articulable facts to indicate that Robertson's home harbored anyone posing a danger to the individuals present at the arrest scene. The protective sweep exception is not applicable in this instance where the officers broke through the barricaded door of Robertson's home, after apprehending Robertson.”

2.       As pointed out by the court, this arrest occurred outside the home.  Could the police have done a protective sweep of the house if they possessed reasonable suspicion to think someone who could pose a danger to the police was in the house?  Some of the language in the quote above suggests an affirmative answer to this question.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.