On April 14, 2014, the Third Circuit Court of Appeals decided the United States v. White [i], which serves as an excellent review of the law pertaining to protective sweeps of residences incident to the arrest of an occupant.  The facts of White, taken directly from the case, are as follows:

In the early morning of April 12, 2012, Pennsylvania State Police Troopers James John Hoban, Jr. and Travis Hill were radioed from their dispatch station about a potential domestic disturbance between a father and his daughter. The dispatch supervisor stated “something to the effect of” someone “under the influence of drugs or alcohol” was “waving a loaded firearm around” and “dragging his daughter from room to room,” or may have been “barricaded inside the bathroom.” The daughter’s boyfriend had reported the incident to police, relaying information the daughter was sending him via text message. The dispatcher further advised the troopers that the father was believed to be the defendant, White, who on a prior occasion had fought with the police and resisted arrest.

Within approximately 15 minutes, Troopers Hoban and Hill arrived at the residence, which was a trailer home with a mud room attached to the front. The troopers observed two individuals looking out from behind the screen door of the mud room. With their guns drawn, the troopers ordered both individuals to come outside. The taller of the two – who turned out to be White – emerged first and walked unsteadily towards the troopers, leading them to conclude he was intoxicated or under the influence of drugs. When White was at a distance of about 20 feet from the entrance to the home, the troopers instructed him to lay face down on the ground; White complied and was handcuffed. Trooper Hill then escorted White to the police cruiser, which was parked farther away from the residence, conducted a pat down search, and found that White was not in possession of a firearm or any other weapon.

The second of the two individuals, White’s adult daughter, Samantha White, came out of the home slightly behind her father. Samantha hesitated to come all the way towards the officers, instead remaining approximately five to ten feet away from the entrance to the residence. Given her size and apparent victim status, Trooper Hoban decided there was no need to handcuff Samantha. When he asked her if anyone was in the home, she responded there was not.

Trooper Hoban decided to check for himself. As he walked into the front door of the mud room, Trooper Hoban saw two guns – a revolver and a shotgun – lying on the floor just inside the threshold, the same area in which the troopers had first seen White and Samantha upon arriving at the residence. Trooper Hoban seized the guns, carried them to the police cruiser, and placed them in the trunk. He then returned to the home and, with Samantha, walked through the rooms, finding no other person but observing several gun cases and a partly burnt marijuana cigarette, none of which he seized.

Additional troopers arrived on the scene. At some point, an officer advised White of his Miranda rights and asked whether he had any other firearms. White stated he was a gun collector, owned many firearms, and had been carrying the guns because he believed there were people trying to kill him. He also said he had shot at some animals on his property earlier that day.

Weeks later, on May 4, 2012, after obtaining a search warrant based in part on the two firearms Trooper Hoban seized from inside the mud room of the home, police executed a search of the residence and seized 91 additional firearms. [ii]

White filed a motion to suppress the guns and alleged that the officer’s initial entry into his home was unreasonable under the Fourth Amendment.  The district court denied the motion holding that the officer’s entry into the residence to seize the first two guns and the walk-through of the remainder of the residence was a reasonable search incident to arrest under Maryland v. Buie. [iii]  White pleaded guilty with the right to appeal. He then filed a timely appeal of the denial of the motion to suppress with the Third Circuit Court of Appeals.

The Third Circuit began its review of White by examining relevant case law.  Noting that the Fourth Amendment draws a firm line at the entrance to a residence, the court examined Maryland v. Buie, the lead United State Supreme Court case on this topic.  The Third Circuit then stated:

A search of a house without a warrant issued on probable cause is generally unreasonable. See Buie, 494 U.S. at 331. However, there are several exceptions to the warrant requirement. In Buie, the Supreme Court articulated two such exceptions:

We . . . hold that as an incident to the arrest the officers could, 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. Beyond that, however, we hold that 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 a danger to those on the arrest scene.

Id. at 334. Hence, Buie “prong 1” permits a warrantless search of a home “incident to an arrest” occurring in the home, provided that the search is limited to those places “immediately adjoining the place of arrest from which an attack could be immediately launched.” Buie’s“prong 2” authorizes a warrantless search of a home based on reasonable and articulable suspicion that the areas being searched may “harbor[] an individual” who poses a danger to those present at the scene of the arrest. “[R]easonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (internal quotation marks omitted). [iv] [emphasis added]

The court then noted that because White was arrested 20 feet outside of his home, Buie “prong 1,” which is how the district court upheld the search in White’s case, did not apply.  Rather, the court stated that, when the arrest takes place outside the home, the court must analyze the reasonableness of the search under the standards set forth in Buie “prong 2.”  Quoting the Third Circuit case of Sharrar v. Felsing [v], the court stated:

[W]e found that our sister circuits all agreed that “a sweep incident to an arrest occurring just outside the home must be analyzed under the second prong of the Buie analysis,” id. at 824.

We then held:

Like our sister circuits, we see no reason to impose a bright line rule limiting protective sweeps to in-home arrests, as we agree . . . that “in some circumstances, an arrest taking place just outside a home may pose an equally serious threat to the arresting officers.” [citing and quoting United States v. Colbert, 76 F.3d 773, 776 (6th Cir. 1996)] Certainly, it would be imprudent to prohibit officers who are effecting an arrest or waiting until a warrant may be obtained from ensuring their safety and minimizing the risk of gunfire or other attack coming from inside the home if they have reason to believe that dangerous individuals are inside. Therefore, in order to determine whether the protective sweep in question met the standard enunciated by the Supreme Court in Buie, we must consider whether there was an articulable basis for a protective sweep, i.e., a warrantless search, under the circumstances at that time. [vi]

Then, noting that “a sweep incident to an arrest occurring just outside the home must be analyzed under the second prong of the Buie analysis.” [vii]  Since White’s arrest took place 20 feet outside the home, the Third Circuit vacated the decision of the district court and remanded the case for a decision consistent this its opinion.  Thus, the district court must now examine the case and determine if the officers had reasonable suspicion that the home may have harbored a person that posed a danger to those present at the scene of the arrest.


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. 13-2130 (3rd Cir. 2014)

[ii] Id. at 3-6

[iii] 494 U.S. 325 (1990)

[iv] White at 9-10

[v] 128 F.3d 810 (3rd Cir. 1997)

[vi] Id. at 11-12 (quoting Sharrar, 128 F.3d at 824)

[vii] Id. at 15

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