Arizona v. Fisher

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In May 2006, Mesa police responded to an aggravated assault call. Officers went to the apartment complex where Appellant Laquinn Fisher lived. Officers knocked and announced their presence. Appellant and two others came to the door. None had weapons, and all there were cooperative. Appellant matched a description given by the alleged assault victim. Despite having this information, officers thought further investigation was necessary because a gun used in the assault was still "unaccounted for. Without asking whether anyone else was inside, police entered the apartment to see if anyone else was there. Inside, officers smelled marijuana and observed open duffle bags containing drugs. After the sweep, officers obtained written consent from Appellant's roommate to search the apartment, and then seized the drugs. Appellant was charged with various crimes, including possession of marijuana. Appellant moved to suppress evidence of the marijuana that was seized. The trial court denied the motion, and a jury subsequently found Appellant guilty on the possession charge. The issue on appeal to the Supreme Court centered on whether the police lawfully conducted a protective sweep of a suspect's home when the suspect and the only other occupants were detained outside. The Court held that the protective sweep in Appellant's case violated the Fourth Amendment. The Court vacated Appellant's possession conviction, and remanded the case to the trial court for further proceedings.

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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) LAQUINN ANTHONY FISHER, ) ) Appellant. ) ) ) ) ) __________________________________) Arizona Supreme Court No. CR-10-0315-PR Court of Appeals Division One No. 1 CA-CR 08-0857 Maricopa County 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 ________________________________________________________________ THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for State of Arizona Phoenix 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. protective sweep violated the Fourth We find the 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 announced their presence, Fisher and two others came out. had a weapon and all three were cooperative. appearance matched the description given and None Fisher, whose by the victim, officers thought identified himself to officers as TA. 1 ¶4 Despite having this information, 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 officers to smelled see if anyone marijuana and else was observed present. open Inside, 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. motion, and a jury possession charge.2 subsequently The trial court denied the found Fisher guilty of the 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 the Article 6, Section 5(3) of Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) § 12-120.24 (2003). II. DISCUSSION 2 Before trial, the State dismissed including the aggravated assault charge. 3 the other charges, ¶7 The Fourth Amendment to the United States Constitution protects [t]he persons, houses, right of the papers, and searches and seizures. 3 people to effects, be secure against in their unreasonable 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 exceptions to the warrant requirement. recognized several Michigan v. Fisher, 130 S. Ct. 546, 548 (2009) (internal quotation omitted). ¶8 One such exception is the protective sweep, recognized in Maryland v. Buie, 494 U.S. 325 (1990). first 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 other cause spaces or reasonable immediately suspicion, adjoining the look in closets and 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. at 334. But articulable to facts justify which, a broader taken sweep, together Buie, 494 U.S. there with must the be rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors individual posing danger to those on the arrest scene. ¶9 an Id. Buie thus authorizes two types of limited warrantless searches. The first involves the area immediately adjacent to the of place 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 contrast, Fisher was inside detained his outside residence. his arrested until after the protective sweep.4 apartment Here, in and not 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 supported by specific and harbored an individual posing others. Buie, 494 U.S. at 327. have a articulable a reasonable facts danger to belief that the a home officers or 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 outstanding arrest fact that warrant owner was 6 not of storage accounted unit for who had justified 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 dangerous United have suspect States consent was v. not Taylor, to in 248 enter bed, F.3d bedroom as 506, and previously 514 (6th a known reported); 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 Davis, separate 471 F.3d valid 938, articulable 945 (8th facts); Cir. 2006) United States (listing v. 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. F.3d at 258. 424 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 nothing 264. Although indicated that there was there apartment who might use it. an was unaccounted-for a Id. person weapon, hiding in the 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, articulate specific the officers facts inside Fisher s apartment. in indicating this that case another could not person was The record does not reflect any attempt by the officers to find out how many people lived with Taz. Three Fisher identified description people, of unaccounted-for the including himself Fisher, matched and assailant. weapon, as in exited the Although Gandia, anyone else was inside the apartment. 8 the apartment. victim s there nothing was detailed still indicated an that Officers cannot conduct 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. States v. Leon, 468 U.S. 897, 908 (1984))). (quoting United 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 9 facts, and not mere 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: _____________________________________ Rebecca White Berch, Chief Justice _____________________________________ Andrew D. Hurwitz, Vice Chief Justice _____________________________________ W. Scott Bales, Justice _____________________________________ A. John Pelander, Justice 10

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