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Protective sweeps

It's funny.  I've spent the last several years proclaiming that the 8th District is the most 4th-Amendment friendly court in the state.  I've also mentioned that while the 2nd District consistently turns out some of the best appellate opinions in the state, it's weak on search and seizure issues.  So what happens?  One of the judges from the 8th sits in the 2nd by assignment, and provides the deciding vote (and writes the opinion) in a case upholding a protective sweep.  That case, State v. Young, and the 6th 9th District's decision in State v. Milton, were two on that subject last week.

Milton was the easier one, at least on the surface.  Two of Copley's finest -- Copley being a suburb outside of Akron -- were sitting in the parking lot of a Motel Six running license plates, probably because police in a suburb outside of Akron have nothing better to do than sit in the parking lot of a Motel Six running license plates.  One of the cars belonged to Milton, who had an active misdemeanor warrant.  After confirming with the hotel staff that Milton was staying there, the officers went to his room, advised him of the warrant, and arrested and handcuffed him just inside the doorway.  There was a woman sitting on the bed, so one of the officers walked over to the bathroom to make sure no one else was there.  No one was, but the officer spotted a big box of matches, then noticed some other items in the room which were normally used to produce meth.

The judge threw out the search, but the 6th reversed.  The right of the police to conduct a protective sweep was recognized in Maryland v. Buie, in which the Court, impelled by thoughts that police arresting an individual in a home might be ambushed by other occupants, gave the cops the authority to conduct a "“quick and limited search of the premises, incident to an arrest and conducted to protect the safety of police officers or others."  The police in such a situation have the right to "look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched," and can conduct a search beyond that if they have reason to believe that there's anyone else in the house who poses a danger.  Despite the shaky factual background -- maybe I'll start giving out a Bullshit Misdemeanor Arrest of the Week Award -- the 6th is on solid legal grounds:  Buie applies to hotel rooms, too, and the bathroom was certainly an "immediate adjoining" place.

Young also involved a reversal of a judge's decision granting a motion to suppress, but the facts aren't nearly as clear-cut.  The police received a "family trouble" complaint at 261 Harbine, involving a Chris Fonecchio.  When they arrived, the complainant, Fontecchio's mother, said he'd gone to the neighbor's, an address which the officer testified "has been the source of multiple drug complaints."  The cops went there and knocked on the door; no one answered, but they heard movement inside.  One officer peaked through the window and saw someone open a dresser drawer, grab a gun, and put it in the waistband of his pants.  Several minutes later, the same male answered the back door.  He was ordered to the ground, but a search of him failed to turn up the handgun.  It wasn't among the people in the living room, either, so the cops decided to search the upstairs and basement, even though they hadn't seen or heard anyone up there.  As in Milton, the search failed to reveal the presence of anyone, but it did turn up a bag of drugs lying on a nightstand.

The first problem the State has to overcome is that, unlike Milton and other cases involving protective sweeps, there was no arrest here.  The majority opinion shrugs that off, noting that the officers had a "reasonable belief that criminal activity had occurred or was about to occur in the residence," and that "any distinction between a 'detention' and a formal arrest is negligible."  The court's on fairly solid ground there.  Buie springs from the idea that unknown confederates might try to foil an arrest of their compatriot, and those same confederates might try to foil a detention, or a further investigation of the premises.  There's plenty of case law to support that view.

But this points to the major shortcoming in Young.  What exactly is the criminal activity?  The police were there responding to a noise complaint that had actually happened elsewhere.  (It turns out that Finecchio wasn't even in the house the police searched.)  As the dissent points out, there's nothing illegal about carrying a gun, even concealed, in your own house. 

That's not to suggest that the outcome is wrong.  From the police perspective, what they did is understandable:  they're going to a house where they've had complaints of drug activity, they see somebody putting a gun in his waistband, when that person comes to the door, he doesn't have the gun, and neither does anybody else on the first floor.  If I'm a cop, I'm not sure I'm going to say, "Well, there's a gun that's unaccounted for.  We're out of here."

But the 4th Amendment wasn't intended to be a police procedural manual, it was intended to protect liberty and privacy interests.  There is no area that is more deserving of that protection than the home.  (In fact, one might argue that that's one of the last places where the 4th Amendment isn't honored mainly in the breach.)  The law is clear that police can enter the home without a warrant only under exigent circumstances; even probable cause alone will not suffice.  What you have here is Young being detained on the porch, the police then entering the house without a warrant, and then searching the entire house, all without any actual basis for believing that any crime had occurred.  It's a bit of a close call, but I don't think the result is consistent with the exalted place a private home holds in the scheme of search and seizure law.


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