§ 17.08 Extending Terry: Protective Sweeps of Residences

• Jurisdiction: United States

§ 17.08 Extending Terry: Protective Sweeps of Residences¹²¹

As defined in Maryland v. Buie,¹²² a "protective sweep" of a residence "is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding."

As discussed elsewhere,¹²³ the Supreme Court ruled in Buie that, as an incident to an arrest of an individual, the police may automatically — i.e., without probable cause or reasonable suspicion — conduct a protective sweep of "spaces immediately adjoining the place of arrest" where people may be hiding. Moreover, Buie teaches that, beyond this limited area, the arresting officers may also conduct a warrantless protective sweep of other parts of the residence if there exists reasonable suspicion "that the area [to be] swept harbor[s] an individual posing a danger to the officer or others."

In Buie, six or seven officers entered B's house with a warrant to arrest him for a crime allegedly committed by B and X. When they entered, they observed a basement; standing on the first floor, an officer ordered anyone in the basement to come out. Eventually, B emerged and was arrested and handcuffed on the main floor. Thereafter, an officer entered the basement to see if anyone else was present. Although he found no one, he discovered evidence in plain view related to the crime, which he seized. The Court stated that the officer acted properly in entering the basement if there were facts that warranted his suspicion that a person posing a danger to him or others was downstairs.¹²⁴

In announcing the new rule, the Supreme Court focused on the lessons to be learned from Terry and Michigan v. Long.¹²⁵ It applied the reasonableness balancing test set out in Terry. In regard to the governmental interest in permitting the warrantless search, the Court observed that both Terry and Long justified weapons searches out of concern for the safety of police officers. Here, too, there was a concern for police safety, perhaps even graver than that which confronted the officers in Terry and Long: "[U]nlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's 'turf.' An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings."

In regard to the individual's privacy interests, the...