A Good Lesson on the Limits of the "Protective Sweep" Exception to the Warrant Requirement

United States v. Edward Gandia, Docket No. 04-6477-cr (2d cir. Sep. 19, 2005) (Straub, Sack, and Kravitz, D.J.): Yet another fine opinion by Judge Sack, this time reversing the district court's order denying Mr. Gandia's motion to suppress evidence seized as the result of a "protective sweep" of the defendant's apartment. Although no new legal ground is broken, the opinion serves as a reminder to all that the "protective sweep" exception to the warrant requirement, recognized in Maryland v. Buie, 494 U.S. 325 (1990), does not automatically allow the police to ramble through a suspect's home to look for 3rd parties whenever the police are present in the home; rather, such sweeps are permitted only where police have "a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Id. at 336. The opinion also contains some good dicta on an open issue in this Circuit, one on which the other Circuits have split: Whether a protective sweep is permitted only when the defendant has been arrested in his home, or whether such a search is allowed even when the police are present in the defendant's home solely by his consent.

The essential facts are thus. Three officers arrived at an apartment building in response to a complaint that there was a dispute between a tenant and the superintendent, and that one of these men "might be wielding a gun." Op. at 4. Gandia was the tenant and fit the description of the person described as possibly having a gun. Gandia and the super were both in front of the building when the police arrived.

Gandia denied having a gun but was frisked anyway. No gun was found. Gandia also told the police that he lived by himself in an apartment in the building.

The officers then asked Gandia if they could speak with him in his apartment, rather than outside in the rain. Gandia agreed and let the officers into his kitchen, which was right inside the door. While Gandia spoke with two of the officers in the kitchen, the third officers -- apparently without Gandia's knowledge or notice -- ambled into the adjacent living room and found, allegedly in plain view, a bullet. He then went into the adjoining bedroom and saw a poster depicting different kinds of bullets.

Based primarily on the bullet and the poster, the police obtained a search warrant for Gandia's apartment. A gun and additional ammo were found, and he was prosecuted under § 922(g), the felon-in-possession statute.

Gandia moved to suppress the evidence found through the search warrant, contending that the warrant was invalid because it was based upon evidence obtained through an unlawful search. Specifically, he argued both that (1) Buie did not authorize a protective sweep in this case because the police were in Gandia's home by his consent, and not to arrest him; and (2) even if Buie applied to this case, the sweep was unauthorized because the officers had no reason to believe that the apartment harbored a 3rd party posing a danger to them. The district court denied the motion to suppress, and Gandia was convicted after a stipulated bench trial.

The Circuit reversed on ground (2), thus declining to reach ground (1). [NB: This is the same maneuver used by the Court in United States v. Moran Vargas, 376 F.3d 112 (2d Cir. 2004), a great win by Michael Weil of this Office]. Even assuming that a protective sweep is permissible outside the arrest warrant context, the Court emphasized that Buie does not automatically allow the police to look through other parts of the defendant's home. Rather, the protective sweep, justified solely by the potential presence of "unseen third parties in the house" who may pose a danger to the police, is permissible only when "supported by articulable facts that would cause a reasonable officer to believe the area [sweeped] might harbor other people who might pose a danger to the officers." Op. at 17. As the Supreme Court cautioned in Buie, 494 U.S. at 336: "The type of search we authorize today . . . is decidedly not 'automatic,' but may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Thus, "[o]fficers must point to facts which give rise to an individualized suspicion and cannot rely solely on generalizations that suspects are usually accompanied by dangerous third parties." Op. at 18.

Here, no facts justified such a suspicion. As the Court explained, although the facts may "support a reasonable inference that Gandia was hiding a gun in the apartment, we do not see how they support the inference that there was a person hiding in the apartment who might use it." Op. at 18. And "any concern that Gandia himself might be dangerous was fully and permissibly addressed by frisking Gandia, and by a search within his 'grab area.' . . . The search of an adjoining room to which Gandia had no ready access was unnecessary for this purpose." Id.

Finally, the Court adds some good dicta regarding the issue raised but not resolved -- i.e., whether a protective sweep is authorized even when the police are not present in the defendant's home pursuant to an arrest warrant but through his consent -- suggesting its disapproval of this "expan[sion]" of Buie. Op. at 14. First, the Court points out that Buie itself specifically defined a "protective sweep" as "a quick and limited search of premises, incident to an arrest,"494 U.S. at 327 (emphasis added), and that Buie occurred in the "context of a physical entry to execute an arrest warrant." Op. at 14. Second, the Court noted a potential problem with allowing the police to conduct such sweeps even when they are present in the home on the defendant's consent: "[W]hen 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." Op. at 15. Indeed, the Court used the facts of this case to illustrate the likelihood of pretext, given that the police had no reason to enter Gandia's home in the first place. This refreshing recognition of real-world police practices offers hope that, in the next case that comes down the pike, the Court will limit Buie to the context of arrest warrants.