Protective Sweep of Stairway Was Illegal

Police who entered an exterior stair­way to an apartment in order to arrest a man thought to be living there with his girlfriend violated the girlfriend’s Fourth Amendment rights and the Norfolk Cir­cuit Court suppresses evidence discovered during their “protective sweep” of the area; although the protective sweep was not invalid because the man’s arrest had oc­curred outside when he emerged from the apartment and approached a vehicle, it nevertheless was illegal.

Locked stairway

Defendant moves to suppress evidence of marijuana found in plain view when the officers entered her apartment. She claims she had an objectively reasonable expecta­tion of privacy in the stairway to her apart­ment, where officers reported they first smelled burnt marijuana. The common­wealth argues a protective sweep was jus­tified and, even if it wasn’t, defendant gave consent to search when she would not come into the hallway but asked the officers to come upstairs because she was wearing only her underwear and the officers told her she could not re-enter the apartment to get her clothes.

Here, the burning marijuana smell was not detected until after law enforcement breached the exterior door to the apart­ment. Defendant had a reasonable expecta­tion of privacy in the stairway and entry by law enforcement was a search for Fourth Amendment purposes.

Defendant had a subjective expectation of privacy in the stairway. Evidence showed she had changed the locks on her exterior door and kept her exterior door locked at times. Because her unit was the only up­stairs unit accessible from the stairway and because she presumably was the only one who had a key to her exterior door, de­fendant essentially converted the stairway into a private area. She also may have in­stalled a security camera outside her ex­terior door. There were blinds hung – ap­parently by defendant – on the stairway side of her exterior door that covered the large windows on the top half of the door, thereby blocking any public view into the stairway. Defendant also appeared to be storing personal property in the stairway outside of her interior door, further evinc­ing her subjective expectation of privacy in the stairway.

Defendant’s expectation of privacy was objectively reasonable, although this is a more difficult question. Defendant did not own the property but merely rented the upstairs apartment. The landlady testified that the stairway is not part of defendant’s leased property. Unlike a typical common area, however, the stairway – assuming defendant’s exterior door was locked – was not accessible by the public or by delivery personnel. Defendant was not permitted to change the locks, but the landlady tes­tified that other tenants could not access the stairway even if defendant had not changed the locks. She said only she, her husband and a maintenance man had keys, so access to the stairwell was no different than the access landlords and maintenance workers unquestionably have to private apartments, with advance notice.

Based on the totality of the circumstanc­es, the court finds defendant’s expectation of privacy in the stairway was reasonable.

Protective sweep

Police were not entitled to enter the stairway as part of a protective sweep of defendant’s apartment. A protective sweep may be conducted following an arrest that takes place just outside the home, if suf­ficient facts exist that would warrant a reasonably prudent officer to fear that the area in question could harbor an individual posing a threat to those at the scene.

Here, police lacked any information sug­gesting defendant was armed or danger­ous or that there were any weapons in the apartment. Defendant was not subject to any arrest warrants at the time of the al­leged protective sweep, and police did not know her identity or have any indication that she had a propensity for violence or criminal activity. The officers’ actions were not consistent with the urgency normally associated with a belief that the building being swept harbors an individual posing a danger to the officers.

Based on the totality of the circumstanc­es, the court finds the commonwealth failed to prove the protective sweep was appropri­ate.

Finally, defendant did not prove valid consent for law enforcement to conduct a protective sweep of her apartment. When police requested consent to enter the apart­ment, they already had obtained evidence against her as a result of the unlawful entry into the stairway. She was told she could not re-enter the apartment to dress. It appears she was detained at the time she provided consent, which weighs against the validity of her consent. Any consent given by defendant was tainted by the prior ille­gal entry through the exterior door to her apartment.

Commonwealth v. Shorter (Lannetti) No. CR 15-2978, July 27, 2016; Norfolk Cir.Ct.; Margaret P. Kelsey, Comm. Att’y Office; An­drew Protogyrou for defendant. VLW 016-8-086, 18 pp.