Protective Sweep Searches in New Mexico Fairly Limited Under 4th Amendment

A recent decision from the Court of Appeals of the State of New Mexico makes it clear that a protective sweep of the inside of a Defendants‘ residence, incident to an arrest taking place outside of the residence, is impermissible unless there is a “reasonable belief based on specific and articulable facts that the area to be swept harbor[s]an individual posing a danger to those on the arrest scene.”

The facts as stated by the Court in State of New Mexico v. Eckard are pretty straightforward.

Felony warrants were issued for the Defendant and his wife. Several agents arrived at the house to serve the warrants. Some of the agents went to the front door while some of the agents went around to the back of the house. There was no response to the agents‘ knock on the front door of the house. The agents that went around to the back of the house found the Defendant and his wife sitting at a table about ten feet from an open sliding door.

The Defendant and his wife were then handcuffed. Some of the agents then entered the house to conduct a protective sweep. The agents walked through the house and on their way out they noticed a blanket against the wall covering a large item. The agents removed the blanket and found six or seven trash bags that smelled of marijuana. A search warrant was obtained and the trash bags were opened exposing one hundred and sixty pounds of marijuana.

The Defendants moved to suppress the evidence obtained during the protective sweep and the subsequent search of the trash bags. The Defendants argued that the protective sweep constituted an illegal search under Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution.

The Court in Eckard relied on the 1990 United States Supreme Court case of Maryland v. Buie where the Court laid out when a protective sweep incident to an in house arrest may be conducted. Applying Buie to the present case, the New Mexico court explained that the agents needed to have a reasonable belief based on specific and articulable facts that there was someone inside the Defendants‘ house that posed a danger to the agents on the scene, and that the sweep conducted must be limited to a cursory inspection of where such a dangerous person may be found.

Applying this standard the Court concluded that the agents testimony about the Defendants‘ “general criminal history, general officer safety and standard protocol” did not meet the burden of specific and articulable facts reasonable to conclude that someone hiding in the house posed a threat to the agents on the scene. Likewise, the Court found that the search of the inside of the house was not a search of a space immediately adjoining the place of the arrest because the sliding glass doors entering the house were ten feet from where the Defendant and his wife were sitting.

The Court also rejected the State‘s argument that the focus must be on the nature of the crimes for which the arrest was made, i.e. the danger of conducting an arrest of a fugitive wanted for drug trafficking is sufficient to warrant a protective sweep. Once again, relying on Buie, the Court explained that the justification for a protective sweep is based upon the threat posed by third persons, not the threat posed by the arrestee.

Based upon these findings the Court held that the protective sweep was unjustified and due to the illegal nature of the protective sweep, the resulting search warrant was also invalid. All of the evidence seized was suppressed as the fruit of the initial illegal entry.

The legality of a search and seizure frequently determines the outcome of a criminal prosecution. It is important that you discuss thoroughly with an experienced criminal defense attorney the facts and circumstances surrounding any search and seizure of evidence in course of your criminal investigation or arrest.

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