Expanding protective sweeps within the home.

• Author: Ruf, Jamie

INTRODUCTION

The home has traditionally held a prized place in Fourth Amendment jurisprudence. (1) However, recent developments in the law governing search and seizure have undermined the traditional concept of the home as a place apart, subject to special treatment for Fourth Amendment purposes. (2) The well-established exceptions to the warrant requirement applied to home searches over the past century--exigent circumstances (3) and search incident to arrest (4)--rendered the warrant requirement far from unassailable. From these exceptions and evolving standards of Fourth Amendment "reasonableness" analysis (5) came the protective sweep doctrine articulated in Maryland v. Buie, (6) which scholars at the time perceived as considerably reducing Fourth Amendment protections in the home. (7) Now, a decade later, circuit courts have begun to expand the protective sweep doctrine even further. The protective sweep doctrine has emerged as distinctly separate from the doctrine of search incident to arrest. Rather than facing the analysis of a presumptive warrant requirement and traditional exceptions, a protective sweep of a home may now be subject only to a general "reasonableness" analysis, should one view espoused in the circuit courts prevail. (8)

Left unchecked, this development carries significant implications because of the special relationship between the rights or expectations of privacy and the legality of police practices under the Fourth Amendment. (9) The expanding protective sweep doctrine reduces the level of judicial scrutiny required before law enforcement conducts investigations by eliminating the need for a warrant in yet another circumstance. As a result, officers' perceptions alone could potentially justify a protective sweep search--effectively, a search incident to investigation. (10) Permissiveness in evaluating police behavior may have evolved as a result of the current need, actual or perceived, for enhanced crime deterrence, part of the reevaluation of the responsibilities of government at a time of crisis in domestic security. (11) While understandable as a response to the exigencies of our day, (12) enhanced police discretion in the context of home searches and seizures has the potential to erode constitutional protections in a way fundamentally inconsistent with our legal tradition. (13) Moreover, other individual freedoms may also suffer in an era willing to contract privacy rights in a host of areas, of which the home is only an example.

This Note proposes that we carefully consider whether and to what extent the home should be considered a place apart in Fourth Amendment jurisprudence. Part II of this Note explains the historic relationship between Fourth Amendment searches, the home, and the right to privacy. It analyzes the dueling clauses of the Fourth Amendment, one implying a warrant requirement, the other a general reasonableness analysis. The traditional analysis of in-home searches emphasized the warrant requirement, albeit with limited exceptions that preceded the protective sweep doctrine. Part II also explains the emerging primacy of the reasonableness standard derived from a police-citizen investigatory encounter in Terry v. Ohio, (14) exposing the contextual shift required to apply this standard to the in-home protective sweep present in Buie.

Part III considers the current approach to in-home protective sweeps as developed in the circuit courts. It discusses how the Fifth Circuit, in U.S. v. Gould, (15) integrated the doctrines articulated in Terry and Buie to conclude that a protective sweep need not be incident to arrest or justified by a warrant or probable cause. It argues that the reasonable suspicion standard as applied in Gould fails to provide adequate protection to traditional privacy interests in the home and potentially allows law enforcement too much latitude. (16

Part III then considers an alternative standard implied by the Sixth Circuit in United States v. Taylor, (17) which emphasized an interaction between probable cause and reasonable suspicion. It suggests that Taylor employs a conjunctive reading of the Fourth Amendment that better serves the privacy interests at stake in the home.

Within this backdrop, Part III suggests potential avenues for the development of the protective sweep doctrine. If, as is historically consistent, society determines that the home should be entitled to special protections even in the modern era, the protective sweep doctrine must be subject to the highest of the legal standards, which could be achieved through a modified warrant requirement. The Taylor court's model could serve as an alternative to a warrant requirement to protect individuals from officer discretion in determining--or creating--exigencies necessitating warrantless protective sweeps.

Part III then discusses how expansion of the protective sweep doctrine necessitates a reevaluation of longstanding privacy interests in the home. While at one time, a special expectation of privacy may have seemed apparent in the home, it may no longer be justified. If, despite our traditions, a consensus exists to abandon the home's protected status to enhance law enforcement's effectiveness, reasonable suspicion would suffice to justify protective sweeps of homes in non-arrest situations. This legal standard accords with the "reasonableness" inquiry adopted increasingly by the Court in other Fourth Amendment contexts, (18) although it has not yet explicitly opened the doors to our homes. Should the Court proceed to apply the general reasonableness inquiry to in-home searches, only the doctrine of consent to enter a home would constitute a barrier to a protective sweep. (19) The ineffectiveness of consent as a deterrent to police entry may mean that protective sweeps of homes will ultimately rely on officer discretion. Presuming equality in enforcement, (20) perhaps Americans are willing to make this sacrifice in the interest of enhanced security.

This Note concludes by reiterating the significance of the relationship between the right to privacy and Fourth Amendment searches of the home. (21) I observe that a diminishment of the protections in the search and seizure area is of great consequence to our expectations of privacy in our homes and, potentially, beyond. The Note suggests that scholars and citizens should carefully watch the expansion of the protective sweep doctrine, which has the potential to encroach upon longstanding Fourth Amendment values.

2. BACKGROUND

   1. The Home: Origins of the Fourth Amendment Privacy Analysis

      The Fourth Amendment explicitly mentions the home in its enumeration of places where Americans have a right to "be secure ... against unreasonable searches and seizures." (22) The Framers had in mind the then common British practice of issuing general search warrants, which had subjected the colonists' homes to intrusive searches for smuggled goods. (23) The Fourth Amendment was designed to protect Americans against similar intrusions by their future government. (24) The British had searched for evidence of crime (i.e. goods on which taxes had not been paid), and the overriding concern of the authors of the Fourth Amendment was to protect the home against such intrusion. (25)

      The Fourth Amendment criminal procedure context, with its particular emphasis on the home's private sphere, provided a natural starting-place for the development of constitutional privacy rights. (26) The Framers' emphasis on protecting the home arose not only from the then-current emphasis on property rights, but also from an early understanding that personal privacy rights were at stake, as well. (27) Boyd v. United States first articulated the clear interrelationship between property and privacy rights (28) and Warren and Brandeis' landmark article defining a right to privacy cited the maxim that "the common law has always recognized a man's house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands." (29) It was well-accepted that privacy received its utmost protection in the ultimate private area: the home. (30)

      The scope of the right to privacy in one's home was intimately linked to the constitutionality of a search or seizure under the Fourth Amendment. (31) The remedy for unconstitutional searches, the exclusionary rule, suppresses evidence obtained even if it supports an inference of wrongdoing. (32) Only a significant competing value, privacy, could merit the use of the exclusionary rule, which hampers the truth-finding function of the courts. The courts must strike a delicate balance when evaluating searches of homes, since these searches are deeply entwined with our Constitution's respect for privacy.

      The intersection of privacy concerns and the need for effective law enforcement and prosecution make it necessary to distinguish situations in which privacy concerns render a search unconstitutional from those in which law enforcement concerns must prevail. The Supreme Court has struggled in various areas of Fourth Amendment jurisprudence to define those situations with clarity, so that law enforcement can conduct its functions without violating the rights of citizens and so that citizens can conduct their lives with certain predictable expectations regarding their relationship with the government. (33)

      The home is only one area where this search for the appropriate rules governing searches and seizures is ongoing. Since so many other areas of Fourth Amendment law hinge their analysis on the home's treatment, however, establishing rules for the home is particularly important.

   2. Choosing a Standard

      Much of the confusion over where to draw the line in evaluating the constitutionality of searches and seizures arises from the inherent lack of clarity in the Fourth Amendment. (34) The two clauses of the Fourth Amendment--the first prohibiting "unreasonable" searches and seizures, the second describing the standard...