Scope of Protective Sweeps (Part 8)

In Radel, the police executed a controlled arrest in the driveway — a distance from the home’s entrance — with watchful eyes on the front and rear doors of the house. The officers did not face a discernible threat. The officers had no specific information that another person was in the house, nor was there information from which they could reasonably infer that someone inside posed an imminent danger. Nothing unforeseeable occurred at the scene; no danger arose that mandated an entry of the home without a warrant. Therefore, a protective search was not justified under Buie.

On the other hand, in Terres, the officers faced unexpected and fast-evolving circumstances that signaled danger and the need for prompt action to safeguard their lives. The officers received a warning to be careful and that another male was with Fuller in Terres’s trailer — a clear signal of a potential threat; they had been told that Fuller was staying in a building where loose bullets and shell casings were observed; Fuller fled the trailer when he was arrested within feet of the open front door; and the situation was fluid and not stabilized as Trooper Hershey attempted to retrieve a hypodermic needle from Fuller’s pocket. Those specific and articulable facts in Terres provided a reasonable basis for entry into the home based on a very real and potential danger. The Appellate Division’s decisions are affirmed in both appeals. Radel’s case is remanded to the trial court.

The opinion does not reveal the pedigree information of the person that told that police “to be careful and that another male was with Fuller in Terres’s trailer.” The defense would be wise to compel disclosure of this info and to interview and/or subpoena him to confirm that the police were actually told this. If the witness indicates that the police fabricated this claim or it is revealed that no such person even exists, the Court would have almost certainly suppressed the evidence in Radel’s case as well.