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Fourth Amendment – Search and Seizure – The Protective Sweep Doctrine


USA v. Hassock

Decided January 28, 2011 Second Circuit Court of Appeals

Issue : Whether the search of the defendant’s bedroom and seizure of a gun found under the bed was lawfully conducted pursuant to the Protective Sweep Doctrine, when the police had no warrant, proper consent, exigent circumstances, or even probable cause to believe that Hassock was present.

Held: The search was illegal and the gun suppressed because the in conducting the sweep the police had not other legitimate purpose and the "sweep" search was a pretext to find the gun and they did not have a warrant, exigency, or authorized consent to conduct the search.

Facts :

Information was supplied to a Special Agent ( “Quinn”) of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) in November 2008. Agent Quinn identified the confidential source as “CS-1″ in a complaint filed in support of an arrest warrant for Hassock.

In the complaint, Agent Quinn stated that CS-1 saw BASIL LNU, a/k/a “David St. Walton,” the defendant, with a black semiautomatic handgun in BASIL LNU’s home, located at 3201 Mickle Avenue in the Bronx, New York. CS-1 identified the building to me and other law enforcement agents and described the layout of the basement apartment. CS-1 further stated that BASIL LNU is a marijuana dealer. CS-1 also provided me with a picture of BASIL LNU. CS-1 further stated that CS-1 believes BASIL LNU is an illegal alien and is from Jamaica.

In order to obtain the true identity of “Basil,” which was then unknown, the Task Force conducted residence checks and record checks. These efforts were unsuccessful, and the Task Force resolved to speak with the subject of their investigation at his home.

Accordingly, on November 25, 2008, Agent Quinn and four other Task Force members headed to the basement apartment at 3201 Mickle Avenue. The purpose of the visit, according to Quinn, was to conduct surveillance and to “knock and talk,” that is to “knock on the door and interview potential residents to see if the information that we have is accurate, the Task Force made the decision to pursue their investigation by simultaneously knocking on the front and rear doors of the apartment. Quinn walked to the rear of the building and there found a woman inside the apartment speaking to members of the Task Force.

At that point, according to Quinn, “[t]here was a brief exchange about who’s here. The young lady said, essentially, I don’t know, you guys woke me up. Is anyone else in the apartment, words back and forth like that. Can we look around? And she said yes.” Quinn did not recall whether he overheard this conversation or whether it was repeated to him by another member of the Task Force.

In any event, Quinn himself had no conversation with the woman who opened the door, nor did he or any other Task Force member ascertain her identity or question her further before proceeding into the interior of the apartment. The Task Force gained access to Hassock’s bedroom and once inside the bedroom walked around the bed, and squatted down to look under the bed. Underneath the bed, and six to eight inches from the edge of the bed, Quinn discovered a Hi-Point .380 caliber pistol with a defaced serial number.

It is this pistol that forms the basis of the firearm count with which Hassock was charged. By motion filed on June 9, 2009, Hassock sought to suppress from the evidence to be introduced at trial the firearm seized from his bedroom, contending it was discovered as the result of an illegal search.

Discussion and Analysis :

Evolution of the Protective Sweep Doctrine

The Fourth Amendment protects “[t]he right of the people to be secure in their person, houses, papers and effects against unreasonable searches and seizures.” U.S. Const. amend IV. Because “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” Payton v. New York, 445 U.S. 573, 585 (1980) (internal quotation marks omitted), “[i]t is a basic principle of Fourth Amendment law that searches inside a home without a warrant are presumptively unreasonable,” Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (internal quotation marks omitted).

The Supreme Court found the presumption to be rebutted in the case of searches that fall under the definition of “protective sweep”: “A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person may be hiding.” Buie, 494 U.S. at 327.

The protective sweep doctrine first described by the Supreme Court in Maryland v. Buie, 494 U.S. 325 (1990). There, as the District Court correctly summarized, “the Supreme Court applied the Fourth Amendment reasonableness test and permitted a limited warrantless search, or protective sweep, in a home by officers who were executing an arrest warrant inside the home and who had a reasonable suspicion that an individual posing a threat to the officers was present elsewhere on the premises.”

The Supreme Court in Buie formulated the issue before it as “what level of justification is required by the Fourth and Fourteenth Amendments before police officers, while effecting the arrest of a suspect in his home pursuant to an arrest warrant, may conduct a warrantless protective sweep of all or part of the premises.” The Court resolved the issue as follows: “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.” Id. at 337 (emphasis supplied).

The Supreme Court thus has had occasion to apply the protective sweep doctrine only in the context of an in-house arrest pursuant to an arrest warrant.

The Second Circuit has interpreted the Buie decision to allow a protective sweep of a house where entry was made by police pursuant to “lawful process.” See United States v. Miller, 430 F.3d 93, 95 (2d Cir. 2005). In Miller, police officers accompanied a man who had secured an order of protection into an apartment he had shared with the subject of the order, who had threatened to “‘put a bullet through his head.'” Entry was made pursuant to the terms of the order, which permitted the removal of personal belongings in the apartment. When the subject of the order sought to enter a bedroom, an officer gave him permission to do so but followed him into the bedroom “‘[f]or safety.'” There the officer observed a shotgun standing upright in an open closet. The shotgun in Miller, like the handgun in this case, gave rise to a charge of possession of a firearm after a previous conviction for a felony.

In arriving at our conclusion in Miller, we observed that “[a]t the core of Terry, Long and Buie is the common understanding that the Fourth Amendment’s reasonableness requirement is sufficiently flexible to allow officers who have an objectively credible fear of danger to take basic precautions to protect themselves.” In that case the Second Circuit held that a law enforcement officer present in a home under lawful process, such as an order permitting or directing the officer to enter for the purpose of protecting a third party, may conduct a protective sweep when the officer possesses articulable facts which taken together with the rationale 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 scene.

Where officers cannot supply specific and articulable facts warranting a reasonably prudent officer to believe that an individual posing a danger is lurking in an area to be swept, the Second Circuit has found lacking an essential element necessary to justify a search under the protective sweep doctrine as defined in Buie. See United States v. Vargas, 376 F.3d 112, 117 (2d Cir. 2004).

In Vargas, the defendant allowed two investigating agents into his hotel room and permitted them to look around the room. The agents apparently found nothing in the room and proceeded to interview the defendant. Noticing the bathroom door ajar, one of the agents headed to the bathroom and was told by the defendant that he could not enter. The agents called in a third agent, and one of the three entered the bathroom and found heroin there. In rejecting the contention that the search of the bathroom was a protective sweep, we “conclude[d] that the agents’ testimony did not provide sufficient articuable facts that would warrant a reasonably prudent officer to believe that an individual posing a danger to the agents was hiding in the bathroom of [defendant’s] motel room.”

Although the Second Circuit did not decide this issue, the did note that when police have gained access to a suspect’s home through his or her consent, there is a concern that generously construing Buie will enable and encourage officers to obtain that consent as a pretext for conducting a warrantless search of the home.”

Although the Second Circuit has joined the majority of our sister circuits to the extent that they conclude “that specific, articulable facts giving rise to a reasonable inference of danger may justify a protective sweep in circumstances other than during the in-home execution of an arrest warrant,” Miller, 430 F.3d at 100 (emphasis supplied), we have done so only in a case where officers entered a home “under lawful process,” in that case an order of protection.

In this case, the Second Circuit found that it was not necessary to determine whether the protective sweep exception is limited to situations involving the execution of legal process (as was the case in Miller) or extends (as the government urges) to any situation where police are lawfully on the premises for a legitimate governmental reason antecedent to the sweep. Certainly the agents here had no legal process and, although they went to the Hassock apartment with a legitimate purpose- the questioning and possible arrest of Hassock- when Hassock did not answer the door, that purpose could not be pursued until Hassock was found.

The Second Circuit held that under these circumstances, the sweep cannot be viewed as a reasonable security measure incident to Hassock’s interrogation or arrest. Instead, the “sweep” itself became the purpose for the agents’ continued presence on the premises insofar as they thereby searched the location for Hassock. As the district court found, it may have been objectively reasonable for agents to think that Hassock’s presence on the premises posed a danger to their safety. But a protective sweep is reasonable only to safeguard officers in the pursuit of an otherwise legitimate purpose.

Where no other purpose is being pursued, a sweep is no different from any other search and, therefore, requires a warrant, exigency, or authorized consent, none of which were present here.

Under the circumstances, the officers undertook a full search for the object of their inquiry rather than a protective sweep incident to an independent lawful purpose. They did so without a warrant, proper consent, exigent circumstances, or even probable cause to believe that Hassock was present. To the extent that sister circuits hold differently under similar circumstances, the Second Circuit declined to follow their lead.