Protective Sweep Went Too Far

by | January 31, 2018

United States v. Bagley, 877 F.3d 1151 (10th Cir. 2017)

Marshals had an arrest warrant for Stephen Bagley for violating the terms of his supervised release. These same marshals also obtained a search warrant for a house, authorizing them only to enter, search for and arrest Bagley. Though Bagley didn’t initially answer the door, he eventually surrendered, and was arrested and handcuffed near the front door.

The marshals then made a protective sweep of the entire house. During the sweep, they found two rounds of ammunition and some marijuana. Based on the discovery, and Bagley’s status as a convicted felon, the marshals obtained a second search warrant. The second search warrant stated a broader scope, allowing the marshals to search for guns, ammunition and illegal drugs. During the second warrant execution, the marshals found a gun.

Bagley claimed that the protective sweep after his arrest was illegal. Therefore, he asserted, the second search warrant was based on illegally discovered evidence. Authorities executing a warrant may conduct a limited protective sweep of the premises to look in “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched,” and a protective sweep of other parts of the building is allowed only if there is a reasonable belief that the premises conceal a person who poses a threat (Maryland v. Buie, 494 U.S. 325 (1990)). There is no general right to conduct a protective sweep; officers must present specific, articulable facts that there may be persons hiding who present a danger (United States v. Cunningham, 133 F.3d 1070 (8th Cir.), cert. denied, 523 U.S. 1131 (1998)).

The appellate court agreed with Bagley that the initial protective sweep was unlawful; Bagley was already under arrest and handcuffed. At least one wall separated him from the bedroom where the two bullets and the marijuana were seen. The court observed that the marshals’ uncertainty or inability to know whether anyone else was in the home could not “constitute the specific, articulable facts required by Buie if officers lack any information about whether someone remains inside a house, they do not have the specific, articulable facts required for a protective sweep beyond the adjacent areas.” Thus, the second warrant was based on an illegal search and the evidence was not admissible.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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