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Exigency – “Protective Sweep” as Incident of Destruction of Evidence

State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09
For Lee: Robert E. Haney

Issue/Holding: Police investigating complaint of drug dealing were entitled to enter apartment and conduct “protective sweep” when they saw, through the open front door, clear evidence of drugs:

¶13      The officers who presented themselves at Lee’s front door were investigating a complaint of drug activity at Lee’s address. After gaining entry to the common area of the building by virtue of the consent given by the occupant of the downstairs unit, [7] they came upon the open front door of Lee’s apartment, with drugs in plain view inside. Officer Scott Iverson testified that the door to the apartment was “wide open” at a ninety degree angle. He stated further that “[w]e yelled Milwaukee police and there was no answer and we did it again….” Iverson also testified that “[w]e did a protective sweep to make sure there wasn’t anybody in there.” Officer Phillip Simmert, who responded with Iverson to Lee’s residence, testified that after the officers received no response when they announced their presence, they “cleared the unit to make sure nobody was hiding, [sic] jump out on us.”

¶14      We conclude that these facts would allow a reasonable police officer to believe that entry into Lee’s apartment in order to perform a protective sweep was necessary due to a potential threat to the officers’ safety. In light of the wide open door, the officers could reasonably believe that someone was likely inside. People do not customarily leave the front door to their residences open when they leave, especially when illegal narcotics are easily seen through the open door. The officers announced their presence and received no response. From this, the officers could reasonably believe that persons inside the apartment were aware that police officers were outside the open door, that controlled substances and other evidence of criminal activity were visible to the officers, that the occupants were the subject of police suspicion, and that a raid may be imminent. The officers could also reasonably believe that the occupants were, under these circumstances, nervous and agitated, and would take the steps necessary to evade apprehension.

¶15      Further, the officers could reasonably believe that the occupants were connected with drug activity and may be dangerous. Felony drug investigations may frequently involve a threat of physical violence and the likelihood that evidence will be destroyed. …

Protective sweep doctrine, in other words, extended beyond incident-to-arrest to destruction-of-evidence context. State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997), distinguished, ¶¶17-19: Kiekhefer possessed a large quantity of drugs, minimizing the potential for evidence destruction; and, there was no indication he was aware of the police presence, minimizing the potential threat to their safety.


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