State v. Blanco

CURLEY, J.

¶ 30. (dissenting). I am in agreement with the majority's analysis and conclusion that, under the circumstances present here, the police, armed with an arrest warrant for Antonio Blanco, lawfully entered Al-Shammari's apartment and arrested Blanco. I do not, however, agree with the majority's decision that the police officer's actions in searching a secured crawl space were reasonable or lawful under the protective sweep doctrine.

*414¶ 31. First, I do not believe that the officer was actually conducting a protective sweep. A review of the officer's actions permits only one reasonable conclusion — that the officer was searching for illicit drugs in the crawl space, and not, as he claimed, conducting a search for an accomplice of the three persons found in the apartment. I reach this decision by noting that the officer went immediately to the bathroom, bypassing several other larger rooms on his way in which he conducted no protective sweeps. Further, as the majority opinion concedes, the record is devoid of any evidence that the police officer, when entering the bathroom, had his gun drawn, or requested the assistance of any other officers, actions one would ordinarily expect when a police officer suspects an accomplice is hidden in a room. These facts, coupled with the earlier police observations concerning the apartment lead me to believe no protective sweep was taking place.

¶ 32. After many hours of monitoring Al-Sham-mari's apartment, the police observed only three people in the apartment. All three were immediately accounted for when the police entered the apartment. Thus, when the police entered Al-Shammari's apartment and observed three people, they had no reasonable suspicion that another person was in the apartment. The police did, however, have a reasonable belief that drugs were being disposed of by means of the toilet and the garbage disposal. The police reported hearing excessive flushing of the toilet and constant running of the garbage disposal. So strong were their suspicions that drugs were being removed from the apartment in this manner that the police had the water turned off. Thus, while it was reasonable for the police to believe that the suspects were disposing of contraband, these same observations did not transform their *415suspicion of drug disposal into a reasonable belief that a person was hiding in the crawl space. Consequently, I believe no reasonable officer had any facts, much less facts which meet the "specific and articulable facts" test required under Maryland v. Buie, 494 U.S. 325 (1990), to believe that the bathroom or, for that matter, the apartment, contained a dangerous person who posed a danger to him.

¶ 33. The facts in United States v. Burrows, 48 F.3d 1011 (7th Cir. 1995), a case affirming a protective sweep, cited in the majority opinion, are much different. In Burrows, the Court held that the police could forcibly open the locked doors of several rooms. See id. at 1016-17. There, however, the police entering the apartment had absolutely no idea how many people were in the apartment. Here, the police knew, after hours of observation, that there were only three suspects. Thus, I must conclude that the claimed protective sweep for dangerous accomplices was actually a pretext for the unauthorized search of the apartment for contraband.

¶ 34. Second, even if one accepts the premise that the police were engaged in a protective sweep, the actions taken by the officer went far beyond those permitted under law. Assuming that the officer had a specific and articulable belief that someone might be hiding, his protective sweep was, nevertheless, limited in its scope. A protective sweep "is not a full search of the premises." Buie, 494 U.S. at 335. Rather, it is a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Id. at 327. The protective sweep doctrine is "aimed at protecting the arresting officers," id. *416at 335, and the doctrine limits officers to "look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched," id. at 334 (emphases added).

¶ 35. None of the underpinnings for a constitutionally protected protective sweep existed here for the search of the crawl space. First, the bathroom did not adjoin the place of arrest. In fact, as noted, the officer had to travel past several rooms before reaching the bathroom. In State v. Kruse, 175 Wis. 2d 89, 499 N.W.2d 185 (Ct. App. 1993), a case with facts more supportive of a protective sweep than those found here, this court upheld the trial court's suppression of marijuana found in Kruse's bedroom closet during a protective sweep after Kruse was arrested in the living room. In doing so, this court stated: "We conclude that the bedroom closet was not in the vicinity of the place of arrest and therefore not subject to a Buie protective search without reasonable suspicion." Id. at 95.

¶ 36. Second, given the limited purpose of the sweep — to protect officers — no reasonable officer could believe that a person, if indeed there was one, hidden behind a trapdoor securely fastened with four screws would pose a danger to the officers or possibly launch an immediate attack. In Burrows, the locked doors that were forcibly opened "were in an area adjoining the place of arrest [the bathroom] from which an attack could be immediately launched." Burrows, 48 F.3d at 1014. A locked door can be easily unlocked from the inside, but here, it would be most difficult and time consuming for a person to exit from a crawl space whose opening has been secured by four screws on the outside. Also, a "cursory visual inspection" hardly encompasses entering a secured space with the aid of tools.

*417¶ 37. Consequently, I believe the actions taken by the police fell outside those permitted under the protective sweep doctrine. Further, by legitimizing the search of a crawl space accessed only by means of removing the door's four screws with a screwdriver, the majority has enlarged the protective sweep exception far beyond that contemplated by the United States Supreme Court and, in doing so, has dealt a serious blow to the Fourth Amendment prohibition against unreasonable searches.