©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On January 13, 2012, the Fourth Circuit Court of Appeals decided United States v. Rebecca Jones and Kipling Jones[i], which serves as an excellent review of the law related to protective sweeps of residences. The facts of the Jones’ case are as follows:
On the evening of October 28, 2008, the Cherokee County, North Carolina Sheriff’s Office received a call from Mike Monteith, a narcotics officer with the Polk County, Tennessee Sheriff’s Office. Monteith advised that an officer from the Bradley County, Tennessee Sheriff’s Office had notified him that an individual had been admitted to a hospital in Bradley County with serious burn injuries believed to have been sustained in a meth lab explosion. Monteith investigated the incident by visiting the burn victim’s house and speaking with the victim’s son, who advised that his father had been “at Kip and Becky’s house” earlier that day. During Monteith’s visit, the victim’s son received a telephone call, which the caller ID indicated was from the Jones’ home phone.
Based on information relayed by Monteith, four officers of the Cherokee County Sheriff’s Office were dispatched to the Jones residence in Murphy, North Carolina. When the officers arrived at the Jones residence around 1:00 on the morning of October 29, 2008, they observed seven motor vehicles on the property, including a “camper,” a truck, and an “SUV.” As they approached, the officers did not observe any disturbances or signs of activity within the house, which was dark except for some light apparently emanating from a television set in the living room. In response to the officers’ knock at the front door, the Joneses opened the door after a few moments and met the officers on the front porch. The officers explained that they were investigating a burn victim’s injuries and a possible meth lab explosion. Kipling Jones informed the four officers that he did not know anything about a burn victim or a meth lab explosion and asked the officers to leave his property.
The officers started to comply but, as they were about to leave the driveway, Officer Sean Matthews recalled that Kipling Jones might be the subject of an outstanding arrest warrant. One of the officers then confirmed by radio that there was an arrest warrant for Mr. Jones and a corresponding request for extradition from the State of Georgia. The officers promptly returned to the Jones residence to arrest Mr. Jones. On this occasion, the officers found Mr. Jones in the open doorway of the residence, informed him of the outstanding warrant, and placed him under arrest. Although Mr. Jones protested that he had already been arrested on that warrant, he did not resist. During the arrest, Rebecca Jones raised her voice to question her husband’s arrest, but did not either impede the arrest or otherwise cause difficulty for the officers.
As Officer Matthews was placing Kipling Jones in handcuffs, the other officers entered the house through the front door with their handguns drawn. Officer Dustin Smith promptly informed the Joneses that the officers were going to conduct a protective sweep of the residence, explaining that this was being done for the officers’ safety. The officers asked the Joneses if there was anyone else in the house, and they replied that there was not. From his vantage point on the front porch, Officer Smith did not see any indication of illegal drug activity, and he did not hear or see any movement from within the house to indicate the presence of other persons. Smith was nevertheless suspicious that others might be in the house, based primarily on his prior dealings with the Joneses, whom he had investigated at various times since 2003 as part of his duties as a narcotics officer.
During the officers’ protective sweep, the Joneses were in the living room of the house. From the front door, the officers walked through the living room and the adjoining kitchen, and quickly scanned the remaining rooms but did not find anyone else in the house. Although there was a closed door leading to the basement, Officer Smith did not open it because there was a cloth along the door’s bottom, possibly used to retain heat, and Smith did not believe that anyone had been through the basement doorway. Smith and the other officers noticed a number of items in plain view during their sweep. Based on his training and experience in narcotics investigations, Officer Smith believed that several of these items constituted precursor materials for the manufacture of meth. Smith also detected a strong odor that he associated with meth production. In the living room, Smith observed a pipe containing marijuana and a pill that had been crushed into powder, lying on an end table beside the couch where Rebecca Jones had been sitting.
Mrs. Jones was also then placed under arrest for possession of marijuana, and both Joneses were transported to the Cherokee County Sheriff’s Office. An officer remained at the Jones residence to secure the house until the other officers could obtain a search warrant. That afternoon, Officer Smith applied for and obtained a search warrant from the Superior Court of Cherokee County. Smith’s application for the warrant specifies that he and Officer Matt Kuhn had “conducted a safety search of the [Jones] residence for other persons” and detailed the items they had observed in plain view. Later that day, the North Carolina State Bureau of Investigation executed the search warrant, seizing, inter alia, a meth mixture and drug paraphernalia.[ii]
The Jones’ were subsequently indicted for federal drug violations. They each filed a motion to suppress the evidence found during the protective sweep that formed the probable cause for the search warrant. The district court denied each motion to suppress. The Jones’ plead guilty with the right to appeal. They each appealed the denial of the motion to suppress to the Fourth Circuit Court of Appeals.
The issue before the court was whether, upon arresting Kipling Jones, the police possessed reasonable suspicion that there were other persons in the Jones’ residence who could pose a danger to officers, thereby justifying the protective sweep of the residence.
At the outset, the Fourth Circuit noted that in 1990, the United States Supreme Court decided Maryland v. Buie [iii] in which they held that a “protective sweep” was a constitutionally reasonable exception to the warrant requirement of the Fourth Amendment. In explaining its rationale, the Supreme Court stated:
Unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf’ [where] [a]n ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” ” [iv]
The Supreme Court, in Buie, then described two constitutionally permissible types of searches of a residence, “after and while making an arrest.” [v] The Fourth Circuit described these two types of searches as follows:
First, the authorities are entitled to search “incident to the arrest . . . as a precautionary matter and without probable cause or reasonable suspicion, . . . closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Buie, 494 U.S. at 334. Second, the officers are entitled to perform a further “protective sweep,” beyond the immediately adjoining areas, when they have “articulable facts which, taken together with the rational inferences from which those facts, 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. Such a protective sweep is circumscribed, however, extending “only to a cursory inspection of those spaces where a person may be found,” and lasting “no longer than it takes to complete the arrest and depart the premises.” Id. at 335-36. [vi]
In the Jones’ case, the government does not argue that the search was “incident to arrest.” Rather, the government characterizes the search as a “protective sweep”, which is the second type of search described above from Buie. Thus, the court had to examine the facts to determine if sufficient reasonable suspicion existed that other persons who posed a threat to the officers could have been be present in the Jones’ home when Kipling Jones was arrested.
The Jones’ assert that there was insufficient reasonable suspicion to justify the protective sweep. They argue that there was nothing amiss at their residence either time when the police were there. They also assert that there was no apparent activity at the residence that suggested other people were present. Further, they argue that they exhibited non-threatening behavior to the officers and there was no sign of a meth lab explosion as was the original reason they came to the residence.
Regarding the Jones’ arguments above, the Fourth Circuit first noted that their compliance during arrest is not relevant to whether the police had sufficient reasonable suspicion to conduct a protective sweep. The court stated:
The linchpin of the protective sweep analysis is not “the threat posed by the arrestee,[but] the safety threat posed by the house, or more properly by unseen third parties in the house.” See Buie, 494 U.S. at 336. [vii]
The Fourth Circuit then examined several facts that support the officer’s belief that a protective sweep was warranted. The court noted that (1) recent surveillance of Jones’ residence revealed that known drug users were frequently visiting the house, (2) some of these drug users were known to be armed, (3) information was received by officers that stated a fugitive was staying at the Jones’ residence, (4) there were seven vehicles parked at the residence, and (5) the Jones’ claimed nobody else was present, despite the number of vehicles. [viii]
The court then noted that there was precedent from other federal circuits, particularly the Seventh, Tenth, and Eleventh Circuits, that support the proposition that the facts above provide sufficient reasonable suspicion for the police to believe that there were other persons present who could pose a threat to the officers. [ix]
The Fourth Circuit then held:
It was not merely the number of vehicles present at the Jones residence that made the officers’ suspicions reasonable; it was the presence of the seven vehicles coupled with Officer Smith’s prior surveillance of known meth users patronizing the Jones residence. Faced with the possibility that there were other persons inside the house, there was ample reason to believe that such individuals could endanger the officers’ safety, in that the Joneses were involved in the production and distribution of meth; at least one of their patrons was known to carry a firearm; and a fugitive was reportedly staying in the residence. Such articulable facts, “taken together with the rational inferences from those facts” made by law officers, and construed in the light most favorable to the government, are more than sufficient to justify the protective sweep in this case. [x] [internal citations omitted]
Therefore, the Fourth Circuit affirmed the denial of the motion to suppress and held the protective sweep was reasonable.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 10-4442, No. 10-4698, 2012 U.S. App. LEXIS 784 (4th Cir. Decided January 13, 2012)
[ii] Id. at 2-8
[iii] 494 U.S. 325 (1990)
[iv] Jones at 15 (quoting Buie, 494 U.S. at 334))
[v] Id. at 15
[vi] Id. at 15-16
[vii] Id. at 19
[viii] Id. at 20
[ix] Id. at 20-21 (citing United States v. Tapia, 610 F.3d 505, 511 (7th Cir. 2010) (upholding protective sweep where officers had reason to believe other individuals were inside home in that, inter alia, large vehicle capable of holding several persons was parked outside); United States v. Hauk, 412 F.3d 1179, 1192 (10th Cir. 2005) (upholding protective sweep where, inter alia, surveillance showed there was extra vehicle in driveway and unidentified driver apparently entered home); United States v. Tobin, 923 F.2d 1506, 1513 (11th Cir. 1991) (upholding protective sweep where officers had reasonable belief that someone would be hiding in house because three vehicles were on scene and defendant had lied about codefendant’s presence).
[x] Id. at 21-22