The Protective Sweep doctrine is THE most underutilized criminal procedure doctrine by law enforcement.

We … hold that 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.

Maryland v. Buie

494 U.S. 325 (1990)

U.S. Supreme Court

February 28, 1990

On Monday February 3, 1986 armed men robbed a Godfather’s Pizza restaurant in Prince George’s County Maryland.  An investigation revealed that one of the workers at the restaurant who was present and ‘victimized’ during the robbery was a biological cousin to one of the suspects. Law enforcement obtained enough probable cause to charge both suspects, one of whom was Jerome Buie.  On Wednesday February 5, 1986 officers executed an arrest warrant at 5400 67th Avenue, Riverdale, Maryland.

Jerome Buie’s house, 5400 67th Avenue, Riverdale, Maryland; the aqua blue right half of the double.

As you can see the house is a double and Mr. Buie lived in the right half.  “Six or seven officers proceeded to Buie’s house. Once inside [with a valid arrest warrant], the officers fanned out through the first and second floors. Corporal James Rozar announced that he would “freeze” the basement so that no one could come up and surprise the officers. With his service revolver drawn, Rozar twice shouted into the basement, ordering anyone down there to come out. When a voice asked who was calling, Rozar 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 by Rozar. Thereafter, Detective Joseph Frolich entered the basement “in case there was someone else” down there. He noticed a red running suit lying in plain view on a stack of clothing and seized it.” Id at 328.

Mr. Buie was convicted of Robbery with a Deadly Weapon as he used a handgun.  A significant piece of evidence was the red jogging suit which Det. Frolich discovered on top of the pile of clothes.  Mr. Buie’s first appeal was overturned in the Court of Special Appeals of Maryland but the Court of Appeals of Maryland overturned his conviction holding that to justify the protective sweep of the home law enforcement must have probable cause to believe that a serious and demonstrable potentiality for danger exists and the prosecution failed to meet that standard.  The State of Maryland appealed to the U.S. Supreme Court, which provided two important and slightly different holdings;

First: “We … hold that 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.” Id at 334

Second: “The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” [emphasis added] Id at 337

Lessons Learned:

  1. The first holding above permits law enforcement with OR WITHOUT probable cause OR reasonable suspicion to conduct a protective sweep of areas immediately adjoining the room of arrest to look for humans who would cause the officers harm. This would commonly include closets, other rooms and spaces that may conceal a person.  This is the ONLY criminal procedure doctrine that I am aware that does not require probable cause or reasonable suspicion before law enforcement can take enforcement action.
  1. The second holding permits law enforcement to go beyond the areas immediately adjoining the room of arrest to search for humans who may cause harm. However, this second, more expanded protective sweep requires law enforcement to articulate a reasonable belief as to why the protective sweep needed to be expanded.  In Buie Corporal Rozar announced to come out then heard a voice downstairs who asked who was calling.  That voice would rise to the level of a reasonable belief, as would footsteps in the basement or footsteps in the floor above the arrest.  Law enforcement would have to hear or perhaps physically feel [floor move] a person in another room to rise to the level of a reasonable belief before the protective sweep could be expanded beyond the rooms immediately adjoining the room of arrest.
  1. The protective sweep doctrine established in Buie in 1990 is one of the most underutilized criminal procedure doctrines available to law enforcement. If an in-home arrest is affected, officers do not need probable cause or reasonable suspicion to look in rooms immediately adjoining the location of the arrest. With some additional information, law enforcement may expand the protective sweep of the home.

Does your agency train on how to conduct protective sweeps?

Don’t fail your training – don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.