Bybee's latest Opinion: "protective sweep"

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(as in warrantless search)

United States v. Lemus, __ F.3d __, No. 08-50403, 2009 WL 2999361 (9th Cir. Sept. 28, 2009), decision available here.

BYBEE, Circuit Judge: 

"Juan Hernan Lemus appeals the district court's denial of his motion to suppress incriminating evidence discovered during a warrantless search of his apartment following his arrest...

Even assuming that there were no articulable facts which would warrant a reasonably prudent police officer to believe that Lemus's apartment harbored an individual posing a danger to those on the arrest scene, we nevertheless affirm the district court's denial of the suppression motion. Because the area in which the police officers discovered the incriminating evidence 'immediately adjoin[ed] the place of arrest,' the officers were justified in conducting a search of that area without either probable cause or reasonable suspicion, Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), and anything in plain view that they discovered in the course of that search could be seized without violating the Fourth Amendment, Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)."

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