April 1991 SEARCHES OF PREMISES INCIDENT TO ARREST By A. Louis DiPietro, J.D. Special Agent and Legal Instructor FBI Academy Quantico, Virginia All arrests, regardless of the seriousness of the crime for which they are made, pose serious risks to arresting officers. In recognition of the danger and the need to discover and seize evidence, the law has long permitted officers to make a warrantless search incident to an arrest. (1) However, an arrest inside premises where officers are in unfamiliar surroundings and on their adversary's "turf" often pose greater risks to the arresting officers than on-the-street or roadside encounters. With these considerations in mind, the U.S. Supreme Court recently expanded the scope of an incident to arrest search in the context of an in-home arrest. This article begins with a brief summary of the general requirements for searches incident to arrest and then examines the recent case of "Buie v. Maryland," (2) in which the Supreme Court expanded the scope of searches of premises incident to arrest. Such searches now include protective sweeps for persons under the following two alternative grounds: 1) Searches of immediately adjoining areas; and 2) searches of other areas based on reasonable suspicion of danger to the arresting officers. GENERAL REQUIREMENTS A lawful custodial arrest based on probable cause carries with it the legal authority to conduct a warrantless search incident to that arrest to secure weapons or means of escape and to preserve evidence. However, the constitutional validity of a search incident to arrest does not depend on whether police have any facts that the person arrested possesses weapons or evidence. A lawful custodial arrest, standing alone, establishes the authority to conduct a search incident to arrest, irrespective of whether suspects are later acquitted of the offense for which they were arrested. (3) Probable cause to arrest must exist before searching. (4) But, a search may be conducted immediately prior to the arrest as long as probable cause existed prior to the search, and the fruits of the search do not serve as part of the probable cause. (5) A search of premises incident to arrest must be conducted substantially contemporaneous with the arrest. (6) Once officers exclusively control any personal property not immediately associated with the person to be arrested, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property can no longer be justified as incident to arrest. (7) However, courts have held that arresting officers need not jeopardize their safety in order to make a contemporaneous search. In fact, officers may first secure the arrestee with handcuffs before searching incident to arrest. (8) Such searches are generally considered substantially contemporaneous if they follow immediately after an arrest. The "contemporaneous" requirement applies to searches of the area within the arrestee's immediate control and to items, such as luggage, not directly associated with the arrestee. However, it does not extend to searches of the person, clothing, or personal belongings on the arrestee's person. (9) Accordingly, courts have approved delayed incident to arrest searches of an arrestee's clothing, (10) the contents of a wallet (11) and address book, (12) but not a briefcase. (13) In "Chimel v. California," (14) the Supreme Court limited the scope of an incident to arrest search to the arrestee's person and areas within his immediate control. Courts have interpreted this ruling to include not only the arm's length radius encircling an arrestee's wingspan but also areas accessible to an arrestee at the time of arrest, regardless of actual accessibility at the time of search. (15) In that regard, the court held in "New York v. Belton" (16) that the search of a jacket located inside the passenger compartment of the car in which Belton was riding was within the arrestee's immediate control. SUPREME COURT AUTHORIZES PROTECTIVE SWEEPS The scope of a search of premises incident to arrest authorized by "Chimel" was not always adequate to afford safety to the arresting officers. Thus, the Supreme Court in "Maryland v. Buie" (17) expanded the scope of incident to arrest searches to permit arresting officers to go beyond "Chimel," which limited such searches to the person and areas within his immediate control. "Buie" expands the scope of a search of premises incident to arrest to include a warrantless protective sweep of all "immediately adjoining" areas. It also authorizes protective sweeps into "other areas" based on reasonable suspicion. Background In "Buie," two men, one of whom was wearing a red running suit, committed an armed robbery. Police obtained arrest warrants for Buie and an accomplice. Two days later, the police telephonically verified that Buie was home, and officers proceeded to his house. Once inside, they fanned out through the first and second floors; one officer shouted into the basement ordering anyone down there to come up. When a voice asked who was calling, the officer announced three times, "This is the police, show me your hands." Eventually, a pair of hands appeared around the bottom of the stairwell, and Buie emerged from the basement. He was arrested, searched, and handcuffed. Thereafter, another officer, Detective Frolich, entered the basement to determine if someone else was down there and noticed a red running suit lying in plain view on a stack of clothing. The officer seized the red running suit which, at trial, was admitted into evidence over Buie's objection. Buie did not dispute the right of police up to the point of his arrest to search anywhere in the house where he might have been found. Instead, Buie argued that Detective Frolich's entry into the basement after the point of his arrest was not constitutionally justified as incident to arrest. The Supreme Court agreed to review the case to decide the justification required before Detective Frolich could constitutionally enter the basement to see if someone else was there. (18) Supreme Court Decision The Supreme Court weighed the additional invasion of Buie's privacy in those remaining areas of his house not searched prior to his arrest against the interest of the officers in assuring themselves that Buie's house was not harboring other dangerous persons who could unexpectedly launch an attack. By noting that an ambush in a confined setting of unknown configuration is more to be feared than one in open, more familiar surroundings, the Court struck the balance in favor of permitting the arresting officers to take reasonable steps to ensure their safety after making the arrest. The Court approved the following two alternate grounds for police to conduct protective sweeps (19) of premises for persons incident to arrest: 1) An automatic right to search any area "immediately adjoining" the place of arrest; and 2) a right to conduct a protective sweep of "other areas" based on reasonable suspicion that the area to be swept harbors an individual posing a danger to those on the arrest scene. This new protective sweep authority in the context of in-home arrests, when added to the traditional search incident to arrest authority established in "Chimel," permits the scope of such searches to be broken down for analysis into four distinct areas with respect to the arrest. For illustration, these areas can be thought of as a series of concentric circles representing a bird's eye view looking down on the arrest. Two innermost circles represent searches of the person and items immediately associated with the person and the area within the arrestee's immediate control. The outermost circles represent searches of immediately "adjoining areas" and "other areas," which were approved in "Buie." IMMEDIATELY ADJOINING AREAS Justification--Lawful Custodial Arrest In "Buie," the Court specifically stated: "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." (20) "Buie" thus holds that police need no additional justification beyond the lawful custodial arrest itself to automatically sweep areas immediately adjoining the place of arrest. Scope--Limited to Persons This protective sweep authorized by "Buie" is not a full search of the premises but rather a narrowly confined cursory inspection of those places where a person might be hiding. (21) It is important to note that this scope limitation to searching for only persons is equally applicable to both sweeps of "immediately adjoining spaces," as well as to sweeps of "other areas." Since the Supreme Court did not further define "other spaces immediately adjoining the place of arrest," police must look to lower court decisions for guidance in ascertaining the precise limits to such searches. In "United States v. Hernandez," (22) a Federal district court upheld the action of two deputy U.S. marshals in opening a closet door in a living room where the defendant was arrested and seizing evidence that was in plain view in the closet. This ruling was predictable, since "Buie" specifically permitted the arresting officers to look in closets immediately adjoining the place of arrest. A more difficult question that police and lower courts will be forced to address concerns what "other spaces immediately adjoining" the place of arrest qualify for suspicionless sweeps under the expanded Buie rationale." The area that may be subjected to these suspicionless protective sweeps appears to exceed "Chimel's" area of immediate control limitation. However, until a body of case law defines the precise parameters for such searches, a workable rule of thumb for police to follow is the "one threshold" rule. That rule permits arresting officers to cross one threshold contiguous with and leading from the room where the arrest occurred. In "People v. Febus," (23) a New York court approved a police officer's pushing open a slightly ajar door to an apartment after the officer had arrested the youth outside the apartment. The court believed the area on the other side of the door was a space immediately adjoining the place of arrest from which an attack could immediately be launched. The court held that an officer should not have to close his eyes to reality and await the glint of steel before acting to protect himself or others. PROTECTIVE SWEEPS IN "OTHER AREAS" Reasonable Suspicion Required Police may conduct a sweep in "other areas" of premises beyond those areas "immediately adjoining" the place of arrest if they have reasonable suspicion to fear for their safety. In order for the sweep to proceed beyond spaces immediately adjoining the arrest, the Supreme Court in "Buie" held: "[T]here 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." (24) The reasonable suspicion needed to justify a protective sweep of "other areas" of premises incident to arrest requires police to have a reasonable individualized suspicion. The burden of proving the legitimacy of such warrantless searches is on the government, and police do not have automatic authority to conduct them. The Basis for Fear Must be Articulated In "United States v. Akrawi," (25) the U.S. Court of Appeals for the Sixth Circuit held that government agents who conducted a lengthy protective sweep of premises following an arrest could not point to any specific reason why they believed another person dangerous to the agents was in the house at the time of the arrest. The court suppressed the evidence found during the sweep because the government failed to meet its burden to articulate a particular reason to support the agents' belief that a dangerous individual was present. Likewise in "Hayes v. State," (26) two officers attempting to justify a sweep following an arrest testified that there was a possibility that a dangerous person with a violent past might be there, but the officers could point to no facts to support their belief. The Supreme Court of Nevada held that while the officers need not have probable cause to believe a dangerous third person is present, the mere possibility of such presence is not enough. The court reasoned that if any possibility of danger were sufficient to create a reasonable belief of a danger, the police would have carte blanche power to conduct sweeps of citizens' homes incident to virtually any arrest and that by means of post-hoc rationalizations, the police could justify virtually any sweep search. Another issue addressed by the "Hayes" court is important for all law enforcement officers. When asked why it would not have been safer simply to withdraw from the residence, a detective responded that sweep searches of residences incident to arrest were "standard operating procedure." The court found such blanket sweep search procedures patently unconstitutional and ruled that such searches may not be conducted automatically or as a matter of routine. (27) Similarly, in "United States v. Castillo," (28) an officer testified that it was standard procedure to do a protective sweep of the premises. In rejecting that statement as a "flip remark," the U.S. Court of Appeals for the Ninth Circuit observed that the fourth amendment was adopted for the very purpose of protecting citizens from "routine" government intrusions into the home and expressed dismay that any trained police officer in the United States would believe otherwise. Notwithstanding the officer's erroneous belief that he was entitled to make protective sweeps as a matter of routine, the court concluded that the arresting officers did have specific facts to reasonably believe that other persons were on the premises to justify a protective sweep. Sweep Must Terminate When Fear Dispelled The Supreme Court in "Buie" noted that the protective sweep aimed at protecting the arresting officers may last no longer than necessary to dispel the reasonable suspicion of danger, complete the arrest, and depart the premises. (29) Once police determine that no person who poses a danger to them is present, their authority to sweep the premises ends, and they must, barring other exigencies, leave the residence. (30) In that regard, the court in "United States v. Akrawi" (31) ruled that agents who remained in the house for 45 minutes following an arrest did not have any factual justification to support a casual relation between the sweep and their claimed necessity to protect themselves. CONCLUSION Most challenges to an officer's search incident to an arrest in the home will arise in the context of a motion to suppress evidence found during the search. As in all warrantless searches, the government bears the burden of proving that the search falls within one of the few specifically established and well-delineated exceptions to the warrant requirement. (32) Where the initial intrusion into areas of a home gives officers access to evidence in plain view, such evidence can be seized if its incriminating nature is immediately apparent. (33) To insure the admissibility of evidence seized during an in-home arrest, law enforcement officers should document and be prepared to articulate the factual justification for any protective sweep conducted incident to an arrest. Finally, on remand from the Supreme Court, the Court of Appeals of Maryland ruled in the "Buie" case that Detective Frolich's protective sweep of Buie's basement was justified by a reasonable belief that Buie's accomplice might have been hiding there and might have had the gun used in the robbery. (34) FOOTNOTES (1) United States v. Robinson, 414 U.S. 218 (1973). (2) 110 S.Ct. 1093 (1990). (3) Hill v. California, 401 U.S. 797 (1971). (4) Sibron v. New York, 392 U.S. 40 (1968). (5) Rawlings v. Kentucky, 448 U.S. 98 (1980). See also, United States v. Donaldson, 793 F.2d 498 (2d Cir. 1986), cert. denied, 479 U.S. 1056 (1987); United States v. Hernandez, 825 F.2d 846 (5th Cir. 1987), cert. denied, 484 U.S. 1068 (1988). (6) Preston v. United States, 376 U.S. 364 (1964). (7) United States v. Chadwick, 433 U.S. 1 (1977). (8) See, e.g., United States v. Bennett, 908 F.2d 189 (7th Cir. 1990), where the court of appeals approved a warrantless search of a motel room immediately following the arrest of its occupants, even though both occupants were handcuffed at the time of the search. The officers were not required to be "punctilious" in their judgments under the quick developing circumstances. (9) United States v. Edwards, 415 U.S. 800 (1974). (10) United States v. Oaxaca, 569 F.2d 518 (9th Cir. 1978) (shoes taken from pretrial detainee 6 weeks after the arrest). (11) United States v. Passaro, 624 F.2d 938 (9th Cir. 1980) (seizure of arrestee's wallet upon arrival at initial place of detention, search of its contents, and photocopying of documents contained therein, even though evidence unrelated to crime for which arrested). (12) United States v. Holtzman, 871 F.2d 1496 (9th Cir. 1989). (13) United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978). (14) 395 U.S. 752 (1969). In Chimel, the court defined the area of "immediate control" to mean the area into which an arrestee might reach in order to grab a weapon or destroy evidence. (15) Wisconsin v. Murdock, 455 N.W.2d 618 (Wis. 1990). Three arrestees were handcuffed in back, face down on the floor offering no resistance while police searched. In approving the search, the court held that the scope of search is not dependent upon the level of control the arresting officers have over the arrestee or the arrestee's actual ability to gain access to the area searched, because an officer is not required to weigh the arrestee's probability of success in obtaining a weapon or destructible evidence hidden within his or her immediate control. See also, United States v. Queen, 847 F.2d 346 (7th Cir. 1988). (16) 453 U.S. 454 (1981). (17) Supra note 2. (18) If Detective Frolich's entry into the basement was lawful, then the seizure of the red running suit, which was in plain view and for which the officer had probable cause to believe was evidence of a crime, was also lawful. Horton v. California, 110 S.Ct. 2301 (1990). (19) In Buie, the Court defined a "protective sweep" as a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others. 110 S.Ct. at 1094. (20) Id. at 1098 (emphasis added). (21) Id. at 1099.22 738 F.Supp 779 (S.D.N.Y. 1990). (22) 738 F.Supp 779 (S.D.N.Y. 1990). (23) 556 N.Y.S. 2d 1000 (N.Y. Sup.Ct.), appeal granted, 562 N.E. 2d 885 (1990). (24) 110 S.Ct. at 1098. (25) 920 F.2d 418 (6th Cir. 1990). (26) 797 P.2d 962 (Nev. 1990). (27) Id. at 967. (28) 866 F.2d 1071 (9th Cir. 1988). (29) 110 S.Ct. at 1099. (30) United States v. Oguns, 1990 WL 205208 (2d Cir. 1990). (31) Supra note 25. (32) Katz v. United States, 389 U.S. 347 (1967). (33) Supra note 18. (34) Buie v. Maryland, 586 A.2d 167 (Court of Appeals of Maryland 1990). _______________ Law enforcement officers of other than Federal jurisdiction who are interested in this article should consult their legal adviser. Some police procedures ruled permissible under Federal constitutional law are of questionable legality under State law or are not permitted at all.