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Protective sweep invalid where entry invalid

By John Wesley Hall, Jr.

Protective sweep under Buie cannot be justified where there was already an entry in violation of Payton. United States v. Montgomery, 2008 U.S. Dist. LEXIS 84975 (M.D. Pa. October 22, 2008): Nor can the subsequent search of Montgomery's apartment be justified as a protective sweep. In Maryland v. Buie, the Supreme Court held that police may conduct a protective sweep--"a quick and limited search of premises" that is "narrowly confined to a cursory visual inspection of those places in which a person might be hiding"--incident to a lawful arrest. 494 U.S. 325, 328, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). Such a search is only permitted, however, "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...continue to full post

Full post as published by Fourth Amendment on October 25, 2008 (boomark / email).