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United States District Court, S.D. New York

June 18, 2004.


The opinion of the court was delivered by: WILLIAM PAULEY, District Judge


On December 23, 2003, a federal grand jury indicted defendant Edward Gandia ("Gandia") of one count of unlawful possession of a firearm, and on February 17, 2004, a superceding indictment was entered charging Gandia with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. ยง 922(g). Currently before this Court is Gandia's motion to suppress a bullet seized from his apartment by New York City police officers, a handgun and ammunition recovered during the execution of a search warrant, and Gandia's statement to the arresting officers that the bullet was "fake". For the reasons set forth below, Gandia's motion is denied.


  On April 28, 2004, this Court heard testimony from Gandia, Wilbert Morales, a New York City Police Department ("NYPD") Sergeant, and Colin Lawton, an NYPD police officer. After evaluating the demeanor and credibility of the witnesses, and considering the exhibits, this Court makes the following findings of fact.

  On November 28, 2003 at approximately 8:20 p.m., Sergeant Morales was on patrol with Officer Lawton and NYPD Officer Perez,*fn1 when they received a radio call concerning a dispute at Gandia's residence, 381 East 151st Street. (Hearing Transcript, dated Apr. 28, 2004 ("Tr.") at 4-5, 50-51.) The officers were notified that the dispute between the building superintendent and a tenant involved a firearm. (Tr. at 5, 51.) The person suspected of possessing the firearm was described as a male Hispanic wearing a yellow jacket and gray pants. (Tr. at 5, 51.) When the officers arrived at the building, they observed the defendant, who matched the description of the firearm suspect, and the superintendent, Pablo Suarez. (Tr. at 5-6, 19-20, 52-53, 78, 91.) Gandia and Suarez were arguing and screaming at one another. (Tr. at 55, 85.)

  Officers Perez and Lawton approached Gandia, while Sergeant Lawton spoke with Suarez. (Tr. at 6-7, 20, 53-54, 84.) Officers Perez and Lawton frisked Gandia for weapons, but found none. (Tr. at 53, 84-85.) Gandia indicated to the officers that he had argued with Suarez, and, before the officers could question him about firearms, he volunteered that he did not have a gun. (Tr. at 53.) At the same time, Sergeant Morales spoke with Suarez, who indicated that while he was taking out the garbage, Gandia approached him and called him a "rat" for speaking negatively about him to the landlord. (Tr. at 6-7, 21, 57.) Suarez also told Sergeant Morales that during the dispute, Gandia began to pull an object from his waist area, which he believed was a gun. (Tr. at 7, 21, 45, 65.) Suarez stated that he ran into his apartment and that Gandia starting banging on his door, saying "something to the effect that I don't care if you call the cops, I'm still going to get you anyway." (Tr. at 7, 91.)

  After taking Suarez's statement, Sergeant Morales joined Officers Lawton and Perez, who were speaking with Gandia. (Tr. at 7.) Gandia stated that he lived alone in apartment number 16 on the third floor, and the officers asked him if they could go into his apartment to continue their conversation. (Tr. at 7-8, 15-16, 30, 54-55, 78-79, 85-86.) The officers testified that they wanted to discuss the dispute with Gandia in his apartment because it was raining and because they wanted to separate Suarez and Gandia. (Tr. at 8-9, 27-28, 54-55, 85.) Gandia consented, opened his apartment door with his key, and led the three officers in. (Tr. at 8-9, 29-30, 55-56, 85-86, 92-93.)

  The first room Gandia and the officers entered was a small kitchen. (Tr. at 9-10, 29, 56, 79.) The kitchen opened to the living room through an open door frame. (Tr. at 10-11, 30, 58, 80-81.) The bedroom similarly adjoined the living room through an open door frame. (Tr. at 14-15, 63.) Gandia began explaining his version of the dispute to the officers in the kitchen, near the door frame. (Tr. at 11.) While Gandia spoke, Sergeant Morales positioned himself just inside the living room near the door frame, with his back against the wall to watch both the kitchen and the living room and to look for other people inside the apartment.*fn2 (Tr. at 10-12, 31, 33, 40, 45.) Sergeant Morales noticed a bullet standing upright on the top shelf of a home entertainment center in the living room, approximately 18 to 23 feet away. (Tr. at 12, 34-35.) Sergeant Morales picked up the bullet, saw that it was stamped .45 caliber on the base, and placed it back on the console. (Tr. at 14, 44.) After examining the bullet, Sergeant Morales quickly looked into Gandia's bedroom to determine whether there was any safety threat, and returned to the living room. (Tr. at 14-15, 44-45, 63.)

  While Sergeant Morales was in the living room, Officer Lawton walked into the living room to make sure there was no one else in the apartment. (Tr. at 58.) Officer Lawton also saw the bullet standing on its base on top of a wood-grain console television approximately 10 feet from where he was standing. (Tr. at 34, 58-59, 69, 72-73, 76, 82-83.) Gandia corroborated the officers' testimony that there was a bullet*fn3 on top of the entertainment center. (Tr. at 82-83, 94.)

  Subsequently, Officer Lawton briefly peered into Gandia's bedroom to check for other persons in the apartment. (Tr. at 63, 69.) Both Sergeant Morales and Officer Lawton saw a poster on the wall depicting different types of ammunition. (Tr. at 14, 63.) Neither Sergeant Morales nor Officer Lawton opened any drawers or looked under any furniture when they checked the living room and bedroom. (Tr. at 16-17, 63, 76-77.)

  After he left the bedroom, Officer Lawton entered the kitchen and looked behind the sink where Gandia was standing to ensure that no firearm was within reach. (Tr. at 64.) Officer Lawton returned to the living room, and pointed out the bullet to Sergeant Morales. (Tr. at 64, 70.) Sergeant Morales then asked Gandia if the object on the television was a bullet, and Gandia replied that it was "fake". (Tr. at 12, 34-35, 64, 70-71, 87-88.)

  Sergeant Morales asked Gandia for permission to search his apartment, but Gandia refused. (Tr. at 15, 36.) Sergeant Morales also testified that he instructed everyone to leave the apartment (Tr. at 15, 17, 36), while Gandia testified that he asked the officers to leave. (Tr. at 87-88, 94.) Gandia further contends that he asked the officers, "[W]hat are you doing? You don't even have a search warrant. What are you searching my apartment for?" (Tr. at 87-88.) Gandia was arrested outside of the front door to his apartment. (Tr. at 15, 18, 36-37, 75.) The officers were in Gandia's apartment for approximately five minutes. (Tr. at 43.)


  Gandia's motion to suppress concerns whether the officers discovered the bullet in the living room pursuant to a lawful search. Gandia argues that the officers recovered the bullet during an unlawful search, and then used it to obtain a search warrant. On that basis, Gandia moves pursuant to the Fourth Amendment to suppress all physical property seized from his apartment, including the bullet, and a handgun and 160 rounds of ammunition found during execution of the search warrant. Additionally, Gandia seeks to suppress a statement he allegedly made to arresting officers that the bullet was "fake". The Government argues in opposition that the officers lawfully discovered the bullet in plain view during a brief protective sweep of the apartment.

  I. Protective Sweep

  It is undisputed that the officers were lawfully within Gandia's apartment because they entered the premises on Gandia's consent. (Tr. at 8-9, 29-30, 55-56, 85-86, 92-93.) See United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995). Accordingly, the only issue is whether the officers were entitled to conduct a protective sweep, even though they did not intend to arrest Gandia at the time they entered his apartment. (Tr. at 27-29.)

  The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. It is well-established that warrantless searches "are per se unreasonable, subject to a few well-delineated exceptions." United States v. Oguns, 921 F.2d 442, 446 (2d Cir. 1990) (citations omitted). For example, in Maryland v. Buie, the Supreme Court held that officers entering a house with an arrest warrant can conduct a protective sweep of the premises if they possess "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." 494 U.S. at 334; accord United States v. Lauter, 57 F.3d 212, 216 (2d Cir. 1995) ("[O]fficers may perform a protective sweep incident to the arrest to protect themselves or others.").

  Gandia argues that because the officers were not in his apartment to arrest him, "they had no right or reason to conduct a protective sweep." (Defendant's Post-Hearing Memorandum, dated May 18, 2004 at 7.) This Court disagrees with Gandia's contention that a protective sweep for officer safety is only lawful when incident to an arrest, and declines to adopt such a restrictive construction of Buie. Indeed, under Buie's reasoning, limited, pre-arrest protective sweeps of a home for officer safety are lawful where there are specific articulable facts supporting a reasonable suspicion of risk to the officers' safety. Buie, 494 U.S. at 334 (noting enhanced risk of danger for officers in suspect's home; see, e.g., United States v. Gould, 364 F.3d 578, 581-86 (5th Cir. 2004) (en banc) (pre-arrest protective sweep permissible to ensure officers' safety); United States v. Taylor, 248 F.3d 506, 513-14 (6th Cir. 2001) (limited protective sweep permissible to protect the safety of officer who remains at the scene by searching for persons hidden on the premises while a search warrant is being obtained); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993) (pre-arrest protective sweep after consent entry permissible); United States v. Daoust, 916 F.2d 757, 759 (1st Cir. 1990) (C.J. Breyer) (pre-arrest protective sweep permissible where officers had an objective basis for a reasonable suspicion of risk to officers' safety); United States v. Miller, 306 F. Supp.2d 414, 417-18 (S.D.N.Y. 2004) (officer serving order of protection entitled to conduct a limited protective sweep for officer safety where articulable facts raised a rational inference of danger in the home). "[N]othing in Buie suggests that the result would have been different had the police otherwise properly entered the house, as for example, pursuant to a proper consent rather than a warrant." Gould, 364 F.3d at 581 (rejecting per se rule that a protective sweep can be valid only if conducted incident to an arrest); accord United States v. Koubriti, 199 F. Supp.2d 656, 662-65 (E.D. Mich. 2002) (rejecting argument that Buie only authorizes protective sweeps performed in conjunction with an arrest). Indeed, Buie was based on general Fourth Amendment principles and the reasoning of two pre-arrest, investigative stop and protective search cases, Terry v. Ohio, 392 U.S. 1 (1968) (pre-arrest frisks of individuals in public for weapons permissible if based on "specific and articulable facts" that suspect is armed and dangerous) and Michigan v. Long, 463 U.S. 1032 (1983) (pre-arrest search of automobiles for weapons during roadside stop permissible if based on "specific and articulable facts"). Buie, 494 U.S. at 327 (noting that the reasonable belief of danger to officers' safety warranting a protective sweep is "no more and no less than was required in Terry and Long"); Gould, 364 F.3d at 581-83.

  While pre-arrest questioning of a defendant in his home will not automatically trigger a lawful protective sweep, specific and articulable facts justified a sweep of Gandia's apartment to ensure the officers' safety in this case. The officers were aware that Gandia had just emerged from a heated argument where he had banged on Suarez's door, shouting "I don't care if you call the cops, I'm still going to get you anyway," and that Gandia was still upset. (Tr. at 7, 55, 91.) Indeed, Gandia testified that he and Suarez were "arguing and screaming at each other" when the officers arrived at the building. (Tr. at 85.) Further, the officers were responding to a radio call for a dispute involving a firearm, and had been informed that Gandia had a gun. (Tr. at 5, 7, 21, 45, 51, 65.) The fact that Gandia stated that he did not have a gun prior to being questioned about it, and that a firearm was not recovered during Gandia's pat-down frisk further raised the officers' reasonable suspicion and concern about the possibility of a missing firearm. (Tr. at 53.) In sum, Gandia's threatening statements to Suarez, his heated state of mind, and his alleged possession of a firearm implied "a willingness to resort to violence and access to firearms." Miller, 306 F. Supp.2d at 417 (finding protective sweep permissible where defendant had previously threatened to "put a bullet in [his cousin's] head," despite the fact that defendant acted calm towards the officers). Further, the officers knew that Suarez took the threat seriously enough to call the police for assistance. The danger to the officers in this situation is no less than if the officers had been there pursuant to an arrest warrant. Additionally, the protective sweep was limited and brief. The officers never opened drawers or closets, or entered his bedroom. (Tr. at 16-17, 63, 76-77.) Indeed, the officers testified they only looked into the bedroom for five seconds, and were in the apartment for approximately five minutes. (Tr. at 39, 41, 43, 63.) Moreover, the rooms were not separated by doors. (Tr. at 10, 58.) See Lauter, 57 F.3d at 217 (protective sweep of adjoining room permissible). Viewing the testimony as a whole, this Court finds there was an objective basis for a reasonable suspicion of risk to the officers' safety in Gandia's apartment that justified their limited, protective sweep. As the protective sweep was limited and supported by articulable facts, Sergeant Morales' positioning by the door frame in the living room where he could see the kitchen, living room, and anyone emerging from the bedroom was reasonable. (Tr. at 31, 45.) Officer Lawton's brief entry into the living room to determine if anyone else was present in the apartment was similarly reasonable. (Tr. at 57-58, 63, 68-69.) See Gould, 364 F.3d at 581-86, 591-92; see also Lauter, 57 F.3d at 216 ("That another agent had been in the back room did not preclude the possibility that there was some residual danger.").

  II. Plain View

  Having concluded that the officers' protective sweep was lawful, this Court examines whether the bullet seized in the sweep was within plain view. "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." Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); accord Horton v. California, 496 U.S. 128, 136 (1990). "Patently incriminating evidence that is in plain view during a proper security check may be seized without a warrant." United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir. 1999). Both Sergeant Morales and Officer Lawson testified that the bullet was standing upright on top of the television console, at approximately eye level. (Tr. at 12, 34-35, 58-59, 72-73, 82-83, 94.) Further, the bullet was not obscured by other objects on the console. (Tr. at 44, 59, 95.) As the bullet was in plain view during the officers' lawful security sweep of the living room, its seizure was permissible. See United States v. Lauter, 57 F.3d 212, 217 (2d Cir. 1995) (citing United States v. Jenkins, 876 F.2d 1085, 1099 (2d Cir. 1989)). Accordingly, since the officers' security sweep and plain view recovery of the bullet were permissible, Gandia's motion to suppress is denied. CONCLUSION

  For the reasons set forth above, defendant Edward Gandia's motion to suppress is denied.


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