Constitutional Law - Eighth Circuit permits broad protective sweep during execution of arrest warrant inside suspect's home - United States v. Green.

Author:Gambale, Richard A.

Constitutional Law--Eighth Circuit Permits Broad Protective Sweep During Execution of Arrest Warrant Inside Suspect's Home--United States v. Green, 560 F.3d 853 (8th Cir. 2009)

The Fourth Amendment's proscription against unreasonable searches and seizures effectively limits the federal government's power to invade an individual's privacy. (1) Under certain circumstances, however, courts have deemed searches that protect a police officer or other government agent from danger to be reasonable. (2) In United States v. Green, (3) the United States Court of Appeals for the Eighth Circuit considered whether an officer exceeded the permissible scope of a protective sweep incident to arrest where the officer, in searching for confederates, seized incriminating evidence that came into plain view after the officer climbed onto a chair to examine the top of a large dresser. (4) The court held that the officer acted reasonably in protecting himself from danger, and therefore did not contravene the Fourth Amendment. (5)

State and federal law enforcement agents entered Fred A. Green's home to execute a warrant for his arrest, believing Green was inside. (6) Upon entering, officers immediately encountered and secured four men in Green's living room. (7) Shortly thereafter, United States Marshalls and Dallas police officers found and arrested Green in his garage. (8) Other officers who were not involved in the arrest, however, continued searching multiple areas of Green's residence. (9)

When an officer stepped into Green's master bedroom, he noticed a large dresser measuring 71" high, 68" wide, and 13" deep at the top. (10) Although the officer could not see anyone, he believed the space on top of the dresser could hide a person, so he climbed on a chair to investigate. (11) Instead of finding a person at the top of the dresser, the officer discovered a 6" depression revealing a MAC-10 9mm machine gun, a Derringer .410 caliber pistol and $13,644 in cash, all of which the officer seized. (12)

The United States charged Green with several felonies, including possession of a machine gun in furtherance of drug trafficking and being a felon in possession of a firearm. (13) Green moved to suppress the evidence found in the dresser on Fourth Amendment grounds. (14) The district court denied Green's motion despite concluding that an officer would have been able to see someone hiding on top of the dresser from the floor. (15) A jury subsequently convicted Green on all charges and the judge sentenced him to 548 months in prison. (16) Green appealed, arguing the police violated his Fourth Amendment rights because they exceeded the permissible scope of a warrantless protective sweep by looking into the depression on the top of the dresser. (17) The United States Court of Appeals for the Eighth Circuit affirmed, holding that the search was reasonable under the Fourth Amendment because officers must act quickly to protect themselves from danger, and if the officer reasonably believed a person could hide on top of the dresser, he was justified in taking measures to ensure no one was actually hiding there. (18)

Recent Fourth Amendment jurisprudence indicates courts will uphold a warrantless search or seizure as long as it is reasonable, despite earlier Supreme Court decisions requiring government agents to obtain a warrant for nearly every search or seizure. (19) This shift in constitutional jurisprudence stems largely from the ambiguous language of the Fourth Amendment itself: while the first clause undeniably requires that every search or seizure be reasonable, it is unclear whether the second clause limits the first or merely articulates that a warrant, if required, must be supported by probable cause. (20) Furthermore, the Fourth Amendment's historical underpinnings provide little insight in construing the uncertain text. (21)

The decision of Terry v. Ohio (22) perhaps best demonstrates the Supreme Court's interpretive move from strict adherence to the warrant requirement (subject to narrowly defined exceptions) to an open-ended reasonableness inquiry. (23) In Terry, the Court was not concerned with whether the officer possessed a warrant for the limited search of the suspect's person (which the Court termed a frisk), but rather balanced the suspect's privacy interest with the government's interest in the safety of its agents and others. (24) The upshot of the Court's analysis was that the limited search was permissible based merely on a showing of specific and articulable facts that the suspect posed a threat to the officer's safety. (25) The Court similarly eschewed a per se rule in favor of a contextual analysis in Michigan v. Long, (26) wherein it applied a Terry-type balancing test in sanctioning a limited search of an automobile's passenger compartment to protect an officer who reasonably believed the suspect was dangerous and could gain access to weapons. (27) The Court's method of balancing interests to determine Fourth Amendment reasonableness has resulted in several other instances where an officer may search or seize in the absence of a warrant, such as searches incident to lawful arrests. (28)

The Court's pragmatism also came to bear on the Fourth Amendment's historically most sacred protected area--the home. (29) First, in Payton v. New York, (30) the Supreme Court held that police may enter a suspect's home without a search warrant when executing an arrest warrant for the suspect, provided the officers have reason to believe the suspect is home. (31) Then, in Maryland v. Buie, (32) the Court concluded that the Fourth Amendment authorizes a warrantless protective sweep of an arrestee's home based on reasonable suspicion that the area harbors confederates posing a danger to officer safety. (33) Some circuits, including the Eighth Circuit, have concluded that reasonable suspicion to conduct a protective sweep is established as a matter of law where the arrestee is suspected of drug trafficking. (34) In Buie, the Court explained that a protective sweep is "not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found." (35) Despite the limited scope of a Buie sweep, officers may seize items in plain view during the sweep if the incriminating character of the object is "immediately apparent." (36)

In United States v. Green, officers possessed a valid arrest warrant for a suspected drug trafficker, and therefore, were justified not only in entering Green's home without a warrant, but also in conducting a protective sweep of Green's residence to protect themselves from attack. (37) The lion's share of the Eighth Circuit's analysis focused on whether the officer exceeded the permissible scope of a protective sweep by climbing onto a chair to determine whether the top of a large dresser concealed a confederate. (38) The court observed that because officers must "act quickly and decisively" to "verify that potential hiding spaces are empty," the district...

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