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In Colorado The Police Entered My House In A Domestic Violence Case Without A Search Warrant – The Protective Sweep

By H. Michael Steinberg Colorado Criminal Defense Lawyer – Email The Author

In Colorado The Police Entered My House In A Domestic Violence Case Without A Search Warrant – The Protective Sweep – The scenario is all too common. The police receive a complaint of domestic violence from the alleged victim, a friend, a neighbor and they respond to the scene. When they arrive the alleged perpetrator and the victim are outside of the home arguing – both are waiting for the police to arrive.

The police enter the home – see drugs or other contraband in plain view – and charge the parties with numerous additional crimes.

The Colorado Protective Sweep Exception To The Search Warrant Requirement

The Question: Can the police enter the home without a warrant in the guise of conducting a protective sweep?

The Analysis: In a recent case (2014) decided by the Colorado Court of Appeals this was exactly the scenario. The police were dispatched to a defendant’s home to investigate “a domestic violence situation” involving “a man with a gun.” The accused’s wife told the police that the defendant had multiple rifles and shotguns inside the house. The defendant was then arrested outside his home and the police entered the house without a search warrant and conducted a protective sweep of the home.

The Colorado Court of Appeals held that the protective sweep in this case was NOT justified because the officers did not have an articulable reason to suspect that there was a person inside the home who actually posed a danger to those present at the arrest scene.

The Rule: A warrantless entry into a person’s home is not justified under the protective sweep doctrine if there is not an objectively reasonable threat to officer safety.

What Is The Colorado Protective Sweep Doctrine?

Police are justified in conducting a “protective sweep” of a residence incident to a lawful arrest if they have an articulable suspicion that the area to be swept harbors a person posing a danger to those present at the arrest scene.

But the “protective sweep” rule has limits! The limits placed on the protective sweep rule arise out of the very foundations of the 4^th Amendment’s prohibition against illegal searches and seizures.

In Colorado The Police Entered My House In A Domestic Violence Case Without A Search Warrant – The Protective Sweep – The Fourth Amendment’s Protections – Matter

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution proscribe all unreasonable searches and seizures. Searches and seizures inside a home without a warrant are presumptively unreasonable unless justified by one of the well-established exceptions to the Warrant Clause of the Fourth Amendment.

A warrantless entry and arrest of a suspect in his home is illegal unless the prosecution establishes the existence of BOTH probable cause AND exigent circumstances.

In analyzing a case in which there was a possible illegal protective sweep search of a home by the police – it first depends whether the police were already legally inside the home or not.

Protective Sweep Starting From INSIDE The Home

If the police have made a legal entry into a home to make an arrest, they are permitted to conduct a “protective sweep” of the area immediately around the arrestee, and the path, walk or hallways directly to and from him and the entrance to the residence. The purpose of a protective sweep in this situation is to ensure the security of law enforcement officers and the protective sweep under these circumstances is limited to a cursory inspection of places where a person may hide, and last no longer than is necessary to dispel the reasonable suspicion of danger.

BUT – if, under these circumstances, they want to conduct a “full protective sweep” of an entire house, this may be done only when there are articulable facts that, together with the rational inferences an officer could draw from them, would warrant “a reasonably prudent police officer” in believing that there reasonably may be someone else in the house who poses a danger to the officers.

If a full sweep is made, officers must be prepared to justify the reasons for it.

Protective Sweep Starting From OUTSIDE The Home

What Is The Standard To Be Applied To Justify A Protective Sweep? – Analysis:

A warrantless search or seizure is unreasonable and thereby unconstitutional unless justified by an established exception to the Warrant Clause of the Fourth Amendment.

Exigent circumstances based on the need for a protective sweep that necessitate immediate police action are one such exception.

There are THREE situations in which exigent circumstances may justify a warrantless search:

(1) the police are engaged in a “hot pursuit” of a fleeing suspect;

(2) there is a risk of immediate destruction of evidence; or

(3) there is a colorable claim of emergency threatening the life or safety of another.

The scope of the permissible intrusion is determined by the exigency justifying the initiation of the warrantless entry.

Colorado Plain View and Protective Sweep Doctrines

If the police can justify entry into a home under any one or more of these exceptions to the search warrant requirement – that is the initial police entry into the apartment is lawful – any contraband such as guns, drugs, or drug paraphernalia seen by police and in plain view once inside can be properly seized pursuant to the plain view doctrine.

Again – before the police may conduct a protective sweep, they must have an “articulable suspicion” that the area to be swept harbors a person posing a danger to those present at the arrest scene. But they CANNOT create their own exigency that is used to justify their warrantless entry.

A Troubling Issue – Entry To Make An Arrest Without An Arrest Warrant – The Dorman Factors – Exigent Circumstances Analysis

Without an arrest warrant – the police are not permitted to enter a suspect’s home. Here the Colorado courts have added some meat to the bones in assisting the lower courts to analyze whether an exigent circumstances truly fits within the exceptions to the warrant requirement.

There are a set of “factors’ that are considered when determining whether exigent circumstances are truly present.

In determining whether exigent circumstances exist:

(1) whether a grave offense is involved, particularly a crime of violence;

(2) whether the suspect is reasonably believed to be armed;

(3) whether there exists a clear showing of probable cause to believe that the suspect committed the crime;

(4) whether there is a strong reason to believe the suspect is in the premises being entered;

(5) the likelihood that the suspect will escape if not swiftly apprehended;

(6) whether the entry is made peaceably;,

(7) whether the entry is made at night is an additional consideration.

If there exists a substantial safety risk to both police and the occupants of the apartment that justified police entry to arrest and the exigency does not arise as a result of a “planned confrontation” initiated by the police, the police may be able to justify their warrantless entry.

Other Fourth Amendment Warrant issues are addressed in another article I have written. To understand ALL manner of warrants in Colorado -please follow this LINK

In Colorado The Police Entered My House In A Domestic Violence Case Without A Search Warrant – The Protective Sweep

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.

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