Legal Writing Assignment — V














Relief Requested


The defendant hereby moves the court for an order suppressing all evidence seized by law enforcement on January 1, 2009.  Defendant complains that her contact with law enforcement in this case occurred without her consent and without legal justification in contravention of her constitutional rights.

Statement of Facts


At 11:30 on Thursday evening, January 1, 2009, Jill Manheim entertained friends on her property.  Ms. Manheim, Mr. Tolbert, and another woman were socializing in an outbuilding near Ms. Manheim’s main residence.  Neither Ms. Manheim, nor her two guests, has any recorded violent history.  One of her guests, Darrell Tolbert, had an arrest warrant for noncompliance, a nonviolent crime.  Mr. Tolbert resided in one of the several outbuildings within fifty feet from the main residence.  Consequently, the arrest warrant permitted law enforcement agents to enter Ms. Manheim’s property.  On the above date, four officers executed the arrest warrant. Parking on the main road at the entrance of the property, three of the four officers quietly walked up the driveway. Upton Rp. at 22.  The officers did not have a search warrant.

The three officers were on the premises on previous occasions and have never seen evidence of weapons or drugs on the property. Murray Rp. at 18, Upton Rp. at 22, Hannahan Rp. at 50.  On their way to the main residence, officers Murray and Hannahan heard voices speaking inside a shed. Cite. The shed is within fifty feet from the main residence. Cite. The officers waited outside the shed eavesdropping on the occupants’ conversations. Hannahan Rp. at 40. The officers did not hear any mentioning of money, weapons, or threats to officer safety. Murray Rp. at 15, Hannahan Rp. at 47. Officer Hannahan testified he heard laughing and friendly conversations, perhaps even partying. Id.  After a while, Mr. Tolbert exited the shed and the officers ambushed him. Cite.Ms. Manheim and her guest, hearing a commotion, slammed the shed door. Cite.Officers Murray and Hannahan, the two closest to the shed, testified Ms. Manheim or her guest locked the shed. Murray Rp. at 8, 17, Hannahan Rp. at 47. Upon subduing Mr. Tolbert outside the shed, they handcuffed and searched him.  Murray Rp. at 7.  Mr. Tolbert did not carry any weapons on his person.  Cite. All officers testify that Mr. Tolbert is in their custody before ordering Ms. Manheim outside of the shed. Murray Rp. at 8, Upton Rp. at 24, Hannahan Rp. at 49. Without provocation.

Officer Upton, who was on the other side of the shed, ran to the shed after hearing the ambush.  He saw and heard the people enter into the shed.  Upton Rp. at 23.  Officer Hannahan ordered Deputy Upton to ”watch the shed.” Upton Rp. at 24. Despite the order, Officer Upton drew his gun and ordered Ms. Manheim and her guest out of the shed.  Confusedly, Ms. Manheim exited the shed.  Even though there was an officer available for back up, no officer felt threatened enough to call him.  According to Hannahan and Murray’s testimony, the conversation they overheard possibly involved drugs, not violence. (Officers testified they heard ”ounces,” ”grams,” and a location). At no point, either in the shed or outside, did Ms. Manheim make any threatening movements or communication.  Yet, the officers believe she was a threat to their safety. After they seized her, The Officers searched her person and the shed and found no weapons. Murray Rp. at 11, 12.

Issue Statements


Under the Fourth Amendment of the U.S Constitution and Article 1 §7 of the Washington Constitution, did the officers perform an unlawful protective sweep when they: (1) ordered Ms. Manheim out of the shed even though it is not immediately adjoining the area of arrest; (2) ordered Ms. Manheim out of the shed subsequent to securing Mr. Tolbert; (3) ordered Ms. Manheim out of the shed without hearing conversation about money, violence, or weapons; (4) ordered Ms. Manheim out of the shed even though she closed herself inside the shed?





The Fourth Amendment of the United States Constitution and Article 1 § 7 of the Washington Constitution prohibits unreasonable seizures.  Both constitutions promote the protections of persons and their property.  Only in extreme circumstances should these protections be ignored.  To this end the courts have developed ”jealously and carefully drawn” exceptions to these fundamental constitutional protections. State v. Smith 165 Wn. 2d 511, 199 P.3d 386 (2009). One such exception is the protective sweep.

The scope of a protective sweep is limited to a perfunctory visual inspection of areas where a person may be concealed or from where an attack can be launched. Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990).  If the area immediately adjoins the point of arrest, the police need not justify their actions by demonstrating a concern for their safety. Id. at 334. However, when the protective sweep extends beyond this immediate area, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id.

  1. The officers’ evidence should be suppressed because their protective sweep was in an area not immediately adjoining the area of Mr. Tolbert’s arrest.

The officers executed their arrest warrant outside a shed far from the main residence; the closed shed, which housed Ms. Manheim, does not immediately adjoin either the arrest area or the main residence.  The State in Hopkins conceded that a shed is not an immediately adjoining area to an arrest that occurred outside of the shed. State v. Hopkins, 113 Wn. App. 954, 55 P.3d 691 (2002). (The arresting officer saw the defendant enter and exit a shed.  The officer then arrested the defendant outside of the shed and searched the shed and nearby trailer for individuals and weapons.  The court ruled the search exceeded the scope of the protective sweep). The state provided no precedent and made no argument that the court should extend the protective sweep to other structures.  The prosecution should follow this strategy.

Ms. Manheim has multiple structures on her property.  Any structure could be used as a hiding place or a place to stage an ambush. Thus, if the states position, that this is an immediately adjoining area, would prevail, any structure on the premises could be searched.  The state and federal constitutions would not allow officers to search the entire property, especially those properties with several outbuildings, like Ms. Manheims.  Arrest warrants do not provide a license to search every outbuilding.  The state and federal constitutions protect Ms. Manheim from such egregious violations.


  1. The law enforcement officers’ evidence should be suppressed because the officers had no articulable facts warranting a possible danger to their safety.

Once the officers secured Mr. Tolbert, there were no articulable facts warranting a protective sweep. The court in Hopkins stated, ”[f]or purposes of a “protective sweep” of premises where a lawful arrest has been effected, a person who is under police control no longer poses a danger to officer security.” State v. Hopkins, 113 Wn. App. 954, 960, 55 P.3d 691 (2002). Although Mr. Tolbert resisted being handcuffed, once under custody, he no longer posed a danger to the officers.  Mr. Tolbert was the only individual to express resistance. Ms. Manheim exhibited no signs of violence.  Quite the contrary, she retreated inside the shed avoiding confrontation.

After securing Mr. Tolbert, the officers protective sweep ended[A1] .  According to the court in Boyer, the protective sweep must last no longer than is required to complete the arrest.  State v. Boyer, 124 Wn. App. 593, 601, 102 P.3d 833. Officer testimony stated they secured and arrested Mr. Tolbert before ordering Ms. Manheim out of the shed. Murray Rp. at 8, Upton Rp. at 24, Hannahan Rp. at 49.  The officer’s sole purpose for being on Ms. Manheim’s property was to arrest Mr. Tolbert, not to order people out of their homes[A2] .

There were no articulable facts suggesting Ms. Manheim had a violent history.  Courts have found that an officer’s previous experience with suspect is illustrative of whether officers can articulate reasonable fear[A3] . The court in Lemus looked to the arresting officer’s previous experience with the suspect, and through this experience, could reasonably infer the dangerousness of the suspect. U.S. v. Lemus, 582 F.3d 958, 964, ( Cir. 2009[A4] ).  In Lemus, the officer was familiar with both the suspect and his property.  The officer knew the suspect had a felony record, so when the officer saw a gun on the premises, he logically thought it would be illegal.  The three officers, in the present case, had been to the premises before and knew Ms. Manheim and did not associate any violent tendencies with her or her property.  They found no evidence that would lead them to believe there was a weapon on the premises.  Ms. Manheim has no felony record.

Since Ms. Manheim was sequestered in the shed, the officers knew exactly how many people were there, and those in the shed provided no evidence of violence, the officers lack credible facts that point to a threatening situation.  The Buie[A5] Court stated that a protective sweep is applicable only if the ”officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In[A6] Hoyos the suspect was wanted in connection with dealing large quantities of cocaine.  Furthermore, once the officers arrived on the scene, in Hoyos, several suspects were seen running into the premises, and the officers were not aware how many were in the house. U.S. v. Hoyos, 892 F.2d 1387,1395, 1989 U.S. App. LEXIS 2625 (1989[A7] ). In the present case, the officers testify that meth users can be dangerous, but there was no evidence that Ms. Manheim was a meth user.  The officers were there to execute an arrest warrant for a non-violent crime.  Unlike Hoyos, the officers kn[A8] ew exactly how many people were in the shed.  When the officers eavesdropped on their conversations, they thought they heard words used in drug dealings, but this does not justify the assumption that Ms. Manheim is a meth user prone to violence.  The officers heard laughing and friendly voices and no mention of money or violence.  The officers did not have a subjective fear that Ms. Manheim was dangerous because the officers never called for backup, two were subduing Mr. Tolbert while the other officer ordered Ms. Maheim out of the shed with no articulable fear of danger beyond his fellow officer telling him there were people inside and to watch the door.  Testimony of Ms. Manheim holding a wine bottle at what seemed to be a party, and putting her hands in her pockets on a cold night is not evidence that she posed a threat to the officers.[A9]


The courts have developed another recognized exception to the warrantless search requirement.  The exception allows law enforcement officers to search without a warrant when “exigent circumstances” justify the search. State v. Cardenas, 146 Wn.2d 400, 405, 47 P.3d 127 (2002).  Courts have articulated the following factors to determine whether exigent circumstances exist:

(1[A10] ) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) whether there is reasonably trustworthy information that the suspect is guilty; (4) there is strong reason to believe that the suspect is on the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the entry [can be] made peaceably. State v. Smith, 165 Wn.2d 511, 199 P.3d 386 (2009).

While a danger to the arresting officer or public can constitute an exigent circumstance, courts determine whether an exigent circumstance existed by looking at the totality of the situation in which the circumstance arose. Id at 518.  The review should be ”limited to facts known to the officers prior to the protective sweep.” U.S. v. Hoyos, 892 F.2d 1387,1395, 1989 U.S. App. LEXIS 2625 (1989).  The state need not prove every factor for the court to determine the existence of an exigent circumstance.  For the sake of a brief analysis[A11] , I will consider the escape element and combine the other applicable elements in the totality of circumstances portion of the argument.

  1. Ms. Manheim had no opportunity to escape the premises.

The escape exigency is not applicable in this case because Ms. Manheim was sequestered

in the shed, officers blocked the entrance of the shed, and an officer waited at the entrance of the property.  As noted in Smith, an exigency exists if the suspect would escape if not swiftly apprehended. State v. Smith, 165 Wn.2d 511, 518, 199 P.3d 386 (2009). The officers in Cardenas had surrounded the suspect and the only route of escape besides the front door was a window too small to exit.  State v. Cardenas, 146 Wn.2d 400, 403, 47 P.3d 127 (2002).  Similar to the facts in Cardenas, the shed had only one door, three officers surrounded the shed, and another officer waited at in the driveway.  Additionally, Ms. Manheim locked the shed door. Furthermore, officer Hannahan testified that Ms. Manheim wouldn’t have escaped. Hannahan Rp. at 51.

  1. The officers had no evidence to suspect Ms. Manheim posed a danger to their safety.

When examining the specific facts in this case, Ms. Manheim [A12] did not pose a danger to the

officers.  The courts examine the facts in the totality of the circumstances and [A13] determine whether: ”(1) the officer subjectively believes that there is an immediate risk to health or safety, (2) a reasonable person in the same situation would come to the same conclusion, and (3) there is a reasonable basis to associate the emergency situation with the place [or person seized].” State v. Gocken, 71 Wn. App. 267, 276-77, 857 P.2d 1074 (1993) quoted in State v. Ibarra-Raya, 145 Wn. App. 516, 522, 187 P.3d 301 (2008).

  1. Under the totality of the circumstances, the officers did not subjectively believe that Ms. Manheim posed an immediate risk to health or safety[A14] .

The officers on the scene could not subjectively believe their safety was threatened.

According to the court in Hoyos, the review must be limited to the facts the officers were aware of before the protective sweep.  The arresting officers in Ibarra suspected criminal activity but there was no basis for a reasonable person to believe the property needed to be searched.  They were called out to the scene to investigate noises coming from a usually vacant looking house.  Exactly like the arresting officers in Ibarra, the arresting officers in this case only had a thin suspicion of criminal activity.  They were on the premises to execute a noncompliance arrest warrant.  Furthermore, according to officer testimony, the conversations inside the shed were friendly in tone and did not mention weapons or violence.  All of the officers on the scene have been to the premises before, and there was no history of violence or weapons use on the premises.  Although the officers did not know the identity of the women inside the shed, the officers provided no concrete evidence that the women inside the shed were dangerous.  The officers rely on the assumption that meth users are unpredictable and dangerous, but there was no evidence that anyone inside the shed was a meth user.  [A15] If the officers believed there was a possibility that Ms. Manheim could be dangerous, the Smith court stated, ”a possible danger to the police…does not automatically cause exigency justifying a warrantless entry.” State v. Smith, 165 Wn.2d 511, 521, 199 P.3d 386 (2009).

  1. In the totality of the circumstances, a reasonable person would not have come to the same conclusion as the officers on the scene.

Ms. Manheim sequestered herself in a shed that was possibly locked; no reasonable person would, in the totality of the circumstances, believe she posed a threat to officer safety[A16] . The State must be able to ”point to specific, articulable facts and the reasonable inferences therefrom which justify the intrusion.” State v. Diana, 24 Wn. App. 908, 911, 604 P.2d 1312 (1979) In Smith, the officer’s saw a 1,000 gallon truck filled with toxic chemicals, the officers saw a rifle, the officers then saw the rifle was missing; these facts created an exigent circumstance.  Unlike that case, no evidence is available to justify that Ms. Manheim posed a threat.  No mention of weapons, money, or violence.[A17] Once the officers secured Tolbert, he no longer posed a danger to officer safety. State v. Hopkins, 113 Wn. App. 954, 960, 55 P. 3d 691 (2002). Deputy Upton was told only to ”watch the shed.”  Deputy Upton’s inferences drawn from the circumstances do not warrant an exigency exception to Ms. Manheim’s fourth amendment protections.

  1. In the totality of the circumstances, there is no reasonable basis to associate the danger Ms. Manheim ordering her out of the shed.

Deputy Upton ordered Ms. Manheim out of the shed because he allegedly feared for his

Safety, yet, if this were true, Deputy Upton would have called backup.  The only evidence of violence or threat was Mr. Tolbert’s behavior, and the officers had him in custody before ordering Ms. Manheim out of the shed.  The evidence points to Ms. Manheim being sequestered in the shed; the evidence points to Ms. Manheim having friendly conversations; the evidence points to no violent history on the property.  What the evidence doesn’t point to is Ms. Manheim as constituting a threat to officer safety.

Prayer for Relief

For these reasons noted above, this court should exclude the evidence because the officers retrieved this evidence while conducting an unlawful search.

Respectfully submitted this _____   day of _______, 2010