The Issue With Protective Sweeps by Law Enforcement

December 27th 2016

Kyle Jaeger

A story about an New York Police Department officer who allegedly posted a Snapchat of a family in handcuffs is drawing attention to a larger issue with how search warrants are executed.

According to CNN, a friend of the Santiago family, who claim they were mistakenly raided by officers, found images on Snapchat with captions like "Merry Christmas it's NYPD!" and "Warrant Sweeps it's still a party smh."

The family was reportedly handcuffed for three hours during the raid, as "an officer who watched them took pictures and allegedly posted them on Snapchat," CNN reported.

The officer who took the photos has been suspended and the incident is under investigation by the department's internal affairs division, CBS reported.

"Every time there's a knock on the door we're nervous, it messed us up," Santiago told CNN. "How did my mom's apartment become a situation they had to raid? Did they have any proof or cause to lead to all of this? I need answers, they got to do more than suspending."

The Snapchats may have inadvertently captured a policing tactic civil rights advocates say is far too common.

The problem with search warrants is that the guidelines dictating what qualifies as a constitutional search remain ill-defined.

In the case of the Santiago family, law enforcement officers were looking for a Hispanic male, who family members said they didn't know. After failing to find the individual, police slapped Kimberly Santiago with a citation for marijuana possession.

Police handcuffs.

What happened to Santiago's family is called a "protective sweep," an enforcement strategy that police can use under two conditions.

The first situation enables law enforcement to conduct limited searches in situations where an officer is executing an arrest warrant. If the arrestee is inside or near a home, police can search "spaces immediately adjoining the location where an arrest takes place" to prevent potential attacks, attorney John McCurley wrote for Nolo.com.

The second situation enables officers to conduct a search of a residence, but "only if they have reason to believe that there’s an actual danger of attack," McCurley wrote.

A policewoman.

The measures are controversial, according to some.

"It’s one of the most Draconian aspects of our criminal justice system, because it really does allow people who have done literally nothing wrong, or played a very minor role in some criminal act, to be punished or imprisoned on almost no evidence," Darius Charney, an attorney at the Center for Constitutional Rights, told The Intercept in July. "I think conspiracy is one of the most unfair bodies of law."

As Maren Messing, an associate at the law firm Patternson Belknap, wrote in a 2010 study, the U.S. Supreme Court established guidelines for protective sweeps in a 1990 ruling, Maryland v. Buie:

"First, the Court defined a protective sweep as being 'incident to the arrest.' Second, the Court required that a police officer be able to point to 'specific and articulable facts,' suggesting that the area to be swept harbored an individual posing a danger. Third, the Court limited the scope of the search to 'extend only to a cursory inspection of those spaces where a person may be found.' Finally, the Court held that the search is only appropriate when the officers suspect that there is an individual who poses a danger."

But upon examining the application of the past 20 years worth of protective sweeps, Belknap found that courts "have inconsistently delineated the boundaries of a valid protective sweep, more often to the benefit of law enforcement and the detriment of privacy rights."