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United States District Court, S.D. New York

March 22, 2004.


The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge


On January 16, 2004, four days before trial was scheduled to commence, counsel for defendant Michael Smith submitted a motion to suppress the physical evidence seized by police Page 2 from apartment 4A at 3370 Decatur Avenue in the Bronx pursuant to a warrantless search. Although the Court's designated time to file motions had long passed, counsel for Smith claimed that, until she received the 3500 material from the government, she was unaware that adequate grounds existed for bringing it. The motion is based on lack of consent and lack of exigent circumstances for conducting the search. (Def. Smith's Mem. of Law dated Jan. 14, 2004, at 2.) In view of defense counsel's statements that she had lacked grounds for bringing the motion until receipt of the 3500 material, the Court adjourned the trial of the case and set January 20, 2004 for an evidentiary hearing. Additional testimony was taken on January 21, February 27 and March 16, 2004.


  The facts developed at the hearing show the following.

  Officers of the anti-crime unit of the 52nd Precinct in the North Bronx (the "Anti-Crime Unit") received a 1013 radio call in the late afternoon on January 9, 2003 of an officer holding a suspect and needing assistance at 3370 Decatur Avenue. (Hearing Tr. dated Jan. 20-21, 2004 ("Tr. I"), at 25-36, 124.) A number of members of the Anti-Crime Unit responded to the call and found off-duty police officer Villenueva in the lobby of the building holding a male under arrest. (Id. at 28-29, 53-55.) Villenueva explained he lived on the third floor of the building; that there had been an altercation upstairs; said he thought a woman was being raped in the hallway on the floor above his apartment and he showed the officers a magazine clip for a nine millimeter semiautomatic hand gun which he had recovered.*fn1 (Id., at 28-29, 124-126.) Page 3

  Officers Roman and Shiel then proceeded upstairs and observed blood on the stairway between the third and fourth floors; blood on the fourth floor landing and blood on the wall, proceeded up the stairs further and did a roof sweep, went back to the fourth floor and followed the blood trail to apartment 4A and concluded that someone in 4A needed medical attention. (Id. at 29-32, 126-27.) The police officers then knocked on the door with their fists, yelling "Police, open the door, is anyone all right?" (Id. at 32.) There was no answer. (Id.) They then did a canvas of the nearby apartments and learned that there had been an altercation in the hallway, screaming and scuffling and banging (id. at 34); then a door was slammed (id.) and a male had been seen wiping blood off the floor in front of the entrance to the apartment (id at 129). The officers tried to obtain information about the occupants of apartment 4A from the superintendent, including whether there might be someone with a handicap such as muteness, deafness or blindness. (Id. at 33, 69.) Other officers went up the fire escape to attempt to look into the apartment, but were unable to see anything as the blinds were closed. (Id. at 35, 70.) The officers concluded someone had entered apartment 4A and could be hurt or dying. (Id. at 34.) After knocking on the door continuously for five to ten minutes, stating it was the police, supervising Sergeant Benson concluded that could be an injured person or shooting victim inside that was not able to respond to the knocking or that it could be a home invasion crime in which an injured person or persons were being held in the apartment. (Id. at 102-05.) After conferring with the Commanding Officer of the Precinct, the supervisors on the scene decided to effect a forced entry. (Id. at 103.) Page 4

  Accordingly, believing an emergency situation existed, they called for an Emergency Services Unit ("ESU") to provide quick entry and secure the apartment.*fn2 (Id.) After approximately five to ten minutes, a unit of five to six ESU officers arrived with a hydro ram to pop the door open. (Id. at 104-05.) The unit of ESU knocked on the door and announced they were police and to open the door. (Id. at 214.) There was no response. (Id.) The ESU entered apartment 4A and shut the door behind them. (Id. at 36, 214.) The Anti-Crime Unit was kept out for the safety of themselves and of the ESU unit. (Id. at 217.) Out in the hallway, Officer Roman could hear ESU officers yelling, "get down, get down, let me see your hands, let me see your hands." (Id. at 36.) After two to three minutes had passed, an ESU officer came out into the hallway and said the apartment is secure.*fn3 (Id. at 36-37.) The Anti — Crime Unit officers, Roman, Shiel and Supervisor Benson and Officer Byrne then entered the apartment. (Id.)

  Officer Roman was one of the first members of the Anti-Crime Unit to enter the apartment.*fn4 He proceeded, with gun drawn, across the foyer, past the kitchen, saw Ziploc bags, proceeded past the bathroom door, observed no persons in the bathtub, came to the open door of the small bedroom, and pushed the door to make sure no one was standing behind the door. (Id. at 38.) Roman testified that any time he enters premises with which he is unfamiliar, he does a security sweep for his safety and for the safety of his team, regardless of whether ESU has done Page 5 a security sweep. (Id. at 38-40.) He has done so ever since ESU missed a suspect inside a sofa bed during their security sweep some eight years ago. (Id. at 39-40.) His supervisor, Sergeant Benson, also testified that, in these circumstances, he instructs his men first to do a security sweep even after ESU has conducted their own sweep, "just in case ESU has missed something because we don't actually observe their search." (Id. at 108-11.) His standing order is to search each room for a possible perpetrator before beginning an evidentiary search. (Id. at 110.)

  Officer Roman testified that, after passing the bathroom, he came to the small bedroom whose door was three-quarters open and pushed the door to the wall to ensure no one was behind it. (Id. at 79.) When he entered the small bedroom, he noted a brown shipping container, 3-31/2 feet tall, 2 1/2-3 feet in diameter in the corner of the room. (Id. at 41, 88; Government Exhibit ("GX") 224.) The container appeared big enough to hold a hiding suspect, so Officer Roman approached and looked inside it. (Tr. I at 44.) Looking in, he first observed the butt of semiautomatic handgun as well as a clear shopping bag containing what looked and smelled like marijuana. (Id.; GX 226, 224, 230.) He reached in to remove the gun and then as he was reaching to remove the shopping bag as well, he saw a second gun, a silver revolver, and removed it. (Tr. I at 45-46; GX 226, 117.) He then removed the clear plastic bag containing marijuana. (Tr. I at 46.) He also removed a baseball cap with blood stains on it. (Id. at 47; GX 227B.) After finding these items, he called for Sheil and Benson and advised them of what he had found. (Tr. II at 59.) A camera was called for and later pictures of the evidence were taken by Officer Shiel. (Tr. I at 50.)

  When Officer Shiel, who had been designated as the arresting office for the day (id. at 133), first entered the apartment, he noticed a "strong potent smell of marijuana" in the whole apartment. (Id. at 139.) The two defendants were handcuffed, one located on the left hand side Page 6 of the foyer besides the kitchen and the other directly in front of him in the living room area. (Id. at 130-32.) As Shiel looked past the first the defendant into kitchen, he saw a clear plastic bag of marijuana, empty Ziploc bags, and an economy box of containing four boxes of Ziploc bags. (Id. at 132-33; GX 205-206.) After looking into the kitchen, Shiel continued down the hall and noted blood droplets on the bathroom floor and near the bathtub. (Tr. I at 138.) At that point, Officer Roman called Officer Shiel into the small bedroom. (Id. at 139.) As he walked to the small bedroom, he noticed a nine millimeter round on the floor in the hallway. (Id.; GX 222.) Officer Roman then showed Officer Shiel the two handguns and the clear plastic shopping bag containing marijuana. (Tr. I at 140-41.) There was no furniture was in the small bedroom. (Id. at 141.)

  Officer Byrne also entered the apartment to do a "second clearing of the apartment."*fn5 (Id. at 254.) Upon entering the apartment, he walked down the hallway towards the large bedroom and encountered an open closet. (Id.) He reached the closet within seconds of entering the apartment. (Hearing Tr. dated Mar. 16, 2004 ("Tr. III"), at 5.) Byrne did not see another officer precede him to that area. (Tr. I at 257.) In the closet, Byrne saw a large quantity of marijuana and a large quantity of money on the top shelf. (Id. at 254-55; 259; GX 212.) The money was in a clear plastic bag on one end of the shelf and the marijuana was in a clear plastic bag at the other end of the shelf. (GX 212; GX 217.) Bryne also saw a black plastic bag on the shelf above the money. (Tr. I at 257.) Byrne then looked down and saw a suitcase on the floor and a clear plastic bag of marijuana behind it. (Id. at 255, 58-59; GX 219.) The closet contained no clothes or other items. (Tr. III at 5; GX 217-19.) Page 7

  The evidence was left in place for Officer Shiel to photograph. (Tr. I at 261.) On the shelves of the open closet, Officer Shiel saw a black plastic bag and a clear plastic bag containing U.S. currency on one side of the shelf (id. at 142-43; GX 212), and a clear plastic bag of marijuana on the other side of the shelf (Tr. I at 144; GX 217). He testified that the black plastic bag on the shelf was folded over, but left unsealed, untied and open (Tr. II at 38), with an extreme smell of marijuana emanating from it (Tr. I at 143). On March 16, 2004, Officer Byrne testified that he felt the plastic bag and its contents were consistent with a brick of marijuana. (Tr. III at 6-7.)


  The Fourth Amendment proscribes all unreasonable searches and seizures. It is well established that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment." Thompson v. Louisiana, 469 U.S. 17, 20 (1985) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). Under the "exigent circumstances" exception, "the police may make warrantless entries onto premises if they reasonably believe a person is in need of immediate aid." Flippo v. West Virginia, 528 U.S. 11, 14 (1999). Under the "security check" exception, law enforcement officers are entitled to undertake a security sweep incident to a lawful arrest. See Maryland v. Buie, 494 U.S. 325, 327 (1990). Under the "plain view" exception, "if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant." Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). These exceptions are purposely limited and "the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984). If the place Page 8 or object subjected to the warrantless search is one in which the defendant had a reasonable expectation of privacy, the burden of showing that the search fell within one of the exceptions to the warrant requirement is on the government. U.S. v. Kiyuyung, 171 F.3d 83, 84 (2d Cir. 1999). Once a defendant establishes a basis for a suppression motion, the government must prove that the search was proper by a preponderance of the evidence. See United States v. Mendenhall, 446 U.S. 544, 557 (1980).


  On March 16, 2004, the Court heard oral argument and ruled from the bench, holding that the Anti-Crime Unit had lawfully obtained access to apartment 4A, 3370 Decatur Avenue, Bronx, NY, under exigent circumstances, namely, that the Anti-Crime Unit had probable cause to believe that a person, possibly seriously injured, was being held against his or her will in apartment 4A. The Court also held that the evidence contained in the suitcase in the closet would be suppressed, but that the remaining evidence seized would not be suppressed, except for the contents of the black plastic bag about which the Court wanted to deliberate further. The Court's decision was based on the following conclusions of fact.

  There had been a loud altercation, scuffling, screams and yells from the fourth floor, two males had been seen fleeing the scene, and a magazine clip had been retrieved in the stairwell. There was a trail of blood leading up the stairs to the fourth floor and to the entrance of apartment 4A. The door to 4A had blood on it, as did the wall next to it. A man had been seen wiping up blood from the floor in front of the doorway to apartment 4A and then re-entering that apartment. The apartment was not known to be occupied by a deaf or mute person and no one had responded to repeated knocking, requests to open the door, and announcements that it was the police and not a possible assailant. Based on the foregoing, it was reasonable for the Anti-Crime Page 9 Unit to conclude that a crime had been committed in which some one was hurt, possibly so severely that the victim or victims could not come to the door, or was being held against his or her will in the apartment. This constituted exigent circumstances and the police were entitled to gain entry to rescue or to protect the victim from further harm and apprehend any kidnapper.

  Accordingly, the Anti-Crime Unit obtained the services of a unit of the ESU to gain entry and secure the premises. ESU forced the door with a hydraulic jack and five ESU officers entered, closing the door, yelled to those inside, "get down, get down, let me see your hands." The first bunker team of the ESU apprehended one defendant in the foyer, the second bunker team apprehended the second defendant in the large bedroom. (Tr. I at 214-215, 219.) The defendants were handcuffed and placed on the floor face down. (Tr. II at 45, 48.) Members of the Anti-Crime Unit estimated the length of time as two minutes, three to five minutes and about five minutes, at which time a member of ESU told them the apartment was clear and they could enter. Members of the Anti-Crime Unit testified that, for their safety and for the safety of other members of their unit, it was their uniform practice to do a security search when they entered the premises after ESU had forced entry and secured the premises. The supervising sergeant testified that this practice was followed because the Anti-Crime Unit was unable to see how ESU carried out its duties. Consequently, the officers of the Anti-Crime Unit were under orders to carry out a security sweep in the first minute or two after they entered apartment 4A. Upon entry, it became apparent that the apartment was extremely sparsely furnished and there was a pungent smell of marijuana. (Id. at 139, 186; Tr. II at 14, 15, 21, 35.) Officer Shiel almost immediately saw a large bag of marijuana and a large supply of Ziploc bags in the kitchen. Officer Byrne saw a large stock of U.S. currency and marijuana on a shelf of the closet. Officer Page 10 Roman, upon observing a cylindrical barrel in the corner of the bedroom, checked it out, gun drawn, as a possible hiding place; he then found a large bag of marijuana and two guns.

  The Court finds Officer Roman's search of the cylindrical barrel reasonable under the special facts and circumstances of this case. Under Maryland v. Buie, a police officer may, "as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." 494 U.S. at 334-35. Such a sweep is "not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found." Id. at 335. The sweep can last "no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Id at 335-36.

  A very short time had taken place between the time ESU entered the premises and Officer Roman's inspection of the cylindrical barrel. In that time, the two bunker teams of ESU had caused the defendants to respond to their orders to lie down and show their hands; had subdued the defendants and placed them in handcuffs; had removed one defendant from the large bedroom and caused the defendants to be seated in the apartment where the Anti-Crime Unit members saw them upon entry. Very little time had elapsed to accomplish these tasks and also search the apartment.

  Accordingly, the Anti-Crime Unit's rule of doing a precautionary protective sweep under these circumstances appear to this Court to be a reasonable precautionary practice taken by reasonably prudent police officers under the special circumstances of this case. There were grounds to believe that a gun had been invovled in the altercation and might be in the apartment. The protective sweep was carried out in close conjunction in time with an ESU sweep of the Page 11 premises and, while the ESU officers were still in the apartment (Tr. I at 112), carried out for protection of the Anti-Crime Unit officers' personal safety. There was no evidence that Anti-Crime Unit knew there were only two people in the apartment. Furthermore, it became immediately apparent on entry that the apartment was a drug spot and therefore guns might be on the premises. The Court takes judicial notice that policemen are very frequently put in grave personal danger and, consequently, take precautionary measures that to a laymen may seem unnecessary but laymen have not been exposed to the same dangers and, then, the Court cannot use their standards in judging the reasonableness of the policemen's actions. This is not a case where a reasonable police officer would conclude the premises were clearly secure and decide to do an evidentiary search in the guise of a protective search.

  The secondary evidence supports the Court's conclusion. Officer Roman conducted his patrol with his gun drawn (id. at 38); Officer Benson did not know whether any evidence would be seized inside the apartment (Tr. II at 31); Officer Shiel had to send out for a camera (Tr. I at 136). On entry several officers smelled a strong odor of marijuana (Tr. II at 15, 31); the apartment was sparsely furnished in the manner of a stash house for narcotics or drug spot (id. at 17); stash houses or drug spots are often guarded by men with guns.

  Furthermore, the cylindrical barrel was of a size that might have been overlooked by ESU in its security search. Officers might reasonably differ as to whether it was large enough to hold a person. Therefore, Officer Roman's decision to look inside when he concluded someone might be hiding there seems reasonable under all the circumstances. Accordingly, the Court finds that the evidence shows the guns and marijuana that Officer Roman removed from the barrel were contraband found in plain view in the course of a protective sweep. Page 12

  Similarly, the evidence found in the kitchen and the closet, which was evidence of criminality in plain view, were properly seized.

  Under the plain view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. Dickerson, 508 U.S. at 375. If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object — i. e., if "its incriminating character [is not] `immediately apparent,'" — the plain — view doctrine cannot justify its seizure. Id. (citations omitted). As the officers legitimately entered apartment 4A, all evidence that they saw upon entering whose incriminating character was immediately apparent is admissible. The kitchen was clearly in plain view, visible to the officers as soon as they walked into the foyer. (Tr. II at 21.) Similarly, the closet was open and its contents were visible upon entering the apartment. (Tr. I at 260.) The evidence admissible under the plain view doctrine is the clear plastic bag of marijuana in the kitchen and the other tools of the marijuana trade (Ziploc bags, and scales, etc.); the nine millimeter round found in the hallway, and the evidence found in the closet: the clear plastic bag containing U.S. currency (GX 212) and the clear plastic bags of marijuana (GX 217) on the shelf and the clear plastic bag (GX 219) next to the suitcase on the floor of the closet.

  The suitcase and its contents are suppressed since the contents were not in plain view but required the suitcase flap to be moved in order for Officer Byrne to view the contents. (Tr. I at 262-63.) The black plastic bag was also found on the shelf of the closet above the U.S. currency. The black bag was not tied or sealed and had an extreme smell of marijuana emanating from it. Additionally, when handled, its contents appeared consistent with a brick of marijuana. See Dickerson, 508 U.S. at 376 ("[T]he sense of touch is capable of revealing the nature of an object Page 13 with sufficient reliability to support a seizure."). All of these factors could lead the incriminating character of its contents to be immediately apparent to the police officers involved. In view of the fact that there were no other contents to the closet near the plastic bag, the officers' testimony as to its strong smell, and Officer Bryne's testimony as to touch, the officers had reasonable cause to believe that it was contraband and to seize it. Accordingly, the black plastic bag found in the upper shelf of the closet and its contents are not suppressed.


  For the foregoing reasons, Defendant's motion to suppress is denied as to all items except for the contents of the black suitcase. Additionally, the evidence found on January 17, 2004 without a search warrant is also excluded. All other items are admissible.


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