Searches of a Suspect’s Home When the Suspect Is Arrested Immediately Outside the Home

Maryland v. Buie (1990) holds that, when a suspect is arrested in a home,

[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched…. [S]uch a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.

But what if a suspect is arrested immediately outside the home? May the police search the space immediately adjoining the outdoor place of arrest, in case someone is lurking nearby? This is especially important because, if they may, then they would also be able to seize any evidence of crime that they find in “plain view” inside those parts of the home — and use this evidence in prosecuting the arrested person.

In United States v. Lemus, the Ninth Circuit held that such a search of part of the home is constitutional, even without any reasonable suspicion, at least when that part of the home “was a place from which an attack could be immediately launched.” The gun that was found in plain view during the search could thus be used as evidence to convict Lemus of being a felon in possession of a gun. The court noted that the living room door was open, “which created additional hazards for the officers”; but I don’t think that can be seen as a limitation on the holding, since a potential attacker could easily open a closed door as well. And the court even notes that “[a] bullet fired at an arresting officer standing outside a window is as deadly as one that is projected from one room to another,” which suggests that the searched room doesn’t even have to be one that has a door leading out to the place where the arrest happens.

In today’s dissent from denial of rehearing en banc, Chief Judge Kozinski (joined by Judge Paez) sharply criticizes the panel’s decision, arguing that it’s inconsistent with the reasoning of Buie and that it dramatically erodes the protection of the home against searches — especially when coupled with the “plain view” doctrine:

Buie was a case where the police were already legitimately inside the home when they arrested the suspect. The question was whether they could look in the area immediately adjoining the arrest where someone who could ambush them might be hiding. The Court recognized that police inside an arrestee’s home are peculiarly vulnerable because they are on the suspect’s turf — a place where someone dangerous might be hiding. The risk is present in every case because a suspect’s home is inherently dangerous for police who must enter to make an arrest. But Buie says nothing at all about police who conduct an arrest outside of the home. It does not authorize police to enter a home for the very purpose of conducting a search. That is the situation we have here…. [T]o use the [Buie] exception as a wedge for entering the home turns Buie inside out….

[The panel] allows police to search an arrestee’s home without suspicion, so long as the arrest is within a rifle shot of the home. No other circuit allows entry into the home on less than reasonable suspicion….

How has it come to this? There’s a simple answer: Plain view is killing the Fourth Amendment. Because our plain-view case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it. This is a case in point. While the officers were finishing their room-to-room sweep of Lemus’s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives? There was absolutely no reason for the detectives to enter except to try to find contraband in “plain view.” So, the detectives went in and, while there, Diaz thought he saw “something sticking out from the couch” that “looked like the butt of a weapon.” Longoria then lifted the couch cushion “to make sure” and found a gun. Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant — if they could — based on what they saw, before rummaging through the couch?

If the officers and detectives had truly feared for their safety, they would certainly have moved away from Lemus’s apartment once they took him into custody. Instead, they did the very thing that Buie says puts a police officer in danger: They went inside a suspect’s home. They didn’t just peek either, which might be consistent with a claim that they were checking to make sure they could retreat unmolested. The officers swept every room; Longoria and Diaz hung out in the living room long enough to study Lemus’s couch and dig through its cushions. The officers clearly took advantage of Lemus’s arrest to conduct a leisurely search of his home looking for contraband….

Plain view encourages the police to find every possible loophole to get themselves into a place where they can take a good look around, discover some evidence and then get a warrant to seize what they already know is there. This tiresome two-step is the new dropsy evidence. As often as not, the chance of hitting the plain-view jackpot is what drives the police into a man’s house, his doctor’s office or his ISP. Carefully drawn limitations in a warrant and narrow justifications for exceptions to the warrant requirement are becoming afterthoughts. “Police officer safety,” the narrow justification in Buie, had nothing to do with this search. Gathering evidence did. We should not abet such skirting of the Fourth Amendment by the police; it only encourages them to do worse.

I’m inclined to agree with Chief Judge Kozinski on this — if the panel majority’s opinion correct, then indeed the police would have broad authority to search people’s homes so long as they’re arrested nearby, even if they walk out of the house when told to “come out with their hands up.” In principle, this might even extend to authority to search other people’s homes (even with no specific articulable suspicion of danger), since presumably the danger could come not just from the arrestee’s home but from the home of an arrestee’s friend. I don’t think Maryland v. Buie authorizes such a departure from the Court’s general presumption that the Fourth Amendment does not allow searches of the home without articulable suspicion (and usually a warrant).