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Arrest at threshold leads to valid protective sweep

It is proper for an officer to conduct a cursory inspection of adjoining spaces without probable cause or reasonable suspicion

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This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

United States v. Garges, 2022 WL 3350271 (8th Cir. 2022)

Officers received a tip that Jason Byers, wanted on a felony arrest warrant, was staying with Angela Garges at a local motel; the officers proceeded to the hotel and knocked on the room door.

Garges answered the door and affirmed that Byers was in the room. The officers told Garges to come out of the room and an officer escorted her down the hall and around a corner. Officers then commanded Byers to come out of the room. He did. Officers handcuffed Byers “in the doorway” or immediately adjacent to the threshold.

The officers asked Garges whether there were other people in the hotel room. She said there was a baby inside the room, but that the baby did not belong to her or Byers and she only knew the baby’s first name. The officers went into the room to conduct a protective sweep, noting the drug paraphernalia inside, and saw a 10-month-old baby.

The officers arrested Garges for drug possession and child endangerment. She admitted methamphetamine was located in a black bag in the hotel room. Police obtained a search warrant for the room and for Garges’ cell phone.

Garges claimed there was no legal justification for the protective sweep of the hotel room and asked the court to suppress the evidence found in the room. The trial court denied her motion and she appealed.

Officers making an arrest based on a warrant may conduct a limited protective sweep of the premises to discover persons who might present a danger to the officers if there is a reasonable belief the premises conceal such a person (Maryland v. Buie, 494 U.S. 325 (1990)). There is no general right to conduct a protective sweep; there must be specific, articulable facts that persons who present a danger to officers may be hiding (United States v. Cunningham, 133 F.3d 1070 (8th Cir.), cert. denied, 523 U.S. 1131 (1998)). This rule applies even if the sweep would exceed the scope of the search warrant or area that may be searched incident to arrest (United States v. Cavely, 318 F.3d 987 (10th Cir. 2003)).

The appellate court upheld the officers’ protective sweep of the motel room, explaining “the animating principle of Buie is that arresting officers may take reasonable steps to protect themselves from an unexpected attack.” At the point that Byers came to the door and was arrested, at least one officer lawfully entered the motel room under the authority of the arrest warrant and held the door open to assist with the arrest. The court opined that at least that officer was vulnerable to attack from spaces immediately adjoining the entryway. Thus, it was proper for the officer to conduct a cursory inspection of adjoining spaces without probable cause or reasonable suspicion. The court held the officers observed illegal drug paraphernalia in plain view during a lawful protective sweep and affirmed Garges’ conviction.

Read more Ken Wallentine case reviews here.

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 four 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.