Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

This question comes from an officer in California. Detectives went to a suspect’s home with an arrest warrant, got consent from the father, found a shotgun, and then the father revoked consent and told them to get out. They stayed and kept looking.

Hello my friends, attorney Anthony Bandiero here bringing the roadside chat. This question comes from an officer in California. Essentially the question is, when can you do a protective sweep when you have an arrest warrant? So that’s in essence what’s going on.

Let me read you some background. Detectives go to a suspect’s residence with a Ramey arrest warrant. Now in California they call them Ramey arrest warrants. Basically it’s a mechanism to bypass the district attorney and go straight to the judge and get an arrest warrant for a person. Whatever your state calls it, this is essentially an arrest warrant. And so there are rules that I’m going to teach you about when you can execute an arrest warrant, and then we’re going to talk about protective sweeps.

So detectives go to the residence with an arrest warrant, with the intent to locate the suspect, arrest him, and serve him with an emergency protective order. The suspect’s father answers the front door and says the suspect is not home. Officers ask the father for consent to search the residence to make sure the suspect is not inside. The father gives consent to search the residence.

In the midst of the search of the suspect’s bedroom, officers find a loaded shotgun underneath the suspect’s bed. The officer sees the gun. Pursuant to the emergency protective order, the father contemporaneously changes his stance. He says you know what, I want you guys out, and demands that the officers leave the suspect’s room, reminding the officers that the suspect is not home and that they do not have permission to search his belongings, and to get out of the house.

The officers do not leave right away and continue to search the bedroom for the suspect. The officers checked for more guns in the suspect’s room and then checked more rooms and the garage for the suspect on the way out of the residence.

Under what authority can the officers continue their search after being told to leave and the consent was revoked? Can the officers stay? Can the officer say the remaining search of the residence was a protective sweep based on finding a loaded gun and the father’s change in behavior after locating the gun in the suspect’s bedroom? Was this reasonable? Did the officers have reasonable suspicion the suspect and others may be in the house, hence the continued sweep?

Okay, we’ve got a few moving parts.

What are the three requirements to execute an arrest warrant at a home?

Let’s first establish executing an arrest warrant. Officers can execute an arrest warrant when they have three conditions met.

Number one, a valid arrest warrant. Well, that’s clear here, the officers got the arrest warrant from the judge.

Two, the residence is the suspect’s domicile. In other words, you cannot serve an arrest warrant at a third party’s home. That would violate the third party’s rights. That’s not what’s happening here, so it’s very clear that this person lives there. The father is saying he’s not home and so forth.

And three, at the time of execution officers have a reason to believe the suspect is home at the time.

So we definitely have the first two. We have a valid arrest warrant, we have the domicile. And do we have a reason the suspect is home?

What counts as a reason to believe the suspect is home?

Usually we want to see something that indicates to us that the person is presently home. Things like the guy’s car is in the driveway, the neighbors saw him home, you have suspicious behavior. Like the mom opens the door or the father opens the door and only will crack it so much to the police and say no, he’s not here. Stuff like that usually indicates to us that they’re probably hiding him.

We don’t really have anything in the facts to say that the person is at home.

I have seen some other cases where courts are very lenient on this issue. One court said that the mere fact that this is a domicile, especially depending on what time at night and so forth, gives us reason to believe that he’s currently home. Like that’s just logical, that you can assume that he’s home.

I wouldn’t go that far. I wouldn’t want to go to court and the defense attorney asks the cop, hey, did you have any reason to believe he was home at the time, and he’s like no, but he could be. I don’t like stuff like that. Let’s have a reason.

But either way the father allows the police in. So far so good. We find the gun and then the consent is revoked.

Well, look, I see some problems here. Because unless you have a reason to believe that the person is present, then I don’t really think that the arrest warrant keeps you in the home. So that’s my concern.

Can officers search for more weapons after finding one?

Now you have the weapon. Can you search for weapons? The answer is no, in my view, because you would need exigency for that. You need some reason to believe that you are in danger or somebody else is in danger.

The protective order of course allows you to seize the firearms. They got the shotgun in plain view, there’s no problem with the shotgun. But if you’re going to continue searching the rest of the residence, you need exigency for that, because you don’t have a search warrant. You only have an arrest warrant.

And this idea is also backed up by a case called Caniglia v. Strom, U.S. Supreme Court 2021, where the court reminded us that just because you have weapons involved in your investigation, you cannot seize those weapons as a matter of best practice. You cannot go into somebody’s home and just enter the home and search for weapons as a matter of best practice. You have to have a presently imminent or immediate threat.

I don’t think you have that here. The father is not threatening the cops and so forth. He’s just kind of mad, it seems like, that now the cops are grabbing this guy’s stuff and maybe searching. I mean, searching under the bed seems fine, I think that’s plain view. But the father just wants to revoke his consent, which he can do.

So we’re clear on no searching for weapons unless you have some form of exigency. I don’t see that here.

Does a father’s change in behavior create reasonable suspicion for a sweep?

And then calling it a protective sweep. I would want to see a reason why. I don’t see a reason why here, why the cops actually do believe the guy’s home. Some courts will probably give a little leeway here, so it may not be so black and white.

But I think the best thing to do at this point is to probably exclude the father from the home and shut it down. Go get a warrant now for more weapons, since you already found the shotgun, to shut down for more weapons. That’d be the cleanest way to do it.

Or again, if you can tell me any reason why you think that the guy could be there. I think he’s implying that it’s the father’s changing behavior. I don’t think that’s indicative that the guy’s in the house. It just means that the father now realizes that cops are finding evidence to use against the son, and he doesn’t really want to do that right now. He feels like that’s not in his son’s best interest. I don’t think that tells me, personally, that that means that the guy’s there. I mean, the cops were already in the room and didn’t find him.

So that’s my take on it.

What about checking the garage and other rooms on the way out?

While leaving the house, going to look in the garage and the other rooms, again seems problematic to me, because of the reasons I stated. And that’s kind of my feedback on the case.

There are not a lot of black and white answers here, because again, courts may allow you to be in the home anyway even without the father’s consent. But that’s not what I would teach. I would want to know, at least give me a reason why you think that the person is home at the time.

The short version

  • Officers can execute an arrest warrant at a home when three conditions are met: a valid arrest warrant, the residence is the suspect’s domicile, and at the time of execution officers have a reason to believe the suspect is home.
  • You cannot serve an arrest warrant at a third party’s home. That would violate the third party’s rights.
  • Some courts are very lenient on the reason-to-believe-he’s-home question. I wouldn’t go that far. Let’s have a reason.
  • Unless you have a reason to believe the person is present, the arrest warrant does not keep you in the home.
  • Can you search for more weapons after finding one? The answer is no, in my view, because you would need exigency for that.
  • The shotgun in plain view is no problem. Continuing to search the rest of the residence is the problem.
  • You have to have a presently imminent or immediate threat. The father being mad is not that.
  • A protective sweep needs a reason. A father revoking consent after police find evidence against his son does not tell me the suspect is in the house.
  • The cleanest move: exclude the father from the home, shut it down, and go get a warrant for more weapons.
  • There are not a lot of black and white answers here. Courts may allow you to be in the home anyway. But that’s not what I would teach.

Related from Blue to Gold

This article is an edited transcript of Roadside Chat Ep. #178. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.