http://www.ca5.uscourts.gov/opinions/pub/02/02-30629-CV0.wpd.pdf
Press reports overstate it... essentially cops went to question a
convicted felon over some threats he had allegedly made against a
judge. His roommate let them in voluntarily (but didn't have
authority to consent to search of his bedroom). Arguing that they had
to protect themselves against risk he was in bedroom or closet
waiting to ambush them, they searched and found rifles in the closet.
He was charged with felon in possession. Court says the "protective
search" was okay, even tho they weren't planning on arresting him,
just questioning him.
In theory, not a very dramatic holding, and hardly the abolition of
the warrant requirement that the news accounts suggest. My worry is
that in practice in most courts the only time you win a motion to
suppress (and thus give at least a tiny disincentive to unreasonable
search) is when police violate a bright line test. No Miranda
warnings, etc. This turns the (mostly) bright line test of you need a
warrant to search a residence (with some exceptions) into something
with a lot of grey areas. And in practice would be apt to become "so
long as the police get thru the door legally, as by consent, they can
search anytime they can articulate a reason for safety concerns" --
which is almost always, just as you can almost always articulate a
reason for a vehicle stop. Driver seemed upset when he saw you ... or
tried to act unconcerned, even more suspicious. He was on a highway
which is a drug smuggling route (as every one in the state is). He
had another car near him, and smugglers often travel in pairs. When
he was pulled over, the other car kept going, presumably trying to
decoy the officers away (or perhaps because the other car had no
connection at all with him). I know of a stop, upheld on appeal, on
just about those facts.
So it might just in practice boil down to "if you can get into the
house legally, and are there for any LE related reason (and what
other reason would there be) you can do a search unless it's really
beyond all reason. And maybe even then.
I agree the press overplayed the story, but I think the holding is still somewhat dramatic, even in theory. It's another example of an exception swallowing the rule in Fourth Amendment law.
Unless I'm wrong, the "protective sweep" doctrine developed to answer the question of how much searching cops can do when they have authority to enter a private area from an arrest warrant or other valid arrest attempt. The doctrine allows cops to do a quick search for their safety in areas their power to arrest gives them authority to enter.
The Fifth Circuit has used a doctrine explaining how much searching cops can do in private areas where they have authority to enter to somehow give the cops authority to enter private areas they otherwise could not. That's a pretty dramatic leap, even in theory.
Getting closer to the topic of this list, I found one firearms question from the case that someone familiar with law enforcement firearms procedure maybe can explain. The cops justified the "protective sweep" of the defendant's bedroom for their safety, but did not in any way secure the rifles they found in the closet during the search. Is just leaving the rifles in the closet consistent with law enforcement procedures concerning the disposition of firearms found when cops are concerned for their safety?
Allen
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