A great deal of criminal law turns on bedrock constitutional tenets set forth in the United States Constitution, in particular, the Fourth, Fifth and Sixth Amendments. Anytime police are searching your car or home, the Fourth Amendment applies in several ways. One of the misunderstood concepts is protective sweeps for officer safety, a topic again just addressed by the Indiana Court of Appeals.
Obviously, at this time with police officers in some areas being targeted, it makes sense that in a stop of a car or search of a home, a police officer could look for weapons that might pose an immediate risk of harm. However, this is not a direct part of a police stop or search but a way to balance officer safety with the constitutional right prohibiting unlawful seizures under the United States and Indiana Constitutions. Thus, a “protective sweep” is not a right to just search.
In a just-decided Indiana Court of Appeals case,1 this Court reversed a man’s felony firearm conviction after finding that the protective sweep performed in his apartment was improper. As our prior blogs have set forth, criminal constitutional protections are very specific to the facts and it is imperative you obtain counsel sensitive to this and you tell him or her your story.
In the Johnson case, Mr. Johnson had been arrested and was in handcuffs and the door to the apartment where he had been was locked. The Court of Appeals reversed his conviction on this firearm the police found because it was inside the apartment, not in the hallway, “a space immediately adjoining the place of arrest in the hallway of the apartment building from which and attack could immediately be launched.” This is required for protective sweeps. Beyond this area is an illegal search.
Specifically, since there was no risk of harm to the officers from this gun inside the apartment, this evidence was suppressed, which will likely result in dismissal of his case. Thus, the devil is in the details. Understand that criminal law is more than just hiring an attorney and negotiating a plea in many if not most cases. It is the balance between your freedom, the protections you are guaranteed under the constitution, and the duty to provide a safe society. Just guessing? Would you bet your freedom on it?
This blog post was written by attorneys at Dixon & Moseley, P.C. who handle criminal defenses cases throughout the state. This blog is not intended as specific legal advice or a solicitation for services. It is an advertisement.
