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United States Court of Appeals for the Fourth Circuit Holds that a Protective Sweep may Continue Even After All Known Individuals in a Residence are in Custody if Additional Unknown Individuals May Yet Remain and Firearms are Missing

Jordan Loudermilt was arrested after police were dispatched to resolve a domestic dispute in which Loudermilt was known to have brandished a firearm.  After his arrest, Loudermilt explained to police that one person, his autistic brother, J. Lee Pritt, remained in the home.  Police conducted a protective sweep to find Pritt, to secure Loudermilt’s firearm and to see if there were any unknown individuals in the home.  Loudermilt argued that police should not have continued a protective sweep after finding Pritt.  The United States Court of Appeals for the Fourth Circuit disagreed, finding that officers were entitled to complete the sweep to discover if any other individuals were present and to seize the firearm in order to provide for Pritt’s safety. 

On the night of February 27, 2011, in Wheeling, West Virginia, Shanalee Kuri and her sister-in-law placed a total of four 911 calls which reported that Kuri’s boyfriend, Jordan Loudermilt, was threatening Kuri and her family.  The Ohio County, West Virginia, sheriff’s department immediately dispatched Deputies Brooks, Costello, Moore, and Bise, as well as Sergeant Ernest to the scene.   As the residence was adjacent to West Liberty University, Sergeant Olejasz of the campus police force also responded.  As a result of prior police dispatches and complaints, the officers were familiar with the residence and its occupants. 

As officers approached the residence, a vehicle departed with two occupants, and one individual inside was “slouched down.”  Believing this to be Loudermilt, the officers initiated a stop.  Upon discovering that the individual was not Loudermilt, the officers quickly released the vehicle and proceeded to the residence. 

Outside the home, police found Kuri and her father who warned that Loudermilt was inside with a firearm.  Loudermilt, unaware of the police presence, intermittently went out on the porch, yelling that he would “kill” Kuri and “f**k them up.”  It was unclear if Loudermilt had a firearm on his person – the officers did not see one, but did see Loudermilt pick up an unidentified item.  After some time, the officers decided that they would wait for Loudermilt to exit the home again, and if he did not appear to have a firearm, they would seize him.  They successfully executed this plan and arrested Loudermilt. 

Four officers then entered the house to conduct a protective sweep.  Loudermilt yelled to the two arresting officers that his 14-year-old brother, J. Lee Pritt, was inside.  Loudermilt also explained that Pritt was autistic.  The sweeping officers quickly discovered a trembling and “panicking” Pritt who was on the phone with his mother, telling her of the police presence.   Deputy Costello attempted to calm Pritt, eventually sitting him at the kitchen table, where Deputy Bise was.  Deputy Bise then asked Pritt if he knew where the gun was; Pritt stood up, walked to the pantry, and pointed at a rifle which Deputy Bise immediately seized.  Other officers briefly continued the sweep to search for any other additional people who might be present.  The entire sweep was completed in less than five minutes. 

It was later revealed that the officers were unclear as to how many people were present in the home as they conducted the sweep.  Deputy Brooks testified that he believed, pursuant to the dispatch, that besides Loudermilt, two other adult males were in the home; police did witness two individuals driving away as they approached the residence.  Deputy Costello believed that only one other person was inside.  Deputies Moore and Bise had believed that only Pritt was inside with Loudermilt.  Sergeant Ernest testified that the number of occupants was unclear. 

Loudermilt was subsequently charged with violating federal firearms laws.  At trial before the United States Court for the Northern District of West Virginia, Loudermilt moved to suppress the firearm evidence against him.  Specifically, Loudermilt argued that by the time the firearm was seized, the exigent circumstances which had served as the basis for the sweep had ended.  Specifically, after his arrest and the discovery of Pritt, police officers had all individuals in custody or under police control, and thus there was no exigent circumstance to justify proceeding with a warrantless search. 

The district court concluded that a protective sweep was initially authorized under Maryland v. Buie, 494 U.S. 325 (1990), but that Buie did not permit officers "to seize the firearm after the residence had been secured and the protective sweep had ended."  According to the district court, since Loudermilt told officers that only Pritt was inside, once Pritt was under police control, the exigent circumstances had ended and police should not have continued the warrantless protective sweep.  Consequentially, according to the district court, police violated Loudermilt’s Fourth Amendment rights by continuing to sweep even after all known parties were accounted for.

The Government appealed to the United States Court of Appeals for the Fourth Circuit, which reversed the ruling of the district court. 

As the court of appeals explained, “[o]ne ‘well-settled’ exception to the [Fourth Amendment’s] warrant requirement is a ‘protective sweep’ under Buie.  United States v. Jones, 667 F.3d 477, 482 (4th Cir. 2012).  When police officers make an arrest at a home, they are entitled to perform a further ‘protective sweep’ of the house when they have ‘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 a danger to those on the arrest scene.’  Buie, 494 U.S. at 334.  ‘This standard is an extension of the doctrine that permits a police officer to pat down an individual for concealed weapons upon a reasonable suspicion that the individual might be armed, provided that the officer’s belief is grounded in “specific and articulable facts.”’  United States v. Martins, 413 F.3d 139, 149.”

“A protective sweep is limited to ‘a cursory inspection of those spaces where a person may be found’ and should last ‘no longer than it takes to complete the arrest and depart the premises.’ Buie, 494 U.S. at 335–36.”  The court of appeals added that a protective sweep may continue only as long as necessary to “dispel a reasonable suspicion of danger.”

Applying this framework, the court of appeals found that the protective sweep as it was executed was appropriate.  Officers were confused about how many individuals might be inside the residence, as the dispatch call had indicated that several adult males could be inside.  The fact that officers witnessed two individuals drive off – one of whom appeared to be attempting to avoid police detection – bolstered the reasonableness of an assumption that more people were inside.  Loudermilt himself stated that at least Pritt was inside, partially justifying the initiation of the sweep.  Although Loudermilt had not declared that anyone else was indoors, officers were not obliged to simply accept his word that only Pritt remained in the home and were free to continue a sweep even after collecting Pritt.  Furthermore, all parties agreed that there was a firearm in the residence which was unaccounted for.  Under these circumstances, where there was certainly a firearm unaccounted for and possibly other people in the home, it was justifiable for the police to continue with a protective sweep until they reasonably believed the area to be secure.  The district court failed to "recognize that unaccounted-for third parties with access to firearms may present a grave danger to arresting officers.”

The court of appeals further found that even if the protective sweep should have stopped after officers discovered Pritt, the seizure of the firearm was justified.  Officers decided that Pritt, a panicked, autistic child, should wait at his familiar home for his mother’s return rather than being put through the potentially frightening ordeal of being taken to the police station.  In order to deal with the unusual circumstance of providing for Pritt’s safety and well-being, officers had to seize the firearm which they and Pritt knew to be present. 

Accordingly, the court of appeals reversed the district court’s ruling on the suppression motion and remanded the case for further proceedings. 

The full text of this case, United States v. Loudermilt, can be found here. 

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