Protective Sweeps During A Medical Emergency: How Police Officers Don’t Have Carte Blanche Rights To Search Your Home When You Are Down And Out

“Help! I’ve fallen and I can’t get up!”  Remember that television commercial?  Poor old little lady on the ground trying to reach for the phone but she just can’t find the strength to pull herself up.  Thank God she had that little red button from Life Line around her neck to call someone for help.  The product is still only $19.99 for the first twenty callers.  Hurry as supplies are limited.

Now take the above scenario, but replace the little old lady with a heroin addict who just overdosed and add an overzealous police officer looking for any excuse to search a home.  That, my friends, is the story behind State v. Levengood, 2016-Ohio-1340.

In Levengood, Galen Levengood was found unresponsive on the kitchen floor of his apartment by his roommate Sierra Burger.  Being a decent roommate, Burger called 911 for medical help.  New Philadelphia Police and E.M.S. responded.

Patrolman Clark arrived on scene a short time later and found E.M.S. working on Levengood.  Ptl. Clark testified that he could see into the kitchen but not into any bedrooms.  At that point, Ptl. Clark decided to do a protective sweep of the residence for the safety of the officers and E.M.S.  The purpose of the protective sweep was twofold according to Ptl. Clark.  Specifically, Ptl. Clark wanted to determine whether anyone else was in the apartment 1) who might pose a threat to the officers and E.M.S. and 2) who might be injured.  Ptl. Clark proceeded to look anywhere in the apartment a person might be found.

While walking around the apartment and walking into every bedroom, Ptl. Clark observed a brown powdered substance on a counter in the bedroom by a couple of needles.  Turns out this brown substance was that black tar known as heroin.  And the crowd goes silent from shock and awe!

Alright, so good ole Levengood gets indicted and fights the case.  Mainly the whole searching of his apartment while he was hanging out with either God or the devil, or both, was complete bullshit according to Levengood.  The trial court agrees with Levengood and suppressed the heroin evidence.   Upset that they did not get their way, the state appeals the case.

The appellate court opens up with that Ptl. Clark’s warrantless entry into Levengood’s apartment was justified.  This warrantless entry is known as the community-caretaking/emergency-aid exception to the Fourth Amendment warrant requirement.  This exception allows police to respond to emergency situations where life or limb is in jeopardy. State v. Dunn, 2012-Ohio-1008.  Makes sense given that Levengood was definitely on his way to meet his maker when the cops showed up.

But what about that pesky protective sweep conduct by Ptl. Clark?  According to the U.S. Supremes, the Fourth Amendment permits a properly-limited protective sweep when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.  Maryland v. Buie, 494 U.S. 325 (1990).  The protective sweep, however, is limited to a cursory inspection of those spaces where a person may be found and lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.  Id.

Courts have used Buie to hold that mere suspicion that a weapon remains inside is insufficient for a protective sweep.  State v. Sharpe, 2008-Ohio-267.  Likewise, not knowing whether anyone else is there is an insufficient pretext because the need for protection necessarily implies that another person or persons are there. Id.  Faced with such doubts, and absent any reason to believe that other persons may be inside, officers must obtain a warrant before they conduct a search of a defendant’s house after a defendant’s arrest there. Id.

Based on Buie and Sharpe, the appellate court held that Ptl. Clark had no positive indication others might be present in Levengood’s apartment, and the fact that he didn’t know whether anyone else was present is not sufficient pretext to sweep the entire apartment.

Great victory for the Fourth Amendment!  Levengood, however, needs to get his shit together.  Heroin is a nasty drug and I hope he gets the help he needs to battle it.


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