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"Police cannot use the unsubstantiated fear a residence might be occupied by someone dangerous to search it without a warrant" - a lame excuse to flush the 4th Amendment down the toilet.

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Arizona high court sets new rules for police's 'protective sweeps'

Posted: Thursday, May 19, 2011 2:35 pm

By Howard Fischer, Capitol Media Services East Valley Tribune

Police cannot use the unsubstantiated fear a residence might be occupied by someone dangerous to search it without a warrant, the Arizona Supreme Court ruled Thursday.

In the first ruling of its kind in the state, the justices said police had no legitimate reason to enter the apartment of Laquinn A. Fisher. That means the duffel bags of marijuana they found there cannot be used as evidence against him to sustain a drug conviction.

The ruling now sets the rules police need to obey in the future in what they call “protective sweeps.’’

In 2006, Mesa police responded to a report of an assault. The victim, bleeding from a cut on his head, told officers he had been pistol-whipped by a man known as “Taz.’’

He described the victim and directed police to the apartment complex where that person lived.

When police knocked at the door, Fisher and two others came out. Fisher, whose appearance matched the description given by the victim, identified himself as T.A.

Despite having this information, officers decided to do further investigation because the gun allegedly used in the assault was still “unaccounted for.’’ Then, without asking whether anyone was still inside, police entered the apartment to see who else was there.

Inside, they smelled marijuana and observed the duffels.

A trial judge and the court of appeals upheld the search as a legal “protective sweep.’’ But Supreme Court Justice Robert Brutinel, writing for the court, said that was a mistake.

Brutinel said police generally must get a warrant. But he said there is an exception when officers, as a precautionary matter, can look in closets and “other spaces immediately adjoining the place of arrest from which an attack could immediately be launched.’’

The judge said, though, there must be “articulable facts’’ which, with other information, would warrant a “reasonably prudent officer’’ to believe someone dangerous is in the area.

Brutinel said those facts are not present here.

First, he noted that Fisher was detained outside of his apartment. In fact, the judge said, police did not arrest him until after the protective sweep.

And the judge said the basis for the sweep needs to be more than mere suspicion.

“The officers in this case could not articulate specific facts indicating that another person was inside Fisher’s apartment,’’ Brutinel wrote. And he said there is nothing in the record showing whether police even attempted to find out how many people lived there.

“Officers cannot conduct protective sweeps based on mere speculation or the general risk inherent in all police work,’’ the judge wrote.

Brutinel said the justices recognize that police officers are placed in life-threatening situations on a regular basis. And he said that danger would be reduced if police were allowed to do whatever they feel necessary to protect their safety.

But he said the Fourth Amendment to the United States Constitution, precluding unreasonable search and seizure, trumps all that.