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Media > Newsletters > Law Enforcement Bulletin > September 2015 > State v. Foster 2015 Ohio 3401

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State v. Foster 2015 Ohio 3401

Question: Are officers permitted to search any area for evidence of criminal activity while conducting a sweep of a residence for possible intruders?

Quick Answer: No. Officers may only search areas in which an intruder may be hidden.

Facts: Officers responded to an alarm call at a residence to find the front door slightly ajar. Officers entered the home to check for intruders and once inside smelled raw marijuana and saw paraphernalia in plain view. They continued their sweep in a bathroom where they observed a shelf that was deep enough to conceal a person. Officers checked the shelf and found a Crown Royal whiskey bag and a loosely tied plastic grocery bag. Officers opened the grocery bag to discover crack cocaine. After this discovery, they obtained a warrant to search the house. At suppression, the officers admitted the bag was not large enough to contain a person and that they could not see the bag’s contents without opening it. The court upheld the initial entry in to the home to search for intruders, based on exigent circumstances. However, the appellate court ruled the evidence found in the bags should have been suppressed as the items were too small to contain a person and the bags had to be opened to view the contents.

Keep in Mind: As a general rule, officers are permitted to conduct protective sweeps inside a residence; however, the scope is limited to only those areas where a person may be concealed. If probable cause exists to search further, officers should obtain a warrant before doing so.