Protective Sweep Exception to Warrant Requirement Extended to Non-Arrest Context

United States v. Alfred G. Miller, Docket No. 04-2637-cr (2d Cir. Nov. 16, 2005) (McLaughlin, Cabranes, Mukasey (by designation)): In this unfortunate decision, the Circuit extends the protective sweep exception to the warrant requirement recognized in Maryland v. Buie, 494 U.S. 325 (1990), to situations where no arrest is at issue. In Buie, the Supreme Court authorized police officers who were lawfully in a suspect's home to execute an arrest warrant to conduct, in addition, a limited sweep of the premises -- "a cursory inspection of those places where a person may be found" -- if they possess "articulable facts which . . . 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." Id. at 334. The Circuit now holds that a protective sweep is justified whenever the police are lawfully on the premises (e.g., to execute a protective order (as in this case) or with a resident's consent), so long as they have a reasonable suspicion that an individual present in another area of the home poses a threat to the officers.

This case resolves an issue that the Circuit has twice dodged in recent years. See United States v. Gandia, 424 F.3d 255 (2d Cir. 2005); United States v. Moran Vargas, 376 F.3d 112 (2d Cir. 2004). It aligns the Second Circuit with the majority of the Circuits that have confronted this issue, see Op. at 9-10, though the Ninth and Tenth Circuits have rejected such an extension of Buie, id. at 10.

Regardless of this decision, it is important to keep in mind that the Buie exception to the warrant requirement is still a narrow one. Police officers must be on the premises lawfully. They must "possess 'articulable facts which . . . 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.'" Op. at 8, quoting Buie, 494 U.S. at 334. And the sweep authorized is a limited one that "may extend only to a cursory inspection of those spaces where a person may be found," 494 U.S. at 335, and may "last[] no longer than is necessary to dispel the reasonable suspicion of danger," id. at 335-36.