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April 1991
SEARCHES OF PREMISES INCIDENT TO ARREST
By
A. Louis DiPietro, J.D.
Special Agent and Legal Instructor
FBI Academy
Quantico, Virginia
All arrests, regardless of the seriousness of the crime for
which they are made, pose serious risks to arresting officers.
In recognition of the danger and the need to discover and seize
evidence, the law has long permitted officers to make a
warrantless search incident to an arrest. (1) However, an
arrest inside premises where officers are in unfamiliar
surroundings and on their adversary's "turf" often pose greater
risks to the arresting officers than on-the-street or roadside
encounters. With these considerations in mind, the U.S. Supreme
Court recently expanded the scope of an incident to arrest
search in the context of an in-home arrest.
This article begins with a brief summary of the general
requirements for searches incident to arrest and then examines
the recent case of "Buie v. Maryland," (2) in which the Supreme
Court expanded the scope of searches of premises incident to
arrest. Such searches now include protective sweeps for persons
under the following two alternative grounds: 1) Searches of
immediately adjoining areas; and 2) searches of other areas
based on reasonable suspicion of danger to the arresting
officers.
GENERAL REQUIREMENTS
A lawful custodial arrest based on probable cause carries
with it the legal authority to conduct a warrantless search
incident to that arrest to secure weapons or means of escape and
to preserve evidence. However, the constitutional validity of a
search incident to arrest does not depend on whether police have
any facts that the person arrested possesses weapons or
evidence. A lawful custodial arrest, standing alone,
establishes the authority to conduct a search incident to
arrest, irrespective of whether suspects are later acquitted of
the offense for which they were arrested. (3) Probable cause to
arrest must exist before searching. (4) But, a search may be
conducted immediately prior to the arrest as long as probable
cause existed prior to the search, and the fruits of the search
do not serve as part of the probable cause. (5)
A search of premises incident to arrest must be conducted
substantially contemporaneous with the arrest. (6) Once
officers exclusively control any personal property not
immediately associated with the person to be arrested, and there
is no longer any danger that the arrestee might gain access to
the property to seize a weapon or destroy evidence, a search of
that property can no longer be justified as incident to arrest.
(7) However, courts have held that arresting officers need not
jeopardize their safety in order to make a contemporaneous
search. In fact, officers may first secure the arrestee with
handcuffs before searching incident to arrest. (8) Such
searches are generally considered substantially contemporaneous
if they follow immediately after an arrest.
The "contemporaneous" requirement applies to searches of
the area within the arrestee's immediate control and to items,
such as luggage, not directly associated with the arrestee.
However, it does not extend to searches of the person, clothing,
or personal belongings on the arrestee's person. (9)
Accordingly, courts have approved delayed incident to arrest
searches of an arrestee's clothing, (10) the contents of a
wallet (11) and address book, (12) but not a briefcase. (13)
In "Chimel v. California," (14) the Supreme Court limited the
scope of an incident to arrest search to the arrestee's person
and areas within his immediate control. Courts have interpreted
this ruling to include not only the arm's length radius
encircling an arrestee's wingspan but also areas accessible to
an arrestee at the time of arrest, regardless of actual
accessibility at the time of search. (15) In that regard, the
court held in "New York v. Belton" (16) that the search of a
jacket located inside the passenger compartment of the car in
which Belton was riding was within the arrestee's immediate
control.
SUPREME COURT AUTHORIZES PROTECTIVE SWEEPS
The scope of a search of premises incident to arrest
authorized by "Chimel" was not always adequate to afford safety
to the arresting officers. Thus, the Supreme Court in "Maryland
v. Buie" (17) expanded the scope of incident to arrest searches
to permit arresting officers to go beyond "Chimel," which limited
such searches to the person and areas within his immediate
control. "Buie" expands the scope of a search of premises
incident to arrest to include a warrantless protective sweep of
all "immediately adjoining" areas. It also authorizes
protective sweeps into "other areas" based on reasonable
suspicion.
Background
In "Buie," two men, one of whom was wearing a red running
suit, committed an armed robbery. Police obtained arrest
warrants for Buie and an accomplice. Two days later, the police
telephonically verified that Buie was home, and officers
proceeded to his house. Once inside, they fanned out through
the first and second floors; one officer shouted into the
basement ordering anyone down there to come up. When a voice
asked who was calling, the officer announced three times, "This
is the police, show me your hands." Eventually, a pair of hands
appeared around the bottom of the stairwell, and Buie emerged
from the basement. He was arrested, searched, and handcuffed.
Thereafter, another officer, Detective Frolich, entered the
basement to determine if someone else was down there and noticed
a red running suit lying in plain view on a stack of clothing.
The officer seized the red running suit which, at trial, was
admitted into evidence over Buie's objection.
Buie did not dispute the right of police up to the point of
his arrest to search anywhere in the house where he might have
been found. Instead, Buie argued that Detective Frolich's entry
into the basement after the point of his arrest was not
constitutionally justified as incident to arrest. The Supreme
Court agreed to review the case to decide the justification
required before Detective Frolich could constitutionally enter
the basement to see if someone else was there. (18)
Supreme Court Decision
The Supreme Court weighed the additional invasion of Buie's
privacy in those remaining areas of his house not searched prior
to his arrest against the interest of the officers in assuring
themselves that Buie's house was not harboring other dangerous
persons who could unexpectedly launch an attack. By noting that
an ambush in a confined setting of unknown configuration is more
to be feared than one in open, more familiar surroundings, the
Court struck the balance in favor of permitting the arresting
officers to take reasonable steps to ensure their safety after
making the arrest.
The Court approved the following two alternate grounds for
police to conduct protective sweeps (19) of premises for persons
incident to arrest: 1) An automatic right to search any area
"immediately adjoining" the place of arrest; and 2) a right to
conduct a protective sweep of "other areas" based on reasonable
suspicion that the area to be swept harbors an individual posing
a danger to those on the arrest scene. This new protective
sweep authority in the context of in-home arrests, when added to
the traditional search incident to arrest authority established
in "Chimel," permits the scope of such searches to be broken down
for analysis into four distinct areas with respect to the
arrest. For illustration, these areas can be thought of as a
series of concentric circles representing a bird's eye view
looking down on the arrest. Two innermost circles represent
searches of the person and items immediately associated with the
person and the area within the arrestee's immediate control.
The outermost circles represent searches of immediately
"adjoining areas" and "other areas," which were approved in
"Buie."
IMMEDIATELY ADJOINING AREAS
Justification--Lawful Custodial Arrest
In "Buie," the Court specifically stated:
"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." (20)
"Buie" thus holds that police need no additional
justification beyond the lawful custodial arrest itself to
automatically sweep areas immediately adjoining the place of
arrest.
Scope--Limited to Persons
This protective sweep authorized by "Buie" is not a full
search of the premises but rather a narrowly confined cursory
inspection of those places where a person might be hiding. (21)
It is important to note that this scope limitation to searching
for only persons is equally applicable to both sweeps of
"immediately adjoining spaces," as well as to sweeps of "other
areas."
Since the Supreme Court did not further define "other
spaces immediately adjoining the place of arrest," police must
look to lower court decisions for guidance in ascertaining the
precise limits to such searches. In "United States v.
Hernandez," (22) a Federal district court upheld the action of
two deputy U.S. marshals in opening a closet door in a living
room where the defendant was arrested and seizing evidence that
was in plain view in the closet. This ruling was predictable,
since "Buie" specifically permitted the arresting officers to
look in closets immediately adjoining the place of arrest.
A more difficult question that police and lower courts will
be forced to address concerns what "other spaces immediately
adjoining" the place of arrest qualify for suspicionless sweeps
under the expanded Buie rationale." The area that may be
subjected to these suspicionless protective sweeps appears to
exceed "Chimel's" area of immediate control limitation. However,
until a body of case law defines the precise parameters for such
searches, a workable rule of thumb for police to follow is the
"one threshold" rule. That rule permits arresting officers to
cross one threshold contiguous with and leading from the room
where the arrest occurred.
In "People v. Febus," (23) a New York court approved a police
officer's pushing open a slightly ajar door to an apartment
after the officer had arrested the youth outside the apartment.
The court believed the area on the other side of the door was a
space immediately adjoining the place of arrest from which an
attack could immediately be launched. The court held that an
officer should not have to close his eyes to reality and await
the glint of steel before acting to protect himself or others.
PROTECTIVE SWEEPS IN "OTHER AREAS"
Reasonable Suspicion Required
Police may conduct a sweep in "other areas" of premises
beyond those areas "immediately adjoining" the place of arrest
if they have reasonable suspicion to fear for their safety. In
order for the sweep to proceed beyond spaces immediately
adjoining the arrest, the Supreme Court in "Buie" held:
"[T]here must be 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." (24)
The reasonable suspicion needed to justify a protective
sweep of "other areas" of premises incident to arrest requires
police to have a reasonable individualized suspicion. The
burden of proving the legitimacy of such warrantless searches is
on the government, and police do not have automatic authority to
conduct them.
The Basis for Fear Must be Articulated
In "United States v. Akrawi," (25) the U.S. Court of Appeals
for the Sixth Circuit held that government agents who conducted
a lengthy protective sweep of premises following an arrest could
not point to any specific reason why they believed another
person dangerous to the agents was in the house at the time of
the arrest. The court suppressed the evidence found during the
sweep because the government failed to meet its burden to
articulate a particular reason to support the agents' belief
that a dangerous individual was present.
Likewise in "Hayes v. State," (26) two officers attempting to
justify a sweep following an arrest testified that there was a
possibility that a dangerous person with a violent past might be
there, but the officers could point to no facts to support their
belief. The Supreme Court of Nevada held that while the
officers need not have probable cause to believe a dangerous
third person is present, the mere possibility of such presence
is not enough. The court reasoned that if any possibility of
danger were sufficient to create a reasonable belief of a
danger, the police would have carte blanche power to conduct
sweeps of citizens' homes incident to virtually any arrest and
that by means of post-hoc rationalizations, the police could
justify virtually any sweep search.
Another issue addressed by the "Hayes" court is important
for all law enforcement officers. When asked why it would not
have been safer simply to withdraw from the residence, a
detective responded that sweep searches of residences incident
to arrest were "standard operating procedure." The court found
such blanket sweep search procedures patently unconstitutional
and ruled that such searches may not be conducted automatically
or as a matter of routine. (27)
Similarly, in "United States v. Castillo," (28) an officer
testified that it was standard procedure to do a protective
sweep of the premises. In rejecting that statement as a "flip
remark," the U.S. Court of Appeals for the Ninth Circuit
observed that the fourth amendment was adopted for the very
purpose of protecting citizens from "routine" government
intrusions into the home and expressed dismay that any trained
police officer in the United States would believe otherwise.
Notwithstanding the officer's erroneous belief that he was
entitled to make protective sweeps as a matter of routine, the
court concluded that the arresting officers did have specific
facts to reasonably believe that other persons were on the
premises to justify a protective sweep.
Sweep Must Terminate When Fear Dispelled
The Supreme Court in "Buie" noted that the protective sweep
aimed at protecting the arresting officers may last no longer
than necessary to dispel the reasonable suspicion of danger,
complete the arrest, and depart the premises. (29) Once police
determine that no person who poses a danger to them is present,
their authority to sweep the premises ends, and they must,
barring other exigencies, leave the residence. (30) In that
regard, the court in "United States v. Akrawi" (31) ruled that
agents who remained in the house for 45 minutes following an
arrest did not have any factual justification to support a
casual relation between the sweep and their claimed necessity to
protect themselves.
CONCLUSION
Most challenges to an officer's search incident to an
arrest in the home will arise in the context of a motion to
suppress evidence found during the search. As in all
warrantless searches, the government bears the burden of proving
that the search falls within one of the few specifically
established and well-delineated exceptions to the warrant
requirement. (32) Where the initial intrusion into areas of a
home gives officers access to evidence in plain view, such
evidence can be seized if its incriminating nature is
immediately apparent. (33) To insure the admissibility of
evidence seized during an in-home arrest, law enforcement
officers should document and be prepared to articulate the
factual justification for any protective sweep conducted
incident to an arrest. Finally, on remand from the Supreme
Court, the Court of Appeals of Maryland ruled in the "Buie" case
that Detective Frolich's protective sweep of Buie's basement was
justified by a reasonable belief that Buie's accomplice might
have been hiding there and might have had the gun used in the
robbery. (34)
FOOTNOTES
(1) United States v. Robinson, 414 U.S. 218 (1973).
(2) 110 S.Ct. 1093 (1990).
(3) Hill v. California, 401 U.S. 797 (1971).
(4) Sibron v. New York, 392 U.S. 40 (1968).
(5) Rawlings v. Kentucky, 448 U.S. 98 (1980). See also,
United States v. Donaldson, 793 F.2d 498 (2d Cir. 1986), cert.
denied, 479 U.S. 1056 (1987); United States v. Hernandez, 825
F.2d 846 (5th Cir. 1987), cert. denied, 484 U.S. 1068 (1988).
(6) Preston v. United States, 376 U.S. 364 (1964).
(7) United States v. Chadwick, 433 U.S. 1 (1977).
(8) See, e.g., United States v. Bennett, 908 F.2d 189 (7th
Cir. 1990), where the court of appeals approved a warrantless
search of a motel room immediately following the arrest of its
occupants, even though both occupants were handcuffed at the
time of the search. The officers were not required to be
"punctilious" in their judgments under the quick developing
circumstances.
(9) United States v. Edwards, 415 U.S. 800 (1974).
(10) United States v. Oaxaca, 569 F.2d 518 (9th Cir. 1978)
(shoes taken from pretrial detainee 6 weeks after the arrest).
(11) United States v. Passaro, 624 F.2d 938 (9th Cir. 1980)
(seizure of arrestee's wallet upon arrival at initial place of
detention, search of its contents, and photocopying of documents
contained therein, even though evidence unrelated to crime for
which arrested).
(12) United States v. Holtzman, 871 F.2d 1496 (9th Cir.
1989).
(13) United States v. Schleis, 582 F.2d 1166 (8th Cir.
1978).
(14) 395 U.S. 752 (1969). In Chimel, the court defined
the area of "immediate control" to mean the area into which an
arrestee might reach in order to grab a weapon or destroy
evidence.
(15) Wisconsin v. Murdock, 455 N.W.2d 618 (Wis. 1990).
Three arrestees were handcuffed in back, face down on the floor
offering no resistance while police searched. In approving the
search, the court held that the scope of search is not dependent
upon the level of control the arresting officers have over the
arrestee or the arrestee's actual ability to gain access to the
area searched, because an officer is not required to weigh the
arrestee's probability of success in obtaining a weapon or
destructible evidence hidden within his or her immediate
control. See also, United States v. Queen, 847 F.2d 346 (7th
Cir. 1988).
(16) 453 U.S. 454 (1981).
(17) Supra note 2.
(18) If Detective Frolich's entry into the basement was
lawful, then the seizure of the red running suit, which was in
plain view and for which the officer had probable cause to
believe was evidence of a crime, was also lawful. Horton v.
California, 110 S.Ct. 2301 (1990).
(19) In Buie, the Court defined a "protective sweep" as a
quick and limited search of a premises, incident to an arrest and
conducted to protect the safety of police officers or others. 110
S.Ct. at 1094.
(20) Id. at 1098 (emphasis added).
(21) Id. at 1099.22 738 F.Supp 779 (S.D.N.Y. 1990).
(22) 738 F.Supp 779 (S.D.N.Y. 1990).
(23) 556 N.Y.S. 2d 1000 (N.Y. Sup.Ct.), appeal granted, 562
N.E. 2d 885 (1990).
(24) 110 S.Ct. at 1098.
(25) 920 F.2d 418 (6th Cir. 1990).
(26) 797 P.2d 962 (Nev. 1990).
(27) Id. at 967.
(28) 866 F.2d 1071 (9th Cir. 1988).
(29) 110 S.Ct. at 1099.
(30) United States v. Oguns, 1990 WL 205208 (2d Cir. 1990).
(31) Supra note 25.
(32) Katz v. United States, 389 U.S. 347 (1967).
(33) Supra note 18.
(34) Buie v. Maryland, 586 A.2d 167 (Court of Appeals of
Maryland 1990).
_______________
Law enforcement officers of other than Federal jurisdiction
who are interested in this article should consult their legal
adviser. Some police procedures ruled permissible under Federal
constitutional law are of questionable legality under State law
or are not permitted at all.