SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

© 2012 Robert C. Phillips. All rights reserved
here, allowed for the search of the defendant’s car in
violation of the later decision in Gant.
But see People v. Diaz (2011) 51 Cal.4 th 84, where the California
Supreme Court held that a warrantless search of an arrestee’s
person, and of personal property “immediately associated with the
person,” and an inspection of the contents of any container found
on the subject’s person, is lawful, even though the search of the
container is delayed for a substantial time period of time. Thus,
the warrantless search of the defendant’s cell phone 90 minutes
after his arrest, taken from him and impounded with his other
property, was lawful.
The “Protective Sweep:”
Contrary case law from another jurisdiction (State v. Smith
(Ohio 2009) 920 N.E. 949), makes this issue ripe for
United States Supreme Court review. However, the US
Supreme Court has denied certiorari. (Diaz v. California
(Oct. 3, 2011) 132 S.Ct. 94; 181 L.Ed.2 nd 23].)
Defined: A quick, limited premises search incident to a lawful
arrest in a residence has been upheld by the U.S. Supreme Court if
the arresting officers have a “reasonable belief” that there is
another person on the premises who poses a danger to those on the
arrest scene. (Maryland v. Buie, supra; People v. Dyke (1990)
224 Cal.App.3 rd 648, 661; People v. Block (1971) 6 Cal.3 rd 239.)
“A ‘protective sweep’ is a quick and limited search of
premises, incident to an arrest and conducted to protect the
safety of police officers or others.” (People v. Ormonde
(2006) 143 Cal.App.4 th 282, 292.)
A protective sweep of a trailer upheld when a suspect in a
narcotics trafficking case, upon seeing the officers’
approach, ducked back out of sight, attempted to close the
door, and closed the blinds. (United States v. Arellano-
Ochoa (9 th Cir. 2006) 461 F.3 rd 1142; protective sweep
made after an immediate warrantless entry was made,
defendant was arrested, and a gun was observed on the
floor near the front door.)
A protective sweep (although not referred to it as such)
during the execution of a search warrant, where the officers
had knowledge that a suspect had a firearm registered to
him, is also reasonable at least when that suspect had not
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