State v. Fisher

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0315-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 08-0857
LAQUINN ANTHONY FISHER, )
) Maricopa County
Appellant. ) 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 Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Joseph T. Maziarz, Assistant Attorney General
Attorneys for State of Arizona

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. We find the

protective sweep violated the Fourth 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 and

announced their presence, Fisher and two others came out. None

had a weapon and all three were cooperative. Fisher, whose

appearance matched the description given by the victim,

identified himself to officers as “TA.”1

¶4 Despite having this information, officers thought

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 to see if anyone else was present. Inside,

officers smelled marijuana and observed open 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. The trial court denied the

motion, and a jury subsequently found Fisher guilty of the

possession charge.2 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 Article 6, Section 5(3) of the Arizona Constitution and

Arizona Revised Statutes (“A.R.S.”) § 12-120.24 (2003).

II. DISCUSSION

2
Before trial, the State dismissed the other charges,
including the aggravated assault charge.
3
¶7 The Fourth Amendment to the United States Constitution

protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures.”3 “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 recognized several

exceptions to the warrant requirement. Michigan v. Fisher, 130

S. Ct. 546, 548 (2009) (internal quotation omitted).

¶8 One such exception is the protective sweep, first

recognized in Maryland v. Buie, 494 U.S. 325 (1990). 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 cause or reasonable suspicion, look in closets and

other spaces immediately adjoining the 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.” Buie, 494 U.S.

at 334. But to justify a broader sweep, “there must be

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 danger to those on the arrest scene.” Id.

¶9 Buie thus authorizes two types of limited warrantless

searches. The first involves the area immediately adjacent to

the place of 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 inside his residence. Here, in

contrast, Fisher was detained outside his apartment and not

arrested until after the protective sweep.4 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 have a reasonable belief

supported by “specific and articulable facts” that a home

“harbored an individual posing a danger to the officers or

others.” Buie, 494 U.S. at 327. 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 fact that owner of storage unit who had

outstanding arrest warrant was not accounted for justified
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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 have consent to enter bedroom and a known

dangerous suspect was not in bed, as previously reported);

United States v. Taylor, 248 F.3d 506, 514 (6th 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 separate valid articulable facts); United States v.

Davis, 471 F.3d 938, 945 (8th Cir. 2006) (listing 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. 424

F.3d at 258. 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 264. Although there was an unaccounted-for weapon,

nothing indicated that “there was a person hiding in the

apartment who might use it.” Id. 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, the officers in this case could not

articulate specific facts indicating that another person was

inside Fisher’s apartment. The record does not reflect any

attempt by the officers to find out how many people lived with

Taz. Three people, including Fisher, exited the apartment.

Fisher identified himself and matched the victim’s detailed

description of the assailant. Although there was still an

unaccounted-for weapon, as in Gandia, nothing indicated that

anyone else was inside the apartment. Officers cannot conduct
8
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.’” (quoting United

States v. Leon, 468 U.S. 897, 908 (1984))). 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 facts, and not mere

9
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

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