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Name: People v. Werner
Case #: H037156
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 07/20/2012

A generalized concern for officer safety without an articulable factual basis does not justify a warrantless search under the protective sweep doctrine. Appellant was arrested and handcuffed outside his home based on a reported domestic violence incident earlier in the day. Appellant asked his roommate to retrieve shoes and keys for him. A deputy accompanied the roommate into the house “for officer safety reasons.” While they were in appellant’s bedroom, the deputy observed drugs and illegal fireworks in plain view. During subsequent searches based on consent and a search warrant, deputies found more drugs and other items. Appellant pleaded no contest to a number of charges based on this evidence after a motion to suppress was denied. Reversed. The Fourth Amendment permits a limited protective sweep in conjunction with an in-home arrest, and in some instances an arrest outside the home, when the searching officer possesses a reasonable suspicion based on specific and articulable facts that the area to be swept harbors a dangerous person. (Maryland v. Buie (1990) 494 U.S. 325, 337.) In this case, the People did not show that the protective sweep doctrine justified entering appellant’s home. There was no information aside from a generalized concern for officer safety. The evidence showed only that appellant was handcuffed posing no danger. The crime being investigated occurred hours earlier. Appellant’s roommate had no outstanding warrants, had no weapons on him, and there was no evidence suggesting he was a danger. There was no evidence that deputies were aware of ongoing criminal activity in the house or had information that another person was in the house. As a result, evidence found in the defendant’s bedroom was the product of an unlawful search and should have been suppressed. The People did not show that the roommate’s consent to search was lawful and evidence located during this search should have been suppressed as well. Since it was possible that the search warrant affidavit, which was not included in the appellate record, was based largely on illegally obtained evidence, the trial court was directed to determine whether this evidence should be suppressed as “fruit of the poisonous tree” on remand.