Protective sweeps are an issue that will sometimes appear in Criminal Procedure questions, and if you understand exactly how they work you’ll be able to easily identify the correct answer.
How Do Protective Sweeps Work?
When they are allowed: When the police make a valid arrest and they have reason to believe that there might be other individuals on the premises that pose a danger to them.
What the police are allowed to do: Conduct a quick search of the areas of the premises where a person might be hiding (to protect their own safety). During the course of a lawful protective sweep the police are allowed to seize any illegal items that are in plan view.
What the police are NOT allowed to do: Search areas where a person could not be hiding. This basically means areas that are too small for a person to fit inside of. If the police seize any illegal items they see while searching an area they are not allowed to search, it will be a violation of the defendant’s Fourth Amendment rights.
Examples
Example 1: The police have a valid warrant to arrest a man in his house, and they have reason to believe the man’s accomplice might also be in the house. After the officers enter the house and arrest the man, one of the officers conducts a protective sweep of the house to look for the accomplice. During this protective sweep the officer opens the door to the upstairs bathroom, enters the bathroom, and spots a bag of cocaine on the bathroom countertop. The officer seizes the cocaine and the man is charged with possession of cocaine. Have the man’s Fourth Amendment rights been violated? NO.
Analysis: The police had reason to believe that the man’s accomplice was in the house, so they were entitled to conduct a protective sweep of the premises for their own safety. The accomplice could have been hiding in the bathroom, so the officer had the right to look there. The police are allowed to seize any illegal items in plan view, so long as the police have a right to be in that area in the first place. Therefore, the seizure of the cocaine is valid and legal.
Example 2: The police have a valid warrant to arrest a man in his house, and they have reason to believe the man’s accomplice might also be in the house. After the officers enter the house and arrest the man, one of the officers conducts a protective sweep of the house to look for the accomplice. During this protective the sweep the officer enters the upstairs bathroom and opens up a small drawer underneath the countertop, where he spots a bag of cocaine. He seizes the cocaine and the man is charged with possession of cocaine. Have the man’s Fourth Amendment rights been violated? YES.
Analysis: Once again the police were entitled to conduct a protective sweep of the premises for their own safety because they had reason to believe that the man’s accomplice was in the house. However, the purpose of a protective sweep is to locate other people on the premises, and for that reason protective sweeps are limited to areas where a person might be hiding. A person could not possibly have been hiding in the small drawer underneath the bathroom countertop, so the officer’s search of the drawer was not proper. Therefore the seizure of the cocaine was invalid and a violation of the man’s Fourth Amendment rights. As such, the man would succeed in challenging the possession of cocaine charge.
What to Understand
- When the police make a valid arrest and have reason to believe that there might be other individuals that pose a danger to them on the premises, they are allowed to conduct a protective sweep for their own safety.
- A protective sweep is limited to a quick search of the premises where a person might be hiding.
- The police can seize any illegal items in plain view during the course of a lawful protective sweep.
- The police are not allowed to search areas where a person could not be hiding while conducting a protective sweep. Any illegal items seized during the course of such a search are a violation of the defendant’s Fourth Amendment rights.