Legality of Protective Sweep in California

A protective sweep may be legal even when it is not incident to an arrest. (People v. Ledesma (2003) 106 Cal.App.4th 857, 864.) However, officers must still be reasonably justified in performing the protective sweep. (Ibid.) In People v. Celis (2004) 33 Cal.4th 667, the California Supreme Court held a protective sweep to be unlawful. A statewide drug trafficking investigation led officers to set up surveillance outside of the defendant's house. (Celis, supra, 33 Cal.4th at pp. 671-672.) The officers followed the defendant for two days and, on the second day, they detained the defendant at gunpoint when the defendant left his house with another man. (Id. at p. 672.) "Because police had noticed that the defendant's wife and 'possibly a male juvenile' lived with the defendant, police entered the house to determine if there was anyone inside who might endanger their safety," effectively performing a protective sweep. (Ibid.) When inside the house, the officers found a box large enough to conceal a person, opened it, and discovered several packages which were subsequently found to contain cocaine. (Id. at pp. 672-673.) In concluding the standards to perform a protective sweep were not met, the court noted the officers observed the defendant's wife and a "'juvenile male'" at the house over the two-day surveillance period, but the officers did not keep track of who was in the house. (Celis, supra, 33 Cal.4th at pp. 679-680.) So the officers had no knowledge the wife and "'juvenile male'" were inside the house at the time they detained the defendant. (Id. at 679.) Because the officers conducted the protective sweep without information indicating that anyone was inside the house, the requirements of Buie were not met. That is, there were no "'articulable facts' considered together with the rational inferences drawn from those facts, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to be swept harbored a person posing a danger to officer safety." (Celis, supra, 33 Cal.4th at pp. 679-680.) A recent case applied Celis to another protective sweep. (People v. Ormonde (2006) 143 Cal.App.4th 282.) In Ormonde, officers responded to a domestic violence call made by the victim. (Id. at p. 286.) Officers met the victim away from the defendant's home where the victim's estranged husband was located. (Ibid.) After receiving directions from the victim, officers proceeded to the defendant's home, where they encountered the estranged husband outside. (Ibid.) An officer entered the defendant's home to check if anyone was inside because "he believed that his safety and the safety of the other officers would be jeopardized if he did not enter the house." (Id. at p. 287.) While inside the house, the officer encountered the defendant, a woman, and a young girl, all of whom he asked to step outside. (Ibid.) During the arrest scene investigation, the officers received information that the defendant was a drug user and drug dealer. (Id. at pp. 287-288.) The officers returned to the inside of the house where they found illegal drugs. (Ibid.) The People contended the officer's initial entry into the home was justified as a protective sweep because, based on the officer's past experiences with domestic violence situations, he feared for his and the other officers' safety. (Ormonde, supra, 143 Cal.App.4th at p. 294.) Such fear was based largely on the officers' experience with there being weapons at homes where domestic violence occurs and "'sympathetic parties other than the two combatants, such as family members, friends, parents, people who have an emotional stake in what's occurring and are not happy about the police being involved in their personal business and who also may want to protect the victim and/or suspect.'" (Id. at p. 295.) Disagreeing with the People, the court explained, "it does not appear to be enough, under Celis, that the police were genuinely apprehensive of danger based on past experience with domestic battery situations or large-scale drug operations." (Ibid.) The officer's genuine fears were not enough to satisfy Buie because officers still must have knowledge of facts that give "rise to a reasonable suspicion that the area to be swept harbors an individual or individuals posing a danger to those on the arrest scene." (Ormonde, supra, 143 Cal.App.4th at p. 295.) To show that the officers lacked the requisite knowledge of facts, the court noted that the officers did not see anyone else inside the house, did not have reason to suspect that the estranged husband was armed, "or that anyone else was involved in the domestic fracas . . . ." (Id. at p. 294.) In fact, the officer who made the entry "specifically testified 'I don't think that I thought there were people in the house, I was just trying to determine if there were people in the house,'" demonstrating a lack of the factual knowledge necessary to support a reasonable suspicion that someone was inside. (Ibid.) Most recently, our Supreme Court decided People v. Troyer (2010) 51 Cal.4th 599. There, officers responded to a shooting that had taken place at a residence. (Id. at p. 603.) Officers were informed there was possibly a male victim who had been shot twice. (Ibid.) When the officers arrived, two victims were outside of the house, but the officers had not accounted for the male victim mentioned in the report. (Ibid.) There was blood on the front door and door handle, leading officers to believe that the unaccounted-for victim could have been inside the house. (Ibid.) The officers entered the house, came across a locked bedroom, and kicked in the door. (Id. at p. 604.) Inside, the officers found drugs, guns, and over $9,000 in cash. (Ibid.) Because the officers were looking for an unaccounted for victim, they were justified in entering the house and locked room based on an emergency aid exigency. (People v. Troyer, supra, 51 Cal.4th at pp. 608, 612.) Additionally, the court noted the locked door posed "obvious risks to the officers." (Id. at p. 613.) Such risks were present because the crime to which the officers responded was a shooting and, since the suspects were at large when the officers arrived on the scene, it was possible that they were behind the locked door. (Id. at pp. 612-613.)