U.S. v. Keefauver, 74 M.J. 230

First Principles: Constitutional Matters: Search and Seizure

1. an exception to the Fourth Amendment warrant requirement was created in Maryland v. Buie, 494 US 325 (1990), for a protective sweep, which is a quick and limited search of premises, incident to arrest and conducted to protect the safety of police officers or others; there are two types of protective sweeps; in the first type of sweep, which may be conducted as a precautionary matter and without probable cause or reasonable suspicion, agents may search only closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched during or after an arrest; the second, more extensive exception permits agents to make a protective sweep of areas beyond those immediately adjoining the place of arrest where articulable facts 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; such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found; the reasoning behind Buie is that in-home arrests create special dangers by placing agents on an adversary’s turf and exposing them to the unique threat of an ambush in a confined setting of unknown configuration; a protective sweep occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him
2. agents entering a home lawfully for an objective other than arrest may make a protective sweep so long as the Maryland v. Buie, 494 US 325 (1990), criteria are met; the same concerns underlying officer safety in the context of an in-home arrest may pertain in equal measure when agents lawfully enter a home for some other purpose; as with an arrest, executing a search warrant in a home can present the dangers upon which the rationale of Buie was based, as it, too, places agents on the occupant’s turf, at a disadvantage, and is an adjunct to a serious step, because probable cause to conduct a search for evidence has been established and may result in arrest and prosecution
3. under Maryland v. Buie, 494 US 325 (1990), agents entering a home lawfully may be entitled to make the second, more extensive type of protective sweep to ensure their safety; this extension of Buie to non-arrest situations should not be mistaken for a liberalization of the criteria required before such a sweep is constitutionally permissible; agents may conduct a protective sweep incident to a lawful entry under Buie so long as the sweep does not last longer than is necessary to dispel the reasonable suspicion of danger
4. the circumstances under which facts warrant an extensive protective sweep under Maryland v. Buie, 494 US 325 (1990), are specific; Buie notes that this broader protective sweep exception applies only if the searching officer possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others; this belief is tested against an objective standard, requiring also that articulable facts 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; it is eminently clear both that a protective sweep of a home is decidedly not automatic; a protective sweep of a home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others
5. while an officer’s mistake of law may sometimes bear on a potential Fourth Amendment violation, the Fourth Amendment tolerates only reasonable mistakes, and those mistakes must be objectively reasonable
6. in this case, the military judge and CCA erred in upholding a protective sweep of a home under Maryland v. Buie, 494 US 325 (1990), where agents entered a home lawfully pursuant to a search authorization to make a controlled delivery; the agents were not entitled to make the second, more extensive type of protective sweep to ensure their safety where neither of the two criteria that Buie established were satisfied by the facts of this case; a protective sweep of the home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others; in this case, the government did not attempt to prove that the searching officer held either such belief, nor did it present facts and inferences that would objectively support either such belief
7. the presence or suspected presence of drugs without more does not justify an extensive protective sweep under Maryland v. Buie, 494 US 325 (1990), nor does the bare conjecture and bald assertion that guns follow drugs, without additional facts; to suggest that the mere presence of drugs justifies a protective sweep of the entire home would effectively eviscerate the exception to the Fourth Amendment contemplated by Buie, which was based entirely on the danger to agents

Core Criminal Law Subjects: Evidence: Search and Seizure › Generally

1. an exception to the Fourth Amendment warrant requirement was created in Maryland v. Buie, 494 US 325 (1990) for a protective sweep, which is a quick and limited search of premises, incident to arrest and conducted to protect the safety of police officers or others; there are two types of protective sweeps; in the first type of sweep, which may be conducted as a precautionary matter and without probable cause or reasonable suspicion, agents may search only closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched during or after an arrest; the second, more extensive exception permits agents to make a protective sweep of areas beyond those immediately adjoining the place of arrest where articulable facts 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; such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found; the reasoning behind Buie is that in-home arrests create special dangers by placing agents on an adversary’s turf and exposing them to the unique threat of an ambush in a confined setting of unknown configuration; a protective sweep occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him
2. agents entering a home lawfully for an objective other than arrest may make a protective sweep so long as the Maryland v. Buie, 494 US 325 (1990), criteria are met; the same concerns underlying officer safety in the context of an in-home arrest may pertain in equal measure when agents lawfully enter a home for some other purpose; as with an arrest, executing a search warrant in a home can present the dangers upon which the rationale of Buie was based, as it, too, places agents on the occupant’s turf, at a disadvantage, and is an adjunct to a serious step, because probable cause to conduct a search for evidence has been established and may result in arrest and prosecution
3. under Maryland v. Buie, 494 US 325 (1990), agents entering a home lawfully may be entitled to make the second, more extensive type of protective sweep to ensure their safety; this extension of Buie to non-arrest situations should not be mistaken for a liberalization of the criteria required before such a sweep is constitutionally permissible; agents may conduct a protective sweep incident to a lawful entry under Buie so long as the sweep does not last longer than is necessary to dispel the reasonable suspicion of danger
4. the circumstances under which facts warrant an extensive protective sweep under Maryland v. Buie, 494 US 325 (1990), are specific; Buie notes that this broader protective sweep exception applies only if the searching officer possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others; this belief is tested against an objective standard, requiring also that articulable facts 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; it is eminently clear both that a protective sweep of a home is decidedly not automatic; a protective sweep of a home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others
5. while an officer’s mistake of law may sometimes bear on a potential Fourth Amendment violation, the Fourth Amendment tolerates only reasonable mistakes, and those mistakes must be objectively reasonable
6. in this case, the military judge and CCA erred in upholding a protective sweep of a home under Maryland v. Buie, 494 US 325 (1990), where agents entered a home lawfully pursuant to a search authorization to make a controlled delivery; the agents were not entitled to make the second, more extensive type of protective sweep to ensure their safety where neither of the two criteria that Buie established were satisfied by the facts of this case; a protective sweep of the home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others; in this case, the government did not attempt to prove that the searching officer held either such belief, nor did it present facts and inferences that would objectively support either such belief
7. the presence or suspected presence of drugs without more does not justify an extensive protective sweep under Maryland v. Buie, 494 US 325 (1990), nor does the bare conjecture and bald assertion that guns follow drugs, without additional facts; to suggest that the mere presence of drugs justifies a protective sweep of the entire home would effectively eviscerate the exception to the Fourth Amendment contemplated by Buie, which was based entirely on the danger to agents

Core Criminal Law Subjects: Evidence: Search and Seizure › Apprehension/arrest

1. an exception to the Fourth Amendment warrant requirement was created in Maryland v. Buie, 494 US 325 (1990) for a protective sweep, which is a quick and limited search of premises, incident to arrest and conducted to protect the safety of police officers or others; there are two types of protective sweeps; in the first type of sweep, which may be conducted as a precautionary matter and without probable cause or reasonable suspicion, agents may search only closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched during or after an arrest; the second, more extensive exception permits agents to make a protective sweep of areas beyond those immediately adjoining the place of arrest where articulable facts 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; such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found; the reasoning behind Buie is that in-home arrests create special dangers by placing agents on an adversary’s turf and exposing them to the unique threat of an ambush in a confined setting of unknown configuration; a protective sweep occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him
2. the circumstances under which facts warrant an extensive protective sweep under Maryland v. Buie, 494 US 325 (1990), are specific; Buie notes that this broader protective sweep exception applies only if the searching officer possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others; this belief is tested against an objective standard, requiring also that articulable facts 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; it is eminently clear both that a protective sweep of a home is decidedly not automatic; a protective sweep of a home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others

Core Criminal Law Subjects: Evidence: Search and Seizure › Inevitable discovery

1. the inevitable discovery doctrine cannot rescue evidence obtained via an unlawful search simply because probable cause existed to obtain a warrant when the government presents no evidence that the police would have obtained a warrant

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. when reviewing a decision of a CCA on a military judge’s ruling, the CAAF typically pierces through that intermediate level and examines the military judge’s ruling, and then decides whether the CCA was right or wrong in its examination of the military judge's ruling

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. when reviewing a decision of a CCA on a military judge’s ruling, the CAAF typically pierces through that intermediate level and examines the military judge’s ruling, and then decides whether the CCA was right or wrong in its examination of the military judge's ruling
2. an appellate court reviews a military judge’s decision to suppress evidence for an abuse of discretion; factfinding is reviewed under the clearly erroneous standard while conclusions of law are reviewed de novo; evidence is considered in the light most favorable to the prevailing party
3. whether facts in toto justify a protective sweep is a question of law