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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 ...

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