©2011 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com) 2011 Arizona v. Fisher
On May 19, 2011, the Supreme Court of Arizona decided Arizona v. Fisher [i], which serves as an excellent review of the law as it pertains to protective sweeps of residences by law enforcement officers. The facts of Fisher, taken directly from the case are as follows:
In May 2006, Mesa police responded to a call alleging an aggravated assault. The victim, who was bleeding from a cut on his head, told police he had been pistol-whipped by a man known as “Taz.” The victim described Taz and directed police to an apartment complex where he believed Taz lived.
Other officers went to that apartment complex, where Laquinn Anthony Fisher lived. After officers knocked and announced their presence, Fisher and two others came out. None had a weapon and all three were cooperative. Fisher, whose appearance matched the description given by the victim, identified himself to officers as “TA.”
Despite having this information, officers thought further investigation was necessary because the gun allegedly used in the assault was still “unaccounted for.” Apparently without asking whether anyone was still inside, police entered the apartment to see if anyone else was present. Inside, officers smelled marijuana and observed open duffle bags containing marijuana. They did not find anyone in the apartment. After the sweep, officers obtained written consent from Fisher’s roommate to search the apartment and seized the marijuana. Officers later brought the assault victim to the apartment, and he identified Fisher as his attacker. [ii]
Fisher was charged with various crimes including possession of marijuana for sale. He filed a motion to suppress the marijuana and the trial court denied the motion. Fisher was convicted by a jury and he subsequently appealed the denial of his motion to suppress to the court of appeals. The court of appeals affirmed the denial of the motion to suppress. Fisher appealed to the Supreme Court of Arizona.
The issue before the Arizona Supreme Court was whether the warrantless entry, articulated as a protective sweep, was reasonable under the Fourth Amendment.
The court first reviewed the relevant precedent regarding this issue. The court stated that, while typically officers must obtain warrants to enter a home, there are various exceptions to the warrant requirement that have been held as reasonable under the Fourth Amendment. [iii] The court then stated that one of the exceptions to the warrant requirement is the “protective sweep” which was first recognized by the United States Supreme Court in Maryland v. Buie. [iv] Quoting Buie, the court stated
[I]ncident to [an] arrest the officers [can], as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” But to justify a broader sweep, there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing danger to those on the arrest scene. [v] [internal quotations omitted]
Thus, under Buie, the court observed that there were two types of warrantless home searches incident to a lawful arrest. The first type allows the officers to look into areas immediately adjacent to the location of arrest. [vi] The second type allows a protective sweep of the residence when the officer can articulate specific facts that a person posing a danger to the officers is within the residence. [vii] On the other hand, the court observed that if officers act “purely on speculation” that a person who poses a threat is in the residence, the protective sweep would be unreasonable. [viii] The court also observed that the “common thread” among cases involving constitutionally reasonable protective sweeps is that the officers “have specific, articulable facts that someone who could pose a safety threat is inside the residence.” [ix] The court then cited to numerous case from other jurisdictions to support this rule. [x]
The Arizona Supreme Court also cited the United States v. Gandia [xi] from the Second Circuit Court of Appeals and stated that it was very persuasive. Regarding Gandia, the court stated
[In Gandia], officers responded to a reported dispute between a building superintendent and a tenant. Officers were given a description of a suspect who might be carrying a gun. Upon arrival, they saw Gandia, who matched the description of the suspect, but determined that he was unarmed. Officers escorted him to his apartment and asked if anyone else was there. He said “no” and allowed the officers to enter his apartment, but not to search it. Once inside, they nonetheless conducted a protective sweep and discovered a bullet. The Second Circuit held that the sweep was invalid because the officers had no reason to believe that a person might be hiding in Gandia’s apartment. Although there was an unaccounted-for weapon, nothing indicated that “there was a person hiding in the apartment who might use it.” The court emphasized that “‘lack of information cannot provide an articulable basis upon which to justify a protective sweep.'” [xii] [internal citations omitted]
The Arizona Supreme Court then applied the facts of Fisher’s case to the precedent previously discussed. The court observed that the officers in Fisher could not articulate specific facts that indicated that another person was inside Fisher’s apartment. Further, there is no evidence that the officers attempted to find out how many people lived at that residence. The court stated that even though there was a weapon that was unaccounted for, no facts were present to indicate that there was another person in the residence that posed a threat to the officers.
After a review of the facts applied to the precedent, the court held
[O]fficers cannot conduct protective sweeps based on mere speculation or the general risk inherent in all police work. Because the officers here did not articulate specific facts to establish a reasonable belief that someone might be in the apartment, the protective sweep was invalid. [xiii]
As such, the decision of the court of appeals was vacated and the case was remanded to the trial court for further proceedings consistent with this holding.
NOTE: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] 2011 Ariz. LEXIS 27 (Decided May 19, 2011)
[ii] Id. at 2-3
[iii] Id. at 4 (citing Michigan v. Fisher, 130 S. Ct. 546, 548 (2009)
[iv] 494 U.S. 325 (1990)
[v] Id. at 5 (quoting Buie, 494 U.S. 334)
[vi] Id. at 5
[vii] Id. at 6
[ix] Id. at 7
[x] Id. (citing United States v. Murphy, 516 F.3d 1117, 1120-21 (9th Cir. 2008) (determining fact that owner of storage unit who had outstanding arrest warrant was not accounted for justified officer’s reasonable belief that another person could be present); United States v. Lawlor, 406 F.3d 37, 42 (1st Cir. 2005) (finding quick protective sweep justified when officers arrived at residence where gunshot had been reported, shooter had not been identified, and defendant “shrugged” when asked about the gun); United States v. Gould, 364 F.3d 578, 592 (5th Cir. 2004) [*8] (en banc) (upholding protective sweep of mobile home when officers have consent to enter bedroom and a known dangerous suspect was not in bed, as previously reported) ; United States v. Taylor, 248 F.3d 506, 514 (6th Cir. 2001) (approving protective sweep when officers heard scuffling noises from inside before being admitted into apartment and suspect’s demeanor indicated he was hiding something). The more specific facts supporting a reasonable belief that an area contains a potentially dangerous individual, the more likely the protective sweep is valid. See, e.g., United States v. Tapia, 610 F.3d 505, 511 (7th Cir. 2010) (protective sweep proper when officers had six separate valid articulable facts); United States v. Davis, 471 F.3d 938, 945 (8th Cir. 2006) (listing several articulable facts).
[xi] 424 F.3d 255 (2nd Cir. 2005)
[xui] Id. at 8-9 (citing Gandia, 424 F.3d 258-264)
[xiii] Id. at 10