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Criminal Practice – Search & Seizure – ‘Protective Sweep’ – Gun Seizure

U.S. v. Laudermilt (Lawyers Weekly No. 12-01-0509, 11 pp.) (Shedd, J.) No. 11-4624, May 3, 2012; USDC at Wheeling, W.Va. (Stamp, J.) 4th Cir. Click here for the full-text opinion.

Holding: Police responding to four quick 911 “domestic” calls relating to a couple they knew did not exceed defendant’s Fourth Amendment rights when, after arresting defendant and making a protective sweep to locate defendant’s 14-year-old autistic brother, they asked the brother where the reported gun was and he pointed to a rifle in a gun rack; the 4th Circuit reverses the district court order suppressing the firearm.

A protective sweep is limited to a cursory inspection of those spaces where a person may be found and should last no longer than it takes to complete the arrest and depart the premises. We believe the district court erred in granting the suppression motion.

We agree the protective sweep was justified by Maryland v. Buie, 494 U.S. 325 (1990). The officers were responding to a potentially volatile situation involving a firearm and a domestic dispute, and they personally witnessed defendant threatening his girlfriend and her family. When the officers arrested defendant, the firearm was unaccounted for and – even by defendant’s own admission – at least one other person was at home. Also, as the officers were arriving on the scene, two individuals were leaving in a vehicle, one  of whom was “slouched” over in his seat. Clearly, these articulable facts would have led a reasonably prudent officer to believe a protective sweep was warranted.

We disagree, however, with the district court’s conclusion that the sweep necessarily ended the very moment defendant’s 14-year-old autistic brother was secured. The officers’ testimony before the district court indicates a level of confusion regarding how many people were in the house that evening. This confusion is indicative of the escalating situation the officers faced: four 911 calls placed in quick succession regarding a potentially violent domestic confrontation. We do not believe the sweep had to cease the moment the brother was secured.

Even assuming the sweep should have terminated after defendant was secured, we believe the seizure of the firearm was still permissible. The brother, self-described as “freaking out” and “scared,” was in the house. It was reasonable for the officers to permit him to stay in familiar surroundings until his mother arrived home. Once the officers permitted the brother to stay in the house, it was not unreasonable for them to ask him about the firearm because is it not unreasonable to determine if the child could be safely left at home.

In a threatening domestic situation, with information that at least a special needs child was in the home, police conducted a properly circumscribed protective sweep, which yielded the discovery of a firearm as that sweep continued.

Reversed and remanded.





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