In the Supreme Court of the United States In the Supreme Court of ...

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These circuits recognize it is irrational to allow officers to conduct a protective sweep pursuant to an arrest warrant, while prohibiting such sweeps when the officer is otherwise legally on the premises. See, e.g., Martins, 413 F.3d at 150 (noting that the crucial point of Buie was not why the officers were in the home, but “the reasonableness of the belief that the officers’ safety or the safety of others may be at risk”). Additionally, the Fifth Circuit noted that in Terry and Long, this Court upheld protective searches in non-arrest situations. Gould, 364 F.3d at 584. The Fifth Circuit distilled this Court’s authority into four elements. Protective sweeps are reasonable when: (1) the officer is legally and legitimately on the premises; (2) the officer has a reasonable suspicion of danger; (3) the officer limits the sweep’s scope; and (4) the officer limits the sweep’s duration. Gould, 364 F.3d at 582. 3. The minority circuits incorrectly apply Buie because they wrongly view Buie as an isolated justification for protective sweeps. Only the Seventh and Eighth Circuits, along with one Ninth Circuit panel have limited Buie strictly to its unique facts, concluding that protective sweeps must be incident to arrest. United States v. Waldner, 425 F.3d 514, 517 (8th Cir. 2005); Reid, 226 F.3d at 1027; United States v. Johnson, 170 F.3d 708, 716 (7th Cir. 1999). Such a limitation creates a per se rule and, “for the most part, per se rules are inappropriate in the Fourth Amendment context.” United States v. Drayton, 536 U.S. 194, 201 (2002). More importantly, this minority rule undermines the Fourth Amendment’s reasonableness standard and places the lives of policemen and others nearby at risk. This Court should not sacrifice the safety, and possibly the lives, of police officers and others nearby in favor of an arrest warrant, especially when the Fourth Amendment is built on a foundation of reasonableness. Even during consensual entries, protective sweeps would not allow officers to 11
go on unlimited fishing expeditions. Protective sweeps only allow officers to perform limited, cursory searches based on a reasonable suspicion of danger. Limiting protective sweeps to arrests would force officers to choose between performing their job and exposing themselves and others to danger. It is unreasonable to prevent an officer from protecting his safety, as well as the safety of others, simply because he is legally on the premises, but for the wrong reason. B. The Officer’s protective sweep was reasonable because the Officer was legally on the premises, the Officer had reasonable suspicion of an unknown danger, and the Officer limited the sweep in both scope and duration. Consistent with the majority rule on this issue, the Thirteenth Circuit correctly held the Officer’s non-arrest protective sweep was reasonable. R. at 11. Under the Fifth Circuit’s distillation of protective sweeps, (1) the Officer was legally on the premises for a legitimate reason, (2) the Officer had reasonable suspicion that there was an unknown danger, and (3) the Officer limited the sweep in scope and (4) duration. 1. The Officer was legally on the Convict’s premises for a legitimate law enforcement purpose because the Convict consented to the Officer’s presence in the home and the Officer was securing the Convict’s neighborhood following a burglary. The Fifth Circuit noted that this Court focused on the arrest in Buie because the arrest exposed the officer to danger and justified his presence on the premise. Gould, 364 F.3d at 581. Thus, for a protective sweep to be reasonable, the officer must be legally on the premises for a legitimate reason. Id. at 587 (commenting that this is at least implied in Buie). The Fifth Circuit held a protective sweep was reasonable when officers, in search of a dangerous suspect, entered a home pursuant to consent. Id. at 588–90, 593. In United States v. Gould, a suspect threatened to kill two federal judges. Id. at 580. During the search, the officers went to the suspect’s home and the suspect’s housemate allowed the officers inside. Id. at 588– 89. The housemate did not have the authority to consent to a full search of the suspect’s 12
Page 1 and 2: No. 13-201 ________________________
Page 3 and 4: TABLE OF CONTENTS ii Page Questions
Page 5 and 6: TABLE OF CONTENTS-Continued iv Page
Page 7 and 8: TABLE OF AUTHORITIES-Continued vi P
Page 9 and 10: TABLE OF AUTHORITIES-Continued B. F
Page 11 and 12: investigators quickly determined th
Page 13 and 14: Procedural History On October 1, 20
Page 15 and 16: eckless conduct. Other felony offen
Page 17 and 18: The three seminal rulings governing
Page 19: Amendment intrusion was outweighed
Page 23 and 24: had waited for a search warrant to
Page 25 and 26: The First Circuit found a protectiv
Page 27 and 28: determine whether an offense qualif
Page 29 and 30: eexamined the same issue in light o
Page 31 and 32: F.3d at 7 (commenting that Congress
Page 33 and 34: Subcommittee on Crime of the House
Page 35 and 36: only other listed offenses involvin
Page 37 and 38: The possession of an unregistered s
Page 39 and 40: U.S. Const. amend. IV APPENDIX Rele
Page 41 and 42: (h) to receive or possess a firearm
Page 43 and 44: term applies regardless of whether
Page 45: U.S. Sentencing Guidelines Manual

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