Constitutional Law - Eighth Circuit Permits Broad Protective Sweep during Execution of Arrest Warrant Inside Suspect's Home - United States V. Green

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Constitutional Law--Eighth Circuit Permits Broad Protective Sweep During Execution of Arrest Warrant Inside Suspect's Home--United States v. Green, 560 F.3d 853 (8th Cir. 2009)

The Fourth Amendment's proscription against unreasonable searches and seizures effectively limits the federal government's power to invade an individual's privacy. (1) Under certain circumstances, however, courts have deemed searches that protect a police officer or other government agent from danger to be reasonable. (2) In United States v. Green, (3) the United States Court of Appeals for the Eighth Circuit considered whether an officer exceeded the permissible scope of a protective sweep incident to arrest where the officer, in searching for confederates, seized incriminating evidence that came into plain view after the officer climbed onto a chair to examine the top of a large dresser. (4) The court held that the officer acted reasonably in protecting himself from danger, and therefore did not contravene the Fourth Amendment. (5)

State and federal law enforcement agents entered Fred A. Green's home to execute a warrant for his arrest, believing Green was inside. (6) Upon entering, officers immediately encountered and secured four men in Green's living room. (7) Shortly thereafter, United States Marshalls and Dallas police officers found and arrested Green in his garage. (8) Other officers who were not involved in the arrest, however, continued searching multiple areas of Green's residence. (9)

When an officer stepped into Green's master bedroom, he noticed a large dresser measuring 71" high, 68" wide, and 13" deep at the top. (10) Although the officer could not see anyone, he believed the space on top of the dresser could hide a person, so he climbed on a chair to investigate. (11) Instead of finding a person at the top of the dresser, the officer discovered a 6" depression revealing a MAC-10 9mm machine gun, a Derringer .410 caliber pistol and $13,644 in cash, all of which the officer seized. (12)

The United States charged Green with several felonies, including possession of a machine gun in furtherance of drug trafficking and being a felon in possession of a firearm. (13) Green moved to suppress the evidence found in the dresser on Fourth Amendment grounds. (14) The district court denied Green's motion despite concluding that an officer would have been able to see someone hiding on top of the dresser from the floor. (15) A jury subsequently convicted Green on all charges and the judge sentenced him to 548 months in prison. (16) Green appealed, arguing the police violated his Fourth Amendment rights because they exceeded the permissible scope of a warrantless protective sweep by looking into the depression on the top of the dresser. (17) The United States Court of Appeals for the Eighth Circuit affirmed, holding that the search was reasonable under the Fourth Amendment because officers must act quickly to protect themselves from danger, and if the officer reasonably believed a person could hide on top of the dresser, he was justified in taking measures to ensure no one was actually hiding there. (18)

Recent Fourth Amendment jurisprudence indicates courts will uphold a warrantless search or seizure as long as it is reasonable, despite earlier Supreme Court decisions requiring government agents to obtain a warrant for nearly every search or seizure. (19) This shift in constitutional jurisprudence stems largely from the ambiguous language of the Fourth Amendment itself: while the first clause undeniably requires that every search or seizure be reasonable, it is unclear whether the second clause limits the first or merely articulates that a warrant, if required, must be supported by probable cause. (20) Furthermore, the Fourth Amendment's historical underpinnings provide little insight in construing the uncertain text. (21)

The decision of Terry v. Ohio (22) perhaps best demonstrates the Supreme Court's interpretive move from strict adherence to the warrant requirement (subject to narrowly defined exceptions) to an open-ended reasonableness inquiry. …