It is well-established law that warrantless searches of a home are “presumptively unreasonable” under the Fourth Amendment. Payton v. New York (1980) 445 U.S. 573, 586.

However, it is also well-established law that law enforcement arresting someone in a house may perform a quick and limited “protective sweep,” warrantless search for their own safety when there is a reasonable suspicion that the house may contain a dangerous person. Maryland v. Buie (1990) 494 U.S. 325, 335. Such a search is similar to the limited pat down for weapons authorized during an arrest of a person.

The recently decided (July 20, 2012) case of People v. Craig Andrew Werner (2012 DJDAR 10051), out of Santa Clara County, set new limits on when an officer may perform a warrantless, “protective sweep” search. We believe the case is significant because its fact pattern arises quite often in cases we handle.

On February 19, 2010, police were summoned to the Campbell home of Mr. Werner because his girlfriend called police over alleged domestic violence. When police came to the house, Werner answered the door and stepped out to the front porch, where he was handcuffed and arrested. Werner then asked his roommate to go inside the house and retrieve his keys.

Police then accompanied the roommate into the home. While inside the home, police saw illegal fireworks and marijuana in plain view in Werner’s bedroom. The officers then performed a “protective sweep” and found more marijuana, marijuana plants and indicia of drug sales (a digital scale and a notebook with pay-owe information) throughout the house, including in Werner’s garage, where there were 45 marijuana plants.

Werner was then charged with three drug-related felonies, (1. Health and Safety Code