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How to Justify Officer Safety Searches

Know the limits of your authority to protect yourself—physically and legally.

October 01, 2007  |  by Devallis Rutledge - Also by this author

Residential Search, Peek, and Sweep

When a lawful arrest occurs inside a residence, there are at least three separate safety concerns: (1) ensuring that the arrested person has no access to weapons during the arrest; (2) checking the immediate area for potential assailants who could jump you by surprise; and (3) trying to determine whether there are others present somewhere on the premises who might attack you. The first two of these concerns can be addressed automatically, with no stated suspicion; the third requires separate justification.

In Chimel v. California, the Supreme Court acknowledged the need to prevent an arrestee from gaining access to weapons or destructible evidence when he is arrested. The court said that this need justified searching the area under the suspect's immediate control (including possible hiding places within reaching or lunging distance).

In the later case of Maryland v. Buie, the court said that safety concerns would also justify routinely peeking into immediately adjoining rooms and spaces, to ensure that no potential assailant was lurking there, waiting for an opportunity to strike. This search is limited to a cursory look into possible hiding places in the room where the arrest takes place and opening any doors to that room for a quick peek. This search does not extend to the entire house.

The Buie opinion also held that officers lawfully inside a residence to arrest could search beyond the immediate area only if there was an articulable suspicion that a potential assailant was likely to be concealed somewhere on the premises. If the officer can point to specific reasons to believe a dangerous person is present, a safety sweep of the entire premises is justifiable. This would allow officers to go to floors and rooms throughout the premises to look for someone (but not to search into places too small to conceal an assailant).

Consent to Search

In situations where you do not feel the circumstances independently justify a safety search (or as a backup, even when they do), do not overlook the possibility of a consent search.

"In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence." (Scheckloth v. Bustamonte)

To increase the chances of obtaining consent, it may be useful to first ask the suspect if he has any weapons or harmful objects on him. If he admits that he does, this will normally provide probable cause to search; if he denies possessing anything illegal or dangerous, he may find it harder to refuse consent, as in the following typical exchange:

Officer: "Danny, you got any guns or needles or anything dangerous on you tonight?"

Suspect: "No, no...nothing like that."

Officer: "OK if I search you, then?"

Note that you should not request consent in an ambiguous form, such as, "Do you mind if I search?" A suspect who answers "No" may tell the judge he meant "No," making it problematic to find valid consent.

Survival Perspective

When a situation arises, there are no lawyers or judges present to give you instant advice as to the constitutionality of a safety search. Do what you think is necessary in order to go home walking and talking at the end of watch.

Most courts are aware that your job is dangerous, and most judges and juries are reluctant to second-guess officers who must make split-second decisions about the risks they confront and the necessity for precautions to ensure their own safety and the public safety. If you simply take the time to write down all of the reasons why you felt it was dangerous to proceed without taking the steps you took to ensure your safety, most courts will not take a grudging view of your justifications.

Devallis Rutledge, a former police officer and veteran prosecutor, currently serves as Special Counsel to the Los Angeles County District Attorney. His latest book is "Criminal Investigations and Evidence."

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