Armed Forces Appellate Court Follows Majority on "Protective Sweep" Exception to Warrant Requirement.

The protective sweep exception to the warrant requirement does not neccesitate an arrest while in a home, so long as the law enforcement agents are lawfully in the home and are concerned about safety.

 

United States v. Keefauver, C.A.A.F., No. 15-0029



 

     The U.S. Court of Appeals for the Armed Forces ruled that law enforcement agents may make "protective sweeps" if they are lawfully in a house and have a justifiable concern for safety. They also indicate that this must not be a part of a "standard procedure."

 

     Some circuits have ruled that this "protective-sweep exception" is only applicable during an in-home arrest. But this court is following the majority of circuits, allowing for such sweeps whenever they are in a residence legally.

 

     This standard comes from the Supreme Court decision of Maryland v. Buie, U.S. 325 (1990). It allowed for warrantless post-arrest sweeps in two situations:

•       "As an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched."
 
•      Officers may also engage in a warrantless sweep when "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."

    This case included a sweep of the second type given above, and the court confirmed the standard but held that the agent's actions in this case were not up to snuff as they could not give facts that indicated danger that needed to be swept for.

   

     This was because the agents had watched the house for hours prior and had seen a package delivered and left on the step for an hour until the teenage son returned home and brought it inside. When the police entered soon after they smelled marijuana and claimed that the young man was not smoking alone, and that since most drug-related crimes become violent they needed to protect themselves. Though the trial court agreed with this reasoning, the appellate court did not.



 

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