I have used the term "Protective sweep" on my reports when referring to a quick search for a possibly gunman in the house. Background: I've responded to several house shootings where the victim either said they didn't know where the suspect went or they didn't know if there are other subjects shot in the house. So we do a quick search of the house for A: the suspect who could possibly sneak up behind us and shoot us while we are rendering first aid inside the house. B: there could be another victim in a different room. Since we are not arresting anyone in the given scenario would I use a term other than protective sweep and if so what would that term be?
Technically it's not a protective sweep. But if you have consent of the homeowner it's lawful. Just describe in your report that the homeowner said the gunman could still be in the house. Thanks for the comment. Excellent question.
@@tacticalattorney Thanks for this video. But had a similar situation. Go in, dead body shot on the couch. Would this just be a welfare check on the rest of the residence for more victims then??
I have not done anything specific to Pennsylvania law however I have several videos on federal 4th Amendment case law. To the extent your state follows 4th Amendment case law, those breakdowns would be applicable.
Does the plain view doctrine play any role here? If I view evidence is it excluded from trial or must I return with a search warrent specific to the items seen? Would my knowledge of the evidence affect the warrent?
Plain view applies here. Plain view always needs a partner, in Buie, the officers were lawfully in the house with an arrest warrant, because the "protective sweep" was also lawful, anything that is in plain view is allowed to be seized. You would need to get a search warrant at that point to continue searching for anything that may not be in plain view.
Great information, the officers in my agency routinely use this term in error and do protective/safety sweeps when they shouldn't. Let's say we are justified in conducting a protective sweep and do find one or more individuals in the house. What then? I can't imagine we're allowed to detain and/or conduct a pat down just because we found someone. We would still need RS for those actions specific to that person correct? Btw, great channel, keep doing what you're doing, it's sorely needed.
Thanks for the comment and question, I'm really glad this is providing some value. To answer you question, The Court in Buie held that officers may detain individuals found during the protective sweep if the officers have a reasonable suspicion that the individuals pose a danger to the officers or others. Of course, officers would need to articulate additional RS that the person is armed and dangerous in order to conduct a Terry frisk, but in most cases the RS would cover both, for example if you find someone hiding in the closet, it would be a strong argument that the person is a danger to police and may have weapons. See United States v. Jenkins, 496 F.3d 344 (4th Cir. 2007), the Fourth Circuit upheld the detention of an individual during a protective sweep where the individual was found hiding in a closet and the officers had reason to believe he might be armed and dangerous. This is definitely not a bright line rule, and you need to check with the case law in your jurisdiction. I hope this helps.
Apparently the courts never dreamed that police officers would use officer safety as an excuse to search without a warrant. Unfortunately the justices projected their own morality onto officers who very frequently don't have a shadow of it, which is why they will always hear a noise from the far side of the house which allows for the extended sweep, or they will always smell marijuana coming from your car which allows for a search. I hope now with body cameras and cell cameras everywhere the justices will begin to realize that although police officers are typically not rubbing Banks, in many cases they are not any more trustworthy than the criminals they are arresting.
I'm not familiar with the case. I did a WL search and found State v. Davila, 203 N.J. 97 (2010). Is that the case you are referring to? I did a quick cursory read through. The case departs from federal precedent in my opinion, which only allows for protective sweeps incident to arrest. Also, because this is a New Jersey Supreme Court case it would only be binding in NJ. I'm not aware of any similar cases from the US Supreme Court.
@@tacticalattorney a New Jersey SC case is only binding in NJ. Isn't the case you just explained out of Maryland? when do we know what's binding for all, or just localized? (Great video tho!)
@@ciscogutierrez6824 Excellent question. The case I cited above is a New Jersey Supreme Court case so it is only binding precedent for New Jersey courts. Generally speaking, state cases are only binding within the state they are issued. The United States Supreme Court decisions are binding on all inferior courts throughout the country.
Can an officer enter an unattended home,state that it’s a protective sweep to look for evidence in a crime,look around say they found something in plain view then exist the home and call for a search warrant
Short answer, no. Protective sweeps are not an exception to the warrant requirement that allows an officer to enter a home without a warrant. An officer must already have a warrant, consent or exigent circumstances to enter the home. The protective sweep allows the officer who is lawfully in the home to expand their search for persons who may present a danger. Thanks for the question!
Can an officer force you out of your home "to preserve evidence" before getting a warrant and then say he needs to do a protective sweep of the whole house. No one was arrested on the property.
Great question. The answer will depend on your state's specific laws but generally, under 4th Amendment case law, police can secure a residence for a search warrant. See Illinois v. McArthur, 531U.S. 326 (2001). Protective Sweeps, as I explained must be incident to arrest and generally wouldn't apply to securing a residence for a search warrant however courts have used that language when explaining the execution of a search warrant.
@tacticalattorney California. I looked up Illinois vs. McArthur because cop told me that case gave him the right to do what they did. I am not a lawyer by any means, but the guy exited on his own and was not let back in for fear of destroying evidence. I can understand that. Apparently, they pulled over my son 3 blocks away and didn't find what they were looking for. They then came to my house and forced me out so that I wouldn't destroy evidence. The funny thing is I didn't even know what they were looking for until I got a copy of the warrant. Nothing was found here either.
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Thank you for your videos. I'm a reserve captain for a small department. I recently found your channel. Thanks again 😎
Thanks for watching. I'm glad to be of service.
I have used the term "Protective sweep" on my reports when referring to a quick search for a possibly gunman in the house. Background: I've responded to several house shootings where the victim either said they didn't know where the suspect went or they didn't know if there are other subjects shot in the house. So we do a quick search of the house for A: the suspect who could possibly sneak up behind us and shoot us while we are rendering first aid inside the house. B: there could be another victim in a different room. Since we are not arresting anyone in the given scenario would I use a term other than protective sweep and if so what would that term be?
Technically it's not a protective sweep. But if you have consent of the homeowner it's lawful. Just describe in your report that the homeowner said the gunman could still be in the house. Thanks for the comment. Excellent question.
@@tacticalattorney Thanks for this video. But had a similar situation. Go in, dead body shot on the couch. Would this just be a welfare check on the rest of the residence for more victims then??
@@ciscogutierrez6824f I’m not mistaken I think that would qualify as exigent circumstances based on the dead body.
Hi
I’m an officer in Phila
Do u have alotta case law breakdowns?
I have not done anything specific to Pennsylvania law however I have several videos on federal 4th Amendment case law. To the extent your state follows 4th Amendment case law, those breakdowns would be applicable.
Great info!
Thank you!
Great info. Thank you
Does the plain view doctrine play any role here? If I view evidence is it excluded from trial or must I return with a search warrent specific to the items seen? Would my knowledge of the evidence affect the warrent?
Plain view applies here. Plain view always needs a partner, in Buie, the officers were lawfully in the house with an arrest warrant, because the "protective sweep" was also lawful, anything that is in plain view is allowed to be seized. You would need to get a search warrant at that point to continue searching for anything that may not be in plain view.
Excellent
Great information, the officers in my agency routinely use this term in error and do protective/safety sweeps when they shouldn't. Let's say we are justified in conducting a protective sweep and do find one or more individuals in the house. What then? I can't imagine we're allowed to detain and/or conduct a pat down just because we found someone. We would still need RS for those actions specific to that person correct? Btw, great channel, keep doing what you're doing, it's sorely needed.
Thanks for the comment and question, I'm really glad this is providing some value. To answer you question, The Court in Buie held that officers may detain individuals found during the protective sweep if the officers have a reasonable suspicion that the individuals pose a danger to the officers or others. Of course, officers would need to articulate additional RS that the person is armed and dangerous in order to conduct a Terry frisk, but in most cases the RS would cover both, for example if you find someone hiding in the closet, it would be a strong argument that the person is a danger to police and may have weapons. See United States v. Jenkins, 496 F.3d 344 (4th Cir. 2007), the Fourth Circuit upheld the detention of an individual during a protective sweep where the individual was found hiding in a closet and the officers had reason to believe he might be armed and dangerous. This is definitely not a bright line rule, and you need to check with the case law in your jurisdiction. I hope this helps.
Apparently the courts never dreamed that police officers would use officer safety as an excuse to search without a warrant. Unfortunately the justices projected their own morality onto officers who very frequently don't have a shadow of it, which is why they will always hear a noise from the far side of the house which allows for the extended sweep, or they will always smell marijuana coming from your car which allows for a search. I hope now with body cameras and cell cameras everywhere the justices will begin to realize that although police officers are typically not rubbing Banks, in many cases they are not any more trustworthy than the criminals they are arresting.
Thoughts on state v davila?
I'm not familiar with the case. I did a WL search and found State v. Davila, 203 N.J. 97 (2010). Is that the case you are referring to? I did a quick cursory read through. The case departs from federal precedent in my opinion, which only allows for protective sweeps incident to arrest. Also, because this is a New Jersey Supreme Court case it would only be binding in NJ. I'm not aware of any similar cases from the US Supreme Court.
@@tacticalattorney a New Jersey SC case is only binding in NJ. Isn't the case you just explained out of Maryland? when do we know what's binding for all, or just localized? (Great video tho!)
@@ciscogutierrez6824 Excellent question. The case I cited above is a New Jersey Supreme Court case so it is only binding precedent for New Jersey courts. Generally speaking, state cases are only binding within the state they are issued. The United States Supreme Court decisions are binding on all inferior courts throughout the country.
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Can an officer enter an unattended home,state that it’s a protective sweep to look for evidence in a crime,look around say they found something in plain view then exist the home and call for a search warrant
Short answer, no. Protective sweeps are not an exception to the warrant requirement that allows an officer to enter a home without a warrant. An officer must already have a warrant, consent or exigent circumstances to enter the home. The protective sweep allows the officer who is lawfully in the home to expand their search for persons who may present a danger. Thanks for the question!
Can an officer force you out of your home "to preserve evidence" before getting a warrant and then say he needs to do a protective sweep of the whole house. No one was arrested on the property.
Great question. The answer will depend on your state's specific laws but generally, under 4th Amendment case law, police can secure a residence for a search warrant. See Illinois v. McArthur, 531U.S. 326 (2001). Protective Sweeps, as I explained must be incident to arrest and generally wouldn't apply to securing a residence for a search warrant however courts have used that language when explaining the execution of a search warrant.
@tacticalattorney California. I looked up Illinois vs. McArthur because cop told me that case gave him the right to do what they did. I am not a lawyer by any means, but the guy exited on his own and was not let back in for fear of destroying evidence. I can understand that. Apparently, they pulled over my son 3 blocks away and didn't find what they were looking for. They then came to my house and forced me out so that I wouldn't destroy evidence. The funny thing is I didn't even know what they were looking for until I got a copy of the warrant. Nothing was found here either.
@@tacticalattorney thank you for responding also
This is an incredible breakdown, thank you 🫡 -sincerely a 3L
Thanks! Glad you could take some value from it.
Agree