A Protective Sweep is an Exception to the Warrant Rule.
Generally speaking, law enforcement officers cannot enter your home to conduct a search without a warrant. Such searches are per se unreasonable, unless there is an applicable exception. Over the decades, the Supreme Court of the United States has carved out a number of exceptions to the warrantless search rule. One such exception is the “protective sweep.”
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.” State v. Grossi, 72 P.3d 686, 689 (UT App. 2003). In order for a police officer to be able to conduct a justifiable protective sweep, he must have a reasonable belief based on evidence that there is an individual or individuals present in the home or on the premises that may pose a danger to the officers.
What Evidence Justifies This Type of Search?
You can imagine that anytime law enforcement is called to a home based on allegations of violence, possession of controlled substances, or other crimes that the officers may have in the back of their minds that there exists a possibility of danger to themselves and others. The “mere possibility” that there are other individuals in the home is not sufficient to justify a warrantless search. Law enforcement does not have to have “probable cause” to conduct a protective sweep but they must have “specific and articulable facts” supporting their conclusion that the premises harbors individuals who may pose a danger to the officers.
In our experience, more often than not, police officers don’t understand when they can lawfully conduct a protective sweep. Most officers we have questioned believe that the “mere possibility” that they could be in danger is enough to justify a warrantless search. This is understandable considering police officers continually put themselves in harms way in enforcing the law and naturally they would be anxious anytime they are called to a home where there have been reports of violence, but the law is clear that they cannot conduct such a search merely on their own fears and they must have real facts which support that there may be someone inside who poses a danger to them.
If your case involves a protective sweep it is important that you have an experience Utah criminal defense attorney take a look at your case to see if law enforcement acted properly. If you’d like to talk to us over the phone at no cost to you, give us a call at 801-413-1753.