In Maryland v. Buie, 494 U.S. 325 (1990), the United States Supreme Court held that when making an in-home arrest, law enforcement officers may make a warrantless search of the residence in which the arrest occurs if they can articulate a reasonable suspicion that someone other than the arrestee is present in the residence and posing a danger to the officers. The search, commonly known as a “protective sweep,” is supposed to be cursory in nature, and it is supposed to last no longer than is necessary for the officers to either detain the persons posing the danger or to satisfy themselves that no one else is actually present.
In the Kansas City area, however, law enforcement officers don’t always concern themselves with the niceties of Supreme Court precedent. In fact, local police agencies have a habit of conducting protective sweeps just about any time they engage in an operation that presents even a remote risk to the officers, regardless of whether they are making an in-home arrest or whether they can articulate a basis for believing that a dangerous person lurks somewhere in the residence. In 2005, the 10th Circuit Court of Appeals took a stab at curbing the problem, taking on the Kansas City FBI Violent Crimes Fugitive Task Force’s practice of conducting a protective sweep every time they tracked someone down. It wrote:
Neither do we endorse the Task Force’s practice of automatic protective sweeps based on the assumption that “drug houses” are inherently dangerous. [The detective] testified that drug houses are, in his experience, places of violence, and this is no doubt true. However, given the Supreme Court’s general disinclination to carve out subject-matter-specific exceptions to the Fourth Amendment, see, e.g., Florida v. J.L., 529 U.S. 266, 272-73 (2000)(rejecting a firearms exception to the Fourth Amendment and suggesting that a narcotics exception would be equally improper); Mincey v. Arizona, 437 U.S. 385 (1978)(rejecting a “murder scene exception” to the Fourth Amendment), its rejection of a “felony drug investigation” exception to the knock-and-announce rule, see Richards v. Wisconsin, 520 U.S. 395, 391-94 (1997), and the malleability of the concept of a “drug house,” we decline to endorse the suggestion that the Fourth Amendment accommodates a “drug house” exception.
Unfortunately, the decision did little to curb police behavior on the Missouri side of Kansas City. Recently, a tactical officer testified during a suppression hearing that his unit conducts a protective sweep every time they enter a suspected drug house. This behavior, according to him, is justified solely by the inherent danger associated with drug trafficking. A case-by-case analysis is not undertaken and there is no consideration of the two Buie reqirements—in-home arrest and apparent presence of a hidden and dangerous third party.
Officers on the Missouri side are able to do this with impunity, because Missouri falls inside the boundaries of the 8th Circuit Court of Appeals, which in United States v. Cash, 378 F.3d 745 (8th Cir. 2004), cert. denied, 544 U.S. 963 (2005), held that officers would be fools not to conduct a protective sweep when making an arrest in a drug house. In his dissent to the opinion, Judge Kermit Bye unsuccessfully argued that the court was creating a bright line rule permitting law enforcement to conduct a protective sweep each time a drug arrest is made.
Recently, I wrote an appeal in which I argued that seven or eight members of ICE and the Kansas City Police Department’s Gang Unit conducted an unconstitutional warrantless search of the house my client shared with his brother. In my case, law enforcement conducted a knock-and-talk based on unverified information that the house was a drug stash house and that the brothers were enforcers in a drug trafficking operation. When it appeared my client’s brother might be flushing drugs down the kitchen sink, the agents became more insistent in their demands that my client open the door. When the door was opened, the brothers were detained in the front room, and the agents conducted a protective sweep that revealed drugs, money, and weapons. Based upon the discovery, they secured a search warrant and seized more of all three things.
During the suppression hearing, the testifying ICE agent and gang unit detective admitted that prior to the sweep no arrest had been made and they had no basis to believe that anyone else was in the house. Despite these admissions, the district court didn’t suppress the evidence, and the 8th Circuit upheld the lower court’s decision. In fact, for the first time, the 8th Circuit joined a throng of other appellate courts in ruling that an in-home arrest is not really a requirement of Buie. Worse, it didn’t even mention anywhere in its opinion the fact that law enforcement confessed their lack of an articulable and reasonable suspicion that anyone was in the house other than the already detained brothers. Instead, the court said all was well because law enforcement had been told that drugs and guns were in the house and the brothers were suspected drug enforcers.
This summer, I filed a petition for a writ of certiorari in the United States Supreme Court, challenging the 8th Circuit’s opinion. In the petition, I not only pointed out that the opinion disregards Buie in its entirety, but also that in light of the 8th Circuit’s earlier Cash opinion, police in the 8th Circuit are now free to conduct a protective sweep in any suspected drug house, regardless of the circumstances and without concern for the Fourth Amendment.
In filing the petition, I had no delusions about my chances of getting my client’s cause heard. After all, mine is an in forma pauperis case, and the Supreme Court is the place where in forma pauperis cases go to die. This is not a knock on the Supreme Court. It is just an acknowledgment that a large number of such cases—whether filed by prison inmates with time on their hands or pro se litigants lacking the ability to write a coherent brief—are so lacking in merit that the petitions are easily denied. Litigants file thousands of petitions each year in the Supreme Court, and Court grants only about 1% of the petitions. An even smaller percentage of in forma pauperis petitions make the cut. The chances of success are so slim that in pauper criminal cases, the Solicitor General’s Office doesn’t waste its time filing responses.
But in my case, a funny thing happened on the way to the bone yard. The petition I filed on behalf of my client caught someone’s fancy, and the Court called for a response from the government. According to an article I read, when the Court calls for a response, the overall chance of getting your case heard increases from slightly less than 1% to 8.6%. For an in forma pauperis case, the petitioner is thirty times more likely to see cert granted. Clearly, the call for a response doesn’t guarantee my client’s case will get heard, but there is cause for some hope, in that the filing of a response is a prerequisite of a cert grant.
UPDATE: The Supreme Court denied certiorari.