Unpublished Disposition, 863 F.2d 887 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 863 F.2d 887 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Phillip Daniel NELSON, Defendant-Appellant.

No. 88-3065.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 1988.Decided Nov. 16, 1988.

Before JAMES R. BROWNING, TANG and FARRIS, Circuit Judges.


Appellant challenges the denial of his motion to suppress a half pound of cocaine and some $54,000 seized from his home following a warrantless search. We conclude the district court properly upheld the search as a "protective sweep."

Police may make a "protective sweep" following an arrest where they believe there would be "a substantial risk of harm to the persons involved or to the law enforcement process" if they did not. United States v. Robertson, 606 F.2d 853, 859 (9th Cir. 1979). Such a risk is posed by the possibility an armed accomplice may attack the police or others if not apprehended, United States v. Gardner, 627 F.2d 906, 909-10 (9th Cir. 1980) (Kennedy, J.), or by the imminent danger that evidence will be destroyed. United States v. Driver, 776 F.2d 807, 811 (9th Cir. 1985). However, the police must "point to specific and articulable facts" which support their belief exigent circumstances existed. United States v. Whitten, 706 F.2d 1000, 1014 (9th Cir. 1983) (internal quotation omitted).

The neighbor who reported the burglary told police she had seen only one person enter appellant's house. When the police apprehended the burglar, he said he was alone. However, the police interrupted a burglary of the house in progress and had been informed earlier that a large number of weapons had been taken into the house. Considering the risk presented was that of exposure to serious injury or death, it was not unreasonable for the officers to refuse to rely on the casual observation of a neighbor and the self-serving statement of a burglar rather than make certain no accomplice remained in the house.

These facts fall between cases where police know an accomplice is unaccounted for, e.g., Whitten, 706 F.2d at 1014, United States v. Valles-Valencia, 811 F.2d 1232, 1236, (9th Cir.) amended, 823 F.2d 381 (1987), and cases like United States v. Spetz, 721 F.2d 1457, 1467 (9th Cir. 1983), and United States v. Basurto, 497 F.2d 781, 788-89 (9th Cir. 1974), in which the court characterized police fears of additional suspects as "speculative." We conclude the possible presence of a cache of guns and the fact that a crime was in progress were sufficient to justify a "protective sweep." Compare Reardon v. Wroan, 811 F.2d 1025, 1029-30 (7th Cir. 1987) (per curiam) (exigency shown as a matter of law by evidence police had been called to investigate a reported burglary, the occupants of the house were reasonably assumed to be away, and the house was unlocked) with United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298-99 (9th Cir. 1988) (no exigency where defendants arrested outside apartment building and no reason to believe persons, guns, or evidence located inside). "Courts must be careful not to use hindsight in limiting the ability of police officers to protect themselves as they carry out missions which routinely incorporate danger." United States v. Astorga-Torres, 682 F.2d 1331, 1335 (9th Cir. 1982) (quoting United States v. Coates, 495 F.2d 160, 165 (D.C. Cir. 1974)).



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3