KYCOA - Brown - Protective Sweep

Brown v. Commonwealth – COA, 2/14/14, reversing and remanding, to be published

Police received information that Appellant and two other men had assaulted a woman with a handgun and retreated to Appellant’s home.  Police also knew that Appellant had an AK-47 assault rifle inside the house.  Police went to the residence and ordered the men out.  The three men emerged with two women and informed the officers no one remained inside.  Officers conducted a protective sweep of the house and found guns, marijuana, and drug paraphernalia.  The Court found that the officers did not  have articulable information to reasonably believe someone remained inside the home.  A general concern that someone might still be in there did not justify the search.

Steve Buck represented Mr. Brown on appeal.  Chris Tracy represented Appellant in Fayette Circuit Court.

Contributed by Karen Maurer

KYSC - Brumley - Protective Sweep Search

Commonwealth v. Randy Brumley 

SCT, 11/21/13, to be published

The Court held that a “protective sweep” of Mr. Brumley’s trailer was not permitted under the Fourth Amendment and Section 10 of the Ky. Constitution where Mr. Brumley was already in custody, outside the trailer, when the officers made the decision to enter the trailer.  The fact that Mr. Brumley might be a gun owner mattered not.  “Brumley's rights under the Fourth Amendment cannot be diminished simply by exercising his rights under the Second Amendment.”  Neither did it matter that officers heard a noise from the trailer.  What is required for a Constitutional protective sweep is “facts reasonably demonstrating that Brumley's home harbored not just an additional individual, but rather an ‘individual posing a danger to those on the arrest scene.’"  The Court observed, “[The officers’]  primary objective of arresting Brumley without mishap having been achieved, an attentive departure from the premises with their prisoner would surely have been safer than an invasion of the home.”   

Shanda West-Stiles and C. B. Bates of the Columbia trial office represented Mr. Brumley before the circuit court and preserved this issue, and Emily Rhorer represented Mr. Brumley on appeal.  

Contributed by Karen Maurer