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Court Upholds Protective Sweep in Felony Possession Appeal

By Robyn Hagan Cain on May 11, 2012 | Last updated on March 21, 2019

How long can cops prolong a protective sweep and how much evidence can they seize in the process?

The Fourth Circuit Court of Appeals examined the limits of the protective sweep last week in United States v. Laudermilt. (Brief thanks to for bringing this case to our attention.)

In the facts leading up to this case, five police officers responded to a domestic dispute report at Jordan Laudermilt's home in Wheeling, West Virginia after Laudermilt's girlfriend, Shannalee Kuri, had placed a 911 call to report that Laudermilt was threatening her and her family with a gun at his home.

When the officers arrived at the house, Kuri and her father informed the officers that Laudermilt was inside with a gun. Laudermilt -- unaware of the officers' presence -- intermittently exited the house to threaten to kill Kuri and her family. (Although the officers never witnessed Laudermilt with a gun, on one occasion he exited the house, knelt down out of view, picked something up, and returned inside.) The officers determined the best course of action was to seize Laudermilt the next time he exited the house without a firearm. When Laudermilt did so, the officers quickly moved in and took him into custody.

While four officers entered the home to perform a protective sweep, Laudermilt shouted to the two cops who were securing his arrest that his 14-year-old, autistic brother, J. Lee Pritt, was in the house. The cops quickly found Pritt, who was visibly upset. One of the cops asked Pritt if he knew where the gun was. Pritt walked to a pantry off the kitchen and pointed to a rifle sitting in plain view on a gun rack. While one deputy secured the rifle, two others continued to complete their sweep to determine if there were any other occupants in the house. The total sweep, from start to finish, lasted about five minutes.

Laudermilt, who had a previous felony conviction, was indicted for felony possession of a firearm as a result of the search. Laudermilt moved to suppress the firearm, and the district court granted the motion. The court agreed that a protective sweep of the home was authorized but that the "exigent circumstances" ended by the time the firearm was seized because "the residence had been secured."

Last week, the Fourth Circuit Court of Appeals reversed the district court, finding that the protective sweep was properly executed and no longer than needed to "perform cursory inspection of those spaces where a person may be found," and that seizure of the firearm was justified.

Here, officers decided that Pritt, a panicked, autistic child, should wait at his familiar home for his mother's return rather than being put through the potentially frightening ordeal of being taken to the police station. In order to deal with the unusual circumstance of providing for Pritt's safety and well-being, officers had to seize the firearm which they and Pritt knew to be present. The rifle, therefore, was admissible under the circumstances.

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