Sunday, September 27, 2009

Case o' The Week: The Maltese Falcon in San Diego, Fourth Amendment "Protective Sweeps"

It was a dark night in the City that Never Sleeps. It looked like Lemus was still living there, see? But if the copper remembered right, other family lived there too.

Could be just another Dashiell Hammett rag -- but it wasn't. It was United States v. Lemus, __ F.3d __, No. 08-50403, 2009 WL 2999361 (9th Cir. Sept. 28, 2009), decision available here.

Players: Decision by Judge Bybee, joined by Judges Gould and Rawlinson.

Facts: San Diego detectives had a history with Lemus, knew that he had been arrested with drugs and a drive-by shooting, and that he had cousins who had been arrested for violent crimes. Id. at *1. The detectives went to serve an arrest warrant at Lemus’s residence. Id. As they spoke with him he started to back through a sliding glass door of the apartment; the detectives seized him “before he could fully enter to doorway and retreat into his living room.” Id. at *2 (emphasis added).

Officers then went in (without a warrant) and “scanned” the house. Id. They saw what looked like the butt of a gun in a couch, lifted the cushion, and found a .9mm. Id. Lemus was charged with being a felon in possession. When the district court denied his suppression motion Lemus took a conditional plea and appealed.

Issue(s): “Juan Hernan Lemus appeals the district court's denial of his motion to suppress incriminating evidence discovered during a warrantless search of his apartment following his arrest.” Id. at *1.

Held: “Even assuming that there were no articulable facts which would warrant a reasonably prudent police officer to believe that Lemus’s apartment harbored an individual posing a danger to those on the arrest scene, we nevertheless affirm the district court's denial of the suppression motion. Because the area in which the police officers discovered the incriminating evidence ‘immediately adjoin[ed] the place of arrest,’ the officers were justified in conducting a search of that area without either probable cause or reasonable suspicion, Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), and anything in plain view that they discovered in the course of that search could be seized without violating the Fourth Amendment, Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).” Id. at *1.

Of Note: This opinion is exceedingly odd. The fact section is written in a colloquial style that borders on pulp fiction; sounds like the Ninth is channeling Sam Spade. Id. at *1-*2. Maybe this is an innovative new style for Ninth Circuit opinions, or maybe the case is an inside joke. Whatever it is, the “omniscient narrator” technique is a peculiar way to lay down a fact pattern in an important Fourth Amendment decision.

How to Use: Harmonize this: if the cops arrest you and pull you out of a car, and you’re under their control, a “protective search” of the car is unreasonable under the Fourth Amendment. Arizona v. Gant, 129 S. Ct. 1710, 1729 (2009). But if the cops arrest you and pull you out of the doorway of your home, and you’re under their control, the cops can still search your home without a warrant? Pity that Lemus wasn’t arrested in his car instead of his home– there’s more Fourth Amendment protections on four wheels, it appears.

Even worse, Judge Bybee takes pains to explain that the cops didn’t even need articulable facts supporting the belief that there was danger in the room searched. Id. at *4. Here, because Lemus was arrested in an area “immediately adjoining” the living room searched, “a limited search of that room was proper without either reasonable suspicion or probable cause as a protective search incident to arrest.” Id.

Worse still, the Court appears to have latched onto this theory despite the fact the government never argued it and instead pitched the search as a “protective sweep.” Id. at *4 n.2.

Beware of the Lemus hurdle when cops rummage around homes after doorway arrests – and anticipate heated factual disputes on what was in fact “immediately adjoining.”

For Further Reading: For an interesting history of the “search incident to arrest” theory and the ebb and flow of Fourth Amendment protections in this area since Chimel v. California, see Peter W. Fenton and Michael B. Shapiro, Search & Seizure Commentary, 33-JUL CHAMP 50 (July 2009), available here.

Image of Sam Spade from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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