protective sweep exception in Texas

2014The Court of Criminal Appeals adopted the protective-sweep exception to the warrant requirement in Reasor. 12 S.W.3d at 816-17 .

2004See id. ; Ramirez v. State , 105 S.W.3d 730, 743 (Tex.App.--Austin 2003, no pet.)(disallowing the opening of a cooler under the protective sweep exception because the officer could not reasonably believe it held a person); Torrez v. State , 34 S.W.3d 10, 18 (Tex.App.--Houston [14th Dist.] 2000, pet. ref'd)(expressing concern as to whether the opening of drawers, moving of furniture, opening of kitchen cupboards, searching under and between mattresses, and searching the top of closet shelves constituted a cursory inspection).

2021Ct. App. 2012). 22 judges alike that the alleged crime alone can create a “reasonable suspicion of danger” (see Buie, 494 U.S. at 335-36 ; Torrez, 34 S.W. 3d at 18 ) despite the absence of any specific and articulable facts that there is anyone inside a home.

2004See id. ; Ramirez v. State , 105 S.W.3d 730, 743 (Tex.App.--Austin 2003, no pet.)(disallowing the opening of a cooler under the protective sweep exception because the officer could not reasonably believe it held a person); Torrez v. State , 34 S.W.3d 10, 18 (Tex.App.--Houston [14th Dist.] 2000, pet. ref'd)(expressing concern as to whether the opening of drawers, moving of furniture, opening of kitchen cupboards, searching under and between mattresses, and searching the top of closet shelves constituted a cursory inspection).

2023We do not apply this part of Buie’s holding here because the record does not establish if the bedroom from which Coronado emerged “immediately adjoined” the living room where he was arrested. -5- 04-21-00501-CR Coronado further argues that the officers’ awareness of his gang membership and his felony conviction for deadly conduct should not be considered in a protective sweep analysis. 4 Coronado directs our attention to Davis v. State, where the Waco court of appeals held that a protective sweep of a kitchen was unlawful because the facts did not support an objective reasonable belief that th

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021In any event, a defendant’s own dangerousness is not relevant in ‘determining whether the arresting officers reasonably believed that someone else inside the house might pose a danger to them.’”) (quoting Colbert, 76 F.3d at 777 (emphasis in original)); see also id. (“Even a defendant’s prior arrests for violent crimes have been determined to be ‘irrelevant’ under a protective sweep analysis.”) (citations omitted); Archibald, 589 F.3d at 298-99 (“[I]n [Colbert, 76 F.3d at 777 ], we held that a defendant’s own dangerousness is not relevant in ‘determining whether the arresting officers reasonab

2021In any event, a defendant’s own dangerousness is not relevant in ‘determining whether the arresting officers reasonably believed that someone else inside the house might pose a danger to them.’”) (quoting Colbert, 76 F.3d at 777 (emphasis in original)); see also id. (“Even a defendant’s prior arrests for violent crimes have been determined to be ‘irrelevant’ under a protective sweep analysis.”) (citations omitted); Archibald, 589 F.3d at 298-99 (“[I]n [Colbert, 76 F.3d at 777 ], we held that a defendant’s own dangerousness is not relevant in ‘determining whether the arresting officers reasonab

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021In any event, a defendant’s own dangerousness is not relevant in ‘determining whether the arresting officers reasonably believed that someone else inside the house might pose a danger to them.’”) (quoting Colbert, 76 F.3d at 777 (emphasis in original)); see also id. (“Even a defendant’s prior arrests for violent crimes have been determined to be ‘irrelevant’ under a protective sweep analysis.”) (citations omitted); Archibald, 589 F.3d at 298-99 (“[I]n [Colbert, 76 F.3d at 777 ], we held that a defendant’s own dangerousness is not relevant in ‘determining whether the arresting officers reasonab

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021The government implicitly argues that this court should expand the protective sweep doctrine, go beyond Maryland v. Buie, and countenance the continuation of searches in situations such as this one, where there is no reasonable basis to conclude that there was a risk to officers or others . . . . [W]e reject the government’s argument.”); Menchaca-Castruita, 587 F.3d at 295 (where there was “no articulable reason to believe that someone else might be inside [the] residence posing a threat to the officer or the bystanders, or that any evidence was at risk of destruction or removal”); Benas v. Ba

2021The government implicitly argues that this court should expand the protective sweep doctrine, go beyond Maryland v. Buie, and countenance the continuation of searches in situations such as this one, where there is no reasonable basis to conclude that there was a risk to officers or others . . . . [W]e reject the government’s argument.”); Menchaca-Castruita, 587 F.3d at 295 (where there was “no articulable reason to believe that someone else might be inside [the] residence posing a threat to the officer or the bystanders, or that any evidence was at risk of destruction or removal”); Benas v. Ba

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021The protective sweep doctrine is inapplicable in this case because (1) Brodie was arrested outside of his residence; (2) the officers did not articulate any specific facts which led them to believe that Brodie’s residence harbored individuals posing a danger to those on the arrest scene; and (3) the warrantless search extended beyond the rooms ‘immediately joining the place of arrest.’”) (emphases added). 13 See also United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003); Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018); United States v. Foley, 218 F. App’x 139, 143 (3d Cir. 2007)

2021The government implicitly argues that this court should expand the protective sweep doctrine, go beyond Maryland v. Buie, and countenance the continuation of searches in situations such as this one, where there is no reasonable basis to conclude that there was a risk to officers or others . . . . [W]e reject the government’s argument.”); Menchaca-Castruita, 587 F.3d at 295 (where there was “no articulable reason to believe that someone else might be inside [the] residence posing a threat to the officer or the bystanders, or that any evidence was at risk of destruction or removal”); Benas v. Ba

2019Lipscomb v. State, 526 S.W.3d 646, 655 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).

2012For example, in United States v. Charles, the defendant challenged the constitutionality of a search of his storage unit. 469 F.3d 402, 404 (5th Cir. 2006).

2004Oles v. State , 993 S.W.2d 103, 106 (Tex.Crim.App. 1999).

2004See id. ; Ramirez v. State , 105 S.W.3d 730, 743 (Tex.App.--Austin 2003, no pet.)(disallowing the opening of a cooler under the protective sweep exception because the officer could not reasonably believe it held a person); Torrez v. State , 34 S.W.3d 10, 18 (Tex.App.--Houston [14th Dist.] 2000, pet. ref'd)(expressing concern as to whether the opening of drawers, moving of furniture, opening of kitchen cupboards, searching under and between mattresses, and searching the top of closet shelves constituted a cursory inspection).