SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0315-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 08-0857
LAQUINN ANTHONY FISHER, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2006-129825-001 SE
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Connie Contes, Judge
The Honorable Silvia R. Arellano, Judge (ret.)
REMANDED
________________________________________________________________
Opinion of the Court of Appeals Division One
225 Ariz. 258, 236 P.3d 1205 (App. 2010)
VACATED
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THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Joseph T. Maziarz, Assistant Attorney General
Attorneys for State of Arizona
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Margaret M. Green, Deputy Public Defender
Attorneys for Laquinn Anthony Fisher
________________________________________________________________
B R U T I N E L, Justice
¶1 The question presented is whether police officers
lawfully conducted a protective sweep of a suspect’s apartment
when he and other occupants were detained outside. We find the
protective sweep violated the Fourth Amendment under the
circumstances of this case.
I. FACTS AND PROCEDURAL BACKGROUND
¶2 In May 2006, Mesa police responded to a call alleging
an aggravated assault. The victim, who was bleeding from a cut
on his head, told police he had been pistol-whipped by a man
known as “Taz.” The victim described Taz and directed police to
an apartment complex where he believed Taz lived.
¶3 Other officers went to that apartment complex, where
Laquinn Anthony Fisher lived. After officers knocked and
announced their presence, Fisher and two others came out. None
had a weapon and all three were cooperative. Fisher, whose
appearance matched the description given by the victim,
identified himself to officers as “TA.”1
¶4 Despite having this information, officers thought
further investigation was necessary because the gun allegedly
used in the assault was still “unaccounted for.” Apparently
without asking whether anyone was still inside, police entered
the apartment to see if anyone else was present. Inside,
officers smelled marijuana and observed open duffle bags
1
The responding officer testified that the police dispatch
broadcast said the suspect went by both “TA” and “Taz.”
2
containing marijuana. They did not find anyone in the
apartment. After the sweep, officers obtained written consent
from Fisher’s roommate to search the apartment and seized the
marijuana. Officers later brought the assault victim to the
apartment, and he identified Fisher as his attacker.
¶5 Charged with various crimes, including possession of
marijuana for sale, Fisher moved to suppress any evidence of the
marijuana found in the apartment. The trial court denied the
motion, and a jury subsequently found Fisher guilty of the
possession charge.2 The court of appeals affirmed, reasoning as
follows: “Because the weapon used in the assault in this case
was unaccounted for and the police articulated sufficient
reasons for performing the sweep, . . . the trial court did not
err in determining that the protective sweep was supported by
reasonable suspicion.” State v. Fisher, 225 Ariz. 258, 260 ¶ 7,
236 P.3d 1205, 1207 (App. 2010).
¶6 We granted Fisher’s petition for review because we
previously have not considered the protective sweep doctrine, a
matter of statewide importance. We have jurisdiction pursuant
to Article 6, Section 5(3) of the Arizona Constitution and
Arizona Revised Statutes (“A.R.S.”) § 12-120.24 (2003).
II. DISCUSSION
2
Before trial, the State dismissed the other charges,
including the aggravated assault charge.
3
¶7 The Fourth Amendment to the United States Constitution
protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures.”3 “Unlawful entry into a home is the
‘chief evil’ against which the provision protects.” State v.
Guillen, 223 Ariz. 314, 316 ¶ 10, 223 P.3d 658, 660 (2010).
Typically, police officers must obtain a warrant to enter a
home, but because the “touchstone of the Fourth Amendment . . .
is reasonableness,” the Supreme Court has recognized several
exceptions to the warrant requirement. Michigan v. Fisher, 130
S. Ct. 546, 548 (2009) (internal quotation omitted).
¶8 One such exception is the protective sweep, first
recognized in Maryland v. Buie, 494 U.S. 325 (1990). Relying
heavily on Terry v. Ohio, 392 U.S. 1 (1968), and Michigan v.
Long, 463 U.S. 1032 (1983), Buie held that “incident to [an]
arrest the officers [can], as a precautionary matter and without
probable cause or reasonable suspicion, look in closets and
other spaces immediately adjoining the place of arrest from
3
Although Fisher’s petition cites Article 2, Section 8 of
the Arizona Constitution, he does not develop any separate
argument based on that provision or explain how any analysis
under it should differ from Fourth Amendment analysis; nor did
the court of appeals address this issue. Because a single
reference to the Arizona Constitution is insufficient to
preserve a claim, we do not address whether the protective sweep
violated the Arizona Constitution. State v. Dean, 206 Ariz.
158, 161 ¶ 8 n.1, 76 P.3d 429, 432 n.1 (2003).
4
which an attack could be immediately launched.” Buie, 494 U.S.
at 334. But to justify a broader sweep, “there must be
articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably prudent
officer in believing that the area to be swept harbors an
individual posing danger to those on the arrest scene.” Id.
¶9 Buie thus authorizes two types of limited warrantless
searches. The first involves the area immediately adjacent to
the place of arrest. Id. The second allows a search of
adjoining areas where persons posing a danger might be found.
Id.; see also United States v. Archibald, 589 F.3d 289, 295 (6th
Cir. 2009) (explaining two types of searches approved by Buie);
United States v. Lemus, 582 F.3d 958, 963 n.2 (9th Cir. 2009)
(describing difference between searches authorized by Buie).
This case concerns the second type of Buie search.
¶10 In Buie, officers conducted the protective sweep after
arresting the defendant inside his residence. Here, in
contrast, Fisher was detained outside his apartment and not
arrested until after the protective sweep.4 We assume, but do
not decide, that a protective sweep is not forbidden when a
suspect is detained and questioned but not yet arrested outside
of a residence.
4
The State concedes in its supplemental brief that Fisher
was not under arrest when the protective sweep occurred.
5
¶11 Although we have upheld protective sweeps based on
exigent circumstances, see, e.g., State v. DeWitt, 184 Ariz.
464, 467, 910 P.2d 9, 12 (1996) (finding warrantless entry of
home justified by burglary in progress); State v. Greene, 162
Ariz. 431, 433, 784 P.2d 257, 259 (1989) (upholding “protective
walk-through” of residence when initial entry was based on an
exigency), we have never specifically applied the Buie test.
¶12 Buie teaches that a protective sweep of a residence is
permissible only if the officers have a reasonable belief
supported by “specific and articulable facts” that a home
“harbored an individual posing a danger to the officers or
others.” Buie, 494 U.S. at 327. Conversely, if officers act
purely on speculation, a protective sweep is unreasonable. See,
e.g., Archibald, 589 F.3d at 300 (“Clearly, Buie requires more
than ignorance or a constant assumption that more than one
person is present in a residence.”); United States v. Gandia,
424 F.3d 255, 264 (2d Cir. 2005) (requiring more than lack of
information to justify a protective sweep).
¶13 The common thread among cases interpreting Buie is
that officers must have specific articulable facts that someone
who could pose a safety threat is inside a residence. See,
e.g., United States v. Murphy, 516 F.3d 1117, 1120-21 (9th Cir.
2008) (determining fact that owner of storage unit who had
outstanding arrest warrant was not accounted for justified
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officer’s reasonable belief that another person could be
present); United States v. Lawlor, 406 F.3d 37, 42 (1st Cir.
2005) (finding quick protective sweep justified when officers
arrived at residence where gunshot had been reported, shooter
had not been identified, and defendant “shrugged” when asked
about the gun); United States v. Gould, 364 F.3d 578, 592 (5th
Cir. 2004) (en banc) (upholding protective sweep of mobile home
when officers have consent to enter bedroom and a known
dangerous suspect was not in bed, as previously reported);
United States v. Taylor, 248 F.3d 506, 514 (6th Cir. 2001)
(approving protective sweep when officers heard scuffling noises
from inside before being admitted into apartment and suspect’s
demeanor indicated he was hiding something). The more specific
facts supporting a reasonable belief that an area contains a
potentially dangerous individual, the more likely the protective
sweep is valid. See, e.g., United States v. Tapia, 610 F.3d
505, 511 (7th Cir. 2010) (protective sweep proper when officers
had six separate valid articulable facts); United States v.
Davis, 471 F.3d 938, 945 (8th Cir. 2006) (listing several
articulable facts).
¶14 We find particularly persuasive the Second Circuit’s
decision in Gandia. There, officers responded to a reported
dispute between a building superintendent and a tenant. 424
F.3d at 258. Officers were given a description of a suspect who
7
might be carrying a gun. Id. Upon arrival, they saw Gandia,
who matched the description of the suspect, but determined that
he was unarmed. Id. Officers escorted him to his apartment and
asked if anyone else was there. Id. He said “no” and allowed
the officers to enter his apartment, but not to search it. Id.
Once inside, they nonetheless conducted a protective sweep and
discovered a bullet. Id. at 259. The Second Circuit held that
the sweep was invalid because the officers had no reason to
believe that a person might be hiding in Gandia’s apartment.
Id. at 264. Although there was an unaccounted-for weapon,
nothing indicated that “there was a person hiding in the
apartment who might use it.” Id. The court emphasized that
“‘lack of information cannot provide an articulable basis upon
which to justify a protective sweep.’” Id. (quoting United
States v. Moran Vargas, 376 F.3d 112, 117 (2d Cir. 2004)).
¶15 Similarly, the officers in this case could not
articulate specific facts indicating that another person was
inside Fisher’s apartment. The record does not reflect any
attempt by the officers to find out how many people lived with
Taz. Three people, including Fisher, exited the apartment.
Fisher identified himself and matched the victim’s detailed
description of the assailant. Although there was still an
unaccounted-for weapon, as in Gandia, nothing indicated that
anyone else was inside the apartment. Officers cannot conduct
8
protective sweeps based on mere speculation or the general risk
inherent in all police work. Because the officers here did not
articulate specific facts to establish a reasonable belief that
someone might be in the apartment, the protective sweep was
invalid.
¶16 We are mindful that:
[P]olice officers have an incredibly difficult
and dangerous task and are placed in life
threatening situations on a regular basis. It
would perhaps reduce the danger inherent in the
job if we allowed the police to do whatever they
felt necessary, whenever they needed to do it, in
whatever manner required, in every situation in
which they must act. However, there is a Fourth
Amendment to the Constitution which necessarily
forecloses this possibility.
United States v. Colbert, 76 F.3d 773, 778 (6th Cir. 1996). We
likewise are aware of the high price of suppressing evidence.
See State v. Bolt, 142 Ariz. 260, 266-67, 689 P.2d 519, 525-26
(1984); cf. Herring v. United States, 555 U.S. 135, 129 S. Ct.
695, 700-01 (2009) (“The principal cost of applying the
[exclusionary] rule is, of course, letting guilty and possibly
dangerous defendants go free – something that ‘offends basic
concepts of the criminal justice system.’” (quoting United
States v. Leon, 468 U.S. 897, 908 (1984))). But the right to
privacy in one’s home is “‘basic to a free society.’” Mapp v.
Ohio, 367 U.S. 643, 656 (1961) (quoting Wolf v. Colorado, 338
U.S. 25, 27 (1949)). Thus, specific facts, and not mere
9
conjecture, are required to justify a protective sweep of a
residence based on concerns for officer safety.
III. CONCLUSION
¶17 For the foregoing reasons, we vacate the court of
appeals’ opinion and remand the case to the trial court for
further proceedings.
_____________________________________
Robert M. Brutinel, Justice
CONCURRING:
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Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
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W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
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