The Ohio Patrolmen's Benevolent Association (O.P.B.A)
Knowing the Stakes of Protective Sweeps
Recently, a defendant in one of our cases escaped drug and weapon related felony charges because of an improperly performed protective sweep. Police, responding to an anonymous emergency call involving a domestic dispute, performed a routine protective sweep and found a bag of cocaine and a gun on the bedroom floor. The officer believed that a protective sweep could be executed upon entering a home. However, the law requires more.
In order to legally perform a protective sweep, an officer must have an articulable suspicion or reasonable belief that there is someone in other rooms of the house who poses a danger to those on the arrest scene. The officer in the case above thought that he was able to perform a protective sweep at any time and stated that he always conducted them upon entering a home. This officer could not provide a specific reason for his suspicion that someone else was in the home. The officer said that he is often lied to when he asks about others in the home. That is not a solid enough reason for the sweep to hold up in court.
To avoid a situation like the one above, you should always begin by asking to search the home. If they say no, you still may search if you have a reasonable belief that there is someone else in the house that gives you reason to be concerned for your safety. Just because you hear a noise or even are advised that there is some other occupant in another room does not mean you can search there. It is important that you have some reasonable belief that a known or possible other occupant is a risk to your safety. The officer in the above case needed some reasonable suspicion in order to search, which he did not have.
The duties of a police officer can be stressful and demanding, especially when dealing with hardened criminals in high drug traffic areas. An added difficulty is having to comply with numerous, often complex, laws. Remember that you are only allowed to make a protective sweep when you have an articulable, reasonable suspicion of danger or you might watch the defendant walk free.
This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.
Sherri Bevan Walsh
Summit County Prosecuting Attorney
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Law Enforcement Bulletin October 2014
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- Job Announcement
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