Protective Safety Sweep
Tampa Florida Criminal Defense Lawyer notes a recent Search and seizure case involving a Residence and a Search Warrant. The Second District Court ruled that the protective sweep of the possession of marijuana defendant’s residence was improper. The court noted no basis for concern that drug evidence might be destroyed before a search warrant could be obtained.
Marijuana Search – Safety Sweep
The appeals court also found no facts to support a reasonable belief that there was a person in the residence who could pose a danger to law enforcement. The observation of narcotics by officers during an improper protective sweep cannot be a valid basis for issuance of search warrant, even so, since the officers smelled marijuana when the suspect opened front door after officers had lawfully approached residence and knocked on front door, probable cause for issuance of warrant was found.
When the court finds that police unlawfully obtained some of evidence contained in an affidavit or application for a search warrant, the trial court must then determine if there was probable cause to support issuance of warrant based on any independent and lawfully obtained evidence. The trial court committed error in granting the motion to suppress because probable cause for issuance of warrant was established without considering evidence obtained in improper protective sweep.
“[T]he sweep of the house was improper based on the concern that evidence may be destroyed because there were no facts supporting an objectively reasonable basis for the belief that someone inside the house could destroy evidence while the warrant was being obtained. See United States v. Rivera, 825 F.2d 152, 156 (7th Cir. 1987) (“In determining whether the agents reasonably feared imminent destruction of the evidence, the appropriate inquiry is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced agent to believe that evidence might be destroyed before a warrant could be secured.”).”
“[T]here was no evidence that the house was occupied, the trial court correctly found that the protective sweep of the house for officer safety was improper as there were no specific and articulable facts supporting a reasonable belief that there was an individual in the house who could pose a danger to law enforcement. See Maryland v. Buie, 494 U.S. 325, 337 (1990) (“The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.”).”
“Where a court finds that police unlawfully obtained some of the evidence contained in the application for the
search warrant, the court must then determine if there is probable cause to support the issuance of the warrant based on any independent and lawfully obtained evidence. Id. “[T]he court must excise the invalid allegations from the affidavit and determine whether sufficient valid allegations remain to support a finding of probable cause.” State v. Hood, 68 So. 3d 392, 395 (Fla. 2d DCA 2011).”
Source: STATE OF FLORIDA, v. IDALIA ROMAN Case No. 2D11-769 (Fla 2d DCA Nov. 7 2012).