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S.D.W.Va.: Protective sweep may occur on entry by consent

By John Wesley Hall, Jr.

A protective sweep may occur without a search incident where the officers are inside by consent. United States v. Davis, 2008 U.S. Dist. LEXIS 96780 (S.D. W.Va. November 25, 2008) (recognizing a split in the circuits): The facts of this case are distinguishable from Buie in that the officers in this case were in Defendant's hotel suite with his consent and that he was not under arrest at the time of the protective sweep. Defendant argues that Buie's holding should be limited to protective sweeps conducted as part of searches incident to arrest. Several courts have addressed factual situations similar to the case at bar in light of Buie, but the Fourth Circuit is not among them. Unsurprisingly, these authorities are split as to whether law enforcement actions similar to those in this case are reasonable...continue to full post

Full post as published by Fourth Amendment on November 30, 2008 (boomark / email).