A protective sweep is a “quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.”

See Maryland v. Buie, 494 U.S. 325, 327 (1990). In Rozzo v. State, 75 So. 3d 409 (Fla. 4th DCA 2011), the court addressed an appeal from a trial court’s refusal to suppress evidence that was discovered during a warrantless search of Mr. Rozzo’s home. The appeal attacked the validity of his father’s consent to the search of the home, obtained after Mr. Rozzo was taken into custody outside the home and the officers performed a protective sweep of the home. The court decided that the sweep violated the Fourth Amendment and invalidated the father’s consent to the search. Police officers performed a protective sweep of the house where Mr. Rozzo lived with his parents, who were ordered out of the house and to remain outside of the house. The officers looked through any areas where someone could be hiding as they were reportedly concerned about officer safety and contraband inside the private home.

The home is where an individual enjoys the “highest reasonable expectation of privacy under the Fourth Amendment.”

Rozzo at 413 (citing Ruiz v. State, 50 So. 3d 1229, 1231 (Fla. 4th DCA 2011)). Indeed, physical invasion of the home is “the chief evil against which the wording of the Fourth Amendment is directed.” Id. at 413 (citing Payton v. New York, 445 U.S. 573, 585 (1980)).

Without consent or exigent circumstances, officers cannot enter a home without a warrant. Id. (citing Rebello v. State, 773 So. 2d 579, 580 (Fla. 4th DCA 2000)). Where a defendant is arrested outside of his or her home, a warrantless protective sweep of his or her home is allowed “only if the officers have a reasonable, articulable suspicion that the protective sweep is necessary due to a safety threat or the destruction of evidence.” Id. (citing Diaz v. State, 34 So. 3d 797, 802 (Fla. 4th DCA 2010); Klosieski v. State, 482 So. 2d 448, 450 (Fla. 5th DCA 1986) (warrantless entry of home to perform a protective sweep was not justified where suspects were arrested outside the house and “the police had no reason to believe that other individuals, dangerous to their safety, were inside the house”)).

The arresting officer must have both “(1) a reasonable belief that third persons are inside, and (2) a reasonable belief that the third persons were aware of the arrest outside the premises so that they might destroy evidence, escape or jeopardize the safety of the officers or the public.”

See Diaz at 802 (citation and internal quotation marks omitted); see also Mestral v. State, 16 So. 3d 1015, 1018 (Fla. 3d DCA 2009) (a “protective sweep” was improper because “the officers entered the residence as part of a routine practice and not on the basis of any articulable facts which would warrant a reasonable belief that there was any dangerous individual inside who posed a threat to those on the arrest scene”).

“Exigent circumstances exist where the occupants of a house are aware of the presence of someone outside, and are engaged in activities that justify the officers in the belief that the occupants are actually trying to escape or destroy evidence.”

See Lee v. State, 856 So. 2d 1133, 1138 (Fla. 1st DCA 2003) (emphasis in the original; brackets added). Concerns for officer safety based on generalizations about drug cases, instead of specific risks presented by the facts of a case, are not “exigent circumstances.” Lee, 856 So. 2d at 1139-1140.

In Rozzo, the officers’ own testimony established the illegality of their “safety sweep.” Their testimony showed that officers performed a sweep “as a routine practice out of generalized concerns regarding officer safety and the possible presence of contraband, not based on any articulable facts relevant to this particular case.” Rozzo at 415. The police lacked any objectively reasonable grounds to suspect that Mr. Rozzo’s parents were aware that their son was arrested outside the home, nor did the police have objectively reasonable grounds for believing that the parents posed either a safety threat or were trying to destroy evidence. There were no “exigent circumstances” to justify a warrantless entry for a sweep. Unlawful police action presumptively taints and renders any consent to search involuntary.  Diaz at 804.

Therefore, the father’s subsequent consent to the search of the family home was invalid. “The consent to search was nothing more than an acquiescence to a show of authority after the officers had ordered the parents out of the house to conduct a protective sweep.”

Rozzo at 416. Interestingly, the fact that the written consent form signed by the father advised him of the right to refuse the search was found insufficient to dissipate the taint of the illegal “safety sweep.” Because the state prosecution failed to dissipate the taint of the illegal protective sweep, the court held that the trial court committed error in refusing to suppress the evidence found in Mr. Rozzo’s home. See also Searcy v. State, 285 So. 3d 956, 957 (Fla. 4th DCA 2019) (“Rather, it appears to us that the officer’s testimony established that the sweep was based on the sort of generalized concerns that are insufficient to support a protective sweep of a home.”) (citing Rozzo).

A defendant may believe that once “consent” to search is given based upon concerns over officer safety and destruction of evidence, there is no defense against the admission of incriminating evidence seized during the resulting search.  The Rozzo case makes clear that a good criminal defense lawyer can invalidate even a signed consent to search form, where unlawful police conduct taints the “consent.”