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33 Cath. U. L. Rev. 95 (1983-1984)
The Protective Sweep Doctrine: Protecting Arresting Officers from Attack by Persons Other Than the Arrestee

handle is hein.journals/cathu33 and id is 107 raw text is: THE PROTECTIVE SWEEP DOCTRINE: PROTECTING ARRESTING OFFICERS FROM ATTACK BY PERSONS OTHER THAN THE ARRESTEE Paul A Joseph * As a prosecutor, you are informed by the arresting officer in a pending case that he went to defendant's house to execute an arrest warrant.' He made the arrest in the front hall and then proceeded through each room of the house. In the back bedroom, on a countertop in plain view,' he ob- served cocaine. The defendant is then charged with its possession.' No good you say, the house walk-through was a search conducted without a warrant and therefore is unreasonable under the fourth amendment.' The * Associate Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University. B.A., Goddard College, 1973; J.D., University of California, Davis 1977; LL.M., Temple University, 1979. The author wishes to thank his research assistant Karen McGuire. 1. The protective sweep issue arises whenever an arrest is made inside premises. Since Payton v. New York, 445 U.S. 573 (1980), a routine entry to arrest inside a private residence cannot be made without an arrest warrant. Entry into the house of a party, other than the person to be arrested, requires, in the absence of consent, a search warrant in addition to the arrest warrant. Steagald v. United States, 451 U.S. 204 (1981). Neither of these cases limit the right to enter without a warrant in exigent circumstances, such as hot pursuit. 2. Plain view expresses the concept that what an officer observes from a place where he is entitled to be is not a search. Thus, if during an arrest the officer observes contraband in plain view on a counter, it may be legally seized. Permitting protective sweeps allows officers to be in more areas of the premises lawfully, thus giving them more opportunities to observe seizable items in plain view. The challenge to a protective sweep arises, as with other search and seizure issues, in the course of defendant's attempt to suppress the items seized. For the seizure to be upheld under the plain view doctrine, the item must be ob- served from a place where the officer was entitled to be. An unlawful prior search cannot provide legal justification for a seizure under the plain view doctrine. See generally Coo- lidge v. New Hampshire, 403 U.S. 443 (1971) (plurality opinion); Texas v. Brown, 51 U.S.L.W. 4361 (1983) (plurality opinion, all concurred in the judgment on plain view grounds). 3. The particular facts given here are for illustrative purposes only. 4. The right of the people to be secure in their persons, houses, papers, and ef- fects, against unreasonable searches and seizures, shall not be violated, and no war- rant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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