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Protective Sweep Doctrine - Protecting Arresting Officers From Attack By Persons Other Than the Arrestee

NCJ Number
Catholic University Law Review Volume: 33 Issue: 1 Dated: (Fall 1983) Pages: 95-145
P R Joseph
Date Published
51 pages
This paper examines two justifications for a protective sweep without a search warrant: a blanket right exists to conduct a protective sweep incident to every arrest inside a premises or such a sweep is justified on a case-by-case basis due to the exigent circumstances surrounding the particular arrest.
After Chimel v. California (1969), protective sweeps were neither foreclosed nor specifically authorized by the Supreme Court. While a protective sweep is always a search under the fourth amendment, it is justified by a need to safeguard arresting officers from possible attack from persons other than the arrestee. To maintain the balance between citizens' privacy and officers' safety, a narrow protective sweep rule must be adopted. A case-by-case justification is generally preferable to a per se rule, since it is more protective of fourth amendment rights. However, the case-by-case approach neither works well for the courts nor provides sufficient guidance for officers. In practice, a tightly crafted, sharply defined, and narrow per se rule might provide more protection to fourth amendment values. Under this rule, the protection of arresting officers appears to justify a protective sweep of the premises whenever the officers do not know for a fact that no persons other than the arrestee are on the premises. No search of other persons on the premises should be permitted, and a protective sweep should be limited to a walk-through of the premises and a brief visual scan of each room. The rule should limit the amount of time allowed for a protective sweep and not authorize the opening of any areas within a room. Further search may be justified only by reasonable suspicion that others are present and their intentions may be hostile. When the arrest is conducted outside the premises, there is no per se right to enter the premises to conduct a protective sweep. The article includes 225 footnotes.