United States District Court, S.D. New York
October 3, 2005.
UNITED STATES OF AMERICA
ALEX RUDAJ, et al., Defendants.
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
Defendant Alex Rudaj ("Rudaj") has moved to suppress evidence
seized without a warrant from his home on the morning of his
arrest. A hearing was held on September 7, 2005. For the
following reasons, the motion is granted in part.
At the hearing, the Government called two agents from the
Federal Bureau of Investigation (FBI) to testify. The defendant
did not testify. The following constitutes this Court's findings
of fact. On October 26, 2004, a team of agents from the FBI arrived at
the large, single-family house where Rudaj and his family lived
to serve an arrest warrant. This arrest was one of many that
morning of the defendants indicted in this case. In a briefing
prior to the arrest, the agents were told that several of the
targeted individuals had not yet been accounted for, but the
agents were given no reason to believe that anyone other than
Rudaj and his family were at the Rudaj residence that morning.
The lead agent on the Rudaj arrest team had also been told by
another agent that Rudaj kept weapons in his home.
The agents arrived around 6:30 a.m. The agents first called the
residence in an attempt to notify Rudaj and his family that they
were outside, and then knocked on the front door of the house. A
few minutes after the agents knocked, Rudaj opened the door and
Because Rudaj answered the door in his underwear, the arresting
agents escorted him back inside his house to get clothing for him
to wear. The agents asked Rudaj if there were any weapons in the
house and who else was in the house. Rudaj answered that there
was a loaded hunting rifle by the bed, and that the only others
in the house were his wife and children. The agents gathered the
Rudaj family in a downstairs room and conducted a security sweep
of at least the garage, basement, and the master bedroom. The
lead agent testified that the purpose of the security sweep was
to get Rudaj dressed and to remove him safely from the residence. Two agents proceeded upstairs to perform a protective sweep of
the master bedroom. The agents who had arrested Rudaj expected to
find the clothing needed to dress Rudaj in that room. Upon
entering the bedroom, the agents noticed two long guns on either
side of a nightstand next to the bed. On top of a dresser were
several bundles of U.S. currency and a collection of keys, among
The agents then opened the door to a walk-in closet and noticed
toward the rear of the closet the barrel of another rifle
sticking up above clothing hung from the top rack. The gun was
standing upright on a lower shelf and the most hotly contested
factual dispute from the hearing is whether the top of the barrel
was visible from the entrance of the closet. Having carefully
studied the photographs of the interior of the closet and having
observed the agents as they described the scene, I find that
approximately five or six inches of the barrel of the gun was
visible. The barrel extends thirteen inches past the gun's stock.
A little less than half of that section would have been visible.
This was sufficient to allow agents familiar with the appearance
of firearms and already aware of the existence of rifles in the
bedroom to recognize the barrel as part of a rifle. When they
pushed the clothing back to secure the weapon, the agents
discovered a number of items including a second rifle, a handgun
case, two knives, and transparent plastic bags containing
ammunition and gun-cleaning supplies. The agents also lifted down
a shoe box that was on a high shelf in the closet and opened it.
The agents continued the security sweep of the bedroom by
looking into a second, smaller closet across the room. Although
the closet contained mostly women's clothing, in the bottom
corner, the agents noticed camouflage clothing, men's work boots,
and a white plastic bag sitting on top of a cardboard box. Noting
that the bag resembled the plastic bags found in the walk-in
closet that had been used to store gun-related paraphernalia, the
agents pulled the bag out of the closet by pulling out the box on
which it rested. Their purpose was to inspect the bag more
closely. The bag apparently did not contain anything of note, but
when the officers inspected the box, they found a number of gun
holsters, a taser, and handcuffs. For reasons which will become
clear, it is unnecessary to decide whether the agents opened the
box or whether they were simply able to see its contents once
they removed the bag from on top of the box.
Having verified that nobody else was in the room, the two
agents upstairs called down to the agent leading the arrest team
to see what they had found. The team leader then called the
Assistant United States Attorney, who instructed the agents to
seize incriminating items that were in plain view. The agents
proceeded to photograph what they intended to seize, and then
prepared a detailed inventory and seized what they believed to be
the incriminating items from the room. The agents recognized the
keys as fitting in the types of padlocks that are often used on video gambling machines. Knowing that Rudaj was suspected of
managing a number of gambling operations and was involved in
picking up the money from those operations, the agents believed
the keys to be incriminating evidence of the gambling activities.
In moving to suppress the items seized from his home, Rudaj
asserted in an affidavit that the money was under folded shirts
in his dresser and was not in plain view. Rudaj presented no
evidence to support that contention at the hearing, and I find
that the money was in plain view on top of the dresser. His
affidavit also asserted that the two rifles in the master closet
were "behind clothing." As already explained, I find that one was
visible from the entrance to the closet and the other was in
plain view when the officers entered the closet to seize the
Although Rudaj's counsel had initially conceded that the agents
were entitled to enter the master bedroom to retrieve clothing
for him to wear, at the hearing he altered course and argued that
the agents should have allowed Rudaj's wife to bring clothing
from the mater bedroom without being accompanied by the agents
and that in any event all of the items the agents saw in the
bedroom had to be suppressed because the agents entered the
bedroom as part of an impermissibly broad protective sweep
through the entire house.
By its terms, the Fourth Amendment prohibits only "unreasonable" searches and seizures. U.S. Const. amend. IV. But
"[w]ith few exceptions, the question whether a warrantless search
of a home is reasonable and hence constitutional must be answered
no." Kyllo v. United States, 533 U.S. 27, 31 (2001). Thus, when
the government searches a citizen's home without a warrant, "the
burden of showing that the search fell within one of the
exceptions to the warrant requirement is on the government."
United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir. 1999). "As
in other Fourth Amendment contexts . . . the `reasonableness'
inquiry . . . is an objective one: the question is whether the
officers' actions are `objectively reasonable' in light of the
facts and circumstances confronting them, without regard to their
underlying intent or motivation." Graham v. Connor,
490 U.S. 386, 397 (1989).
I. Protective Sweep Incident to Arrest
The Government first characterizes the search of Rudaj's
bedroom as a protective sweep incident to his arrest. For the
reasons that follow, the search cannot be so justified.
The Fourth Amendment standard for protective sweeps conducted
in the course of an arrest was laid out by the Supreme Court in
Maryland v. Buie, 494 U.S. 325 (1990). The Court held that "as
an incident to the arrest," officers may "look in closets and
other spaces immediately adjoining the place of arrest from which
an attack could immediately be launched." Id. at 334. This
limited sweep may be conducted "as a precautionary matter and without probable cause or reasonable suspicion." Id.
If the officers wish to undertake a more wide-ranging sweep,
however, "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. "[G]eneralizations, without more, are insufficient
to justify a protective sweep." United States v. Moran Vargas,
376 F.3d 112, 116 (2d Cir. 2004). So too is a lack of
information. Id. at 117. Moreover, "[t]he justification for a
protective sweep is ephemeral: it may 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." Moran Vargas, 376 F.3d at 115 (citation
Yet even "if justified by the circumstances," a protective
sweep is "aimed at protecting the arresting officers," Buie,
494 U.S. at 335, not gathering evidence. It is therefore "not a
full search of the premises, [and] may extend only to a cursory
inspection of those spaces where a person may be found." Id.
Nevertheless, "[p]atently incriminating evidence that is in plain
view during a proper security check may be seized without a
warrant." Kiyuyung, 171 F.3d at 83.
The seizure of evidence from the upstairs bedroom is proper as
part of a protective sweep incident to arrest only if the search
of the bedroom falls into one of the categories described in
Buie. The first is clearly not applicable: the upstairs bedroom is by no means "immediately adjoining the place of
arrest" when the arrest occurred on the doorstep of the home and
the sweep encompassed a second floor bedroom. See United
States v. Lauter, 57 F.3d 212, 216-17 (2d Cir. 1995) (noting the
relevance of "the small size of the apartment" in approving the
search of a bedroom in a two-room apartment).
But the bedroom could be included in a protective sweep if the
agents had "articulable facts that support an inference that the
area to be swept harbors an individual posing danger to those
present." Id. at 216. The Second Circuit has consistently
demanded that this standard be met for protective sweeps beyond
the area immediately adjoining the place of arrest. See United
States v. Blue, 78 F.3d 56, 60 (1996) (concluding that a search
cannot be justified as a protective sweep where the officers have
"failed to articulate specific reasons for their suspicion that
the [area searched] harbored a dangerous person"); United States
v. Mickens, 926 F.2d 1323, 1328 (2d Cir. 1991) (upholding a
search where "arresting officers had reason to believe that
[other individuals] both of whom resided in the house were on
No such articulable facts were offered by the Government. The
agents asked Rudaj if anybody aside from his wife and children
(who were all accounted for downstairs at the time of the sweep
of the master bedroom) were in the house, and Rudaj replied in
the negative. The agents made no observations that morning that
would lead them to believe that somebody else was at the Rudaj residence, nor had they received any prior information
to that effect. On the contrary, the lead agent for the arrest
team stated that the sweep of Mr. Rudaj's bedroom was intended
"to ascertain whether or not there was anyone in the residence
that could be a threat" and that "there was a possibility there
could be additional people" present. But lack of information and
unfounded speculation do not rise to the level of a specific,
articulable basis for a reasonable belief. See Moran Vargas,
376 F.3d at 117. The Government has therefore not carried its
burden, and the search of the upstairs bedroom (and closets
therein) cannot be justified as part of a protective sweep
incident to the arrest of Rudaj downstairs.
II. Search of the Bedroom
The conclusion that the search was not proper either as
incident to arrest or because of a reasonable belief that the
bedroom harbored an individual posing a danger does not, however,
end the Fourth Amendment inquiry. In its brief, the Government
also argues that "because Rudaj was not dressed at the time of
his arrest, the agents were required to reenter the house so as
to allow him to get dressed." The choice of verbs is apt: "courts
routinely distinguish between the arrest itself and subsequent
procurement of clothing for the arrestee, requiring independent
justification for entry or reentry into a room or dwelling after
the arrest itself has been completed." United States v. Clay,
408 F.3d 214, 218 (5th Cir. 2005) (citing, inter alia, United States v. Di Stefano, 555 F.2d 1094, 1101 (2d
Cir. 1977)). If the agents' presence and seizure of evidence
upstairs is to be justified, then, it must be as part of a
separate legal entry into that portion of the Rudaj residence.
The Second Circuit has long recognized that an arresting
officer has a duty to ensure that an arrestee is sufficiently
dressed before removing her from her residence. Di Stefano,
555 F.2d at 1101. In the fulfillment of that duty, the officer may
accompany the arrestee into the residence (or another part
thereof) "to maintain a `watchful eye' on her and to assure that
she did not destroy evidence or procure a weapon." Id.; see
also Washington v. Chrisman, 455 U.S. 1, 6 (1982) ("The officer
had a right to remain literally at [the arrestee's] elbow at all
times. . . .").
Alternatively, the officers may choose to keep the arrestee in
a secure location and send one of their own to get the clothing.
See Di Stefano, 555 F.2d at 1101; United States v. Titus
445 F.2d 577, 578-79 (2d Cir. 1971); see also United States v.
Gwinn, 219 F.3d 326, 333 (4th Cir. 2000) ("[T]he arrestee's
partially clothed status may constitute an exigency justifying
the officer's temporary reentry into the arrestee's home to
retrieve clothes reasonably calculated to lessen the risk of
injury to the defendant."). Either way, a warrantless entry is
justified and an officer's presence in the arrestee's residence
As with warrantless searches, warrantless seizures are also "per se unreasonable under the Fourth Amendment-subject only to
a few specifically established and well-delineated exceptions."
Katz v. United States, 389 U.S. 347, 357 (1967). One of those
exceptions is the "plain-view" doctrine. That doctrine "permits a
law enforcement officer to seize what clearly is incriminating
evidence or contraband when it is discovered in a place where the
officer has a right to be." Chrisman, 455 U.S. at 5-6. If the
officer does not recognize the incriminating nature of the
evidence "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."
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (citation
omitted). In other words, the evidence must be "[p]atently
incriminating." Kiyuyung, 171 F.3d at 83.
Applying these principles to the present case, it is clear that
all evidence seized from the bedroom that was in plain view when
the agents entered the bedroom is admissible. Rudaj had opened
the front door, and was subsequently arrested, wearing only his
underwear and a t-shirt. The arresting agents had a duty to
provide clothing for him and a right to be in the bedroom to
fulfill that duty.
Rudaj argues that the agents should not have been allowed to
enter his house at all and suggests that the agents should have
stayed outside while his wife went to get him clothing. That the
agents might also have gotten the clothes this way is irrelevant.
See United States v. Mason, 523 F.2d 1122, 1126 (D.C. Cir.
1975) ("The agents undoubtedly could have taken measures which would
have rendered a search of the closet unnecessary . . ., but the
existence of alternative approaches does not imply that what
actually occurred was unreasonable."). The agents were under a
duty to provide Rudaj with clothing, but they were under no duty
to let him or his family go upstairs unaccompanied to get the
clothing. Moreover, they would have been constitutionally
permitted to, and indeed foolish not to, accompany whoever went
upstairs to ensure that she did not destroy evidence while there
or return downstairs with a weapon. See Washington v.
Chrisman, 455 U.S. at 6 (1982); Di Stefano, 555 F.2d at 1101.
The evidence seized from the room would have fallen in the plain
view of the accompanying officers, and its seizure would still
have been appropriate.
Rudaj further argues that the agents always intended to do a
security sweep of the entire house and would have done so even if
Rudaj had been arrested fully clothed. The Fourth Amendment
requires an agent's actions to be reasonable in the
circumstances, and does not inquire into subjective intent. See
United States v. Dhinsa, 171 F.3d 721, 725 (2d Cir. 1998). The
agents were permitted by the circumstances presented here to
enter the bedroom to procure clothing for Rudaj. Whether they
intended to enter the room in any event is irrelevant since it
was entirely lawful for them to be in the room. See Whren v.
United States, 517 U.S. 806, 814 (1996) ("[T]he
Fourth Amendment's concern with `reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective
It is undisputed that the seizure from the bedroom of the two
guns and the money on the dresser was lawful under the plain-view
doctrine if the agents were entitled to be in the bedroom. Rudaj
disputes, however, whether the keys lying on the dresser next to
the stacks of money could be lawfully seized under that doctrine.
Rudaj did not give notice that he was challenging the seizure
of the keys on the theory that their evidentiary value was not
readily apparent. Through his cross-examination of the
Government's witness, however, Rudaj's counsel challenged the
seizure. Even though the Government was not prepared to present
evidence on this issue at the hearing, the agents' testimony is
sufficient to support the seizure.
The seizure of the keys was proper under the plain-view
exception to the warrant requirement because the incriminating
character of the keys was immediately apparent to the agents. The
seizing agent had been informed prior to the arrest that Rudaj
was believed to be involved in illegal gambling, and more
specifically, to have participated in the weekly collections of
money from gambling machines. The agent further recognized the
keys on the dresser as matching the type of lock commonly used to
secure gambling machines. In light of this information, the
discovery of the keys in the immediate vicinity of large amounts
of cash could fairly give rise to "probable cause to suspect that the [keys were] connected with criminal activity." Illinois v.
Andreas, 463 U.S. 765, 771 (1983). "Put another way, it [would]
have been `immediately apparent' to the officer before seizing
the [keys] . . . that [they were] of a criminal character," and
therefore subject to seizure under the plain-view doctrine.
United States v. Barrios-Moriera, 872 F.2d 12, 16 (2d Cir.
1989). Because the guns, money, and keys were clearly in plain
view of the agents who entered the bedroom, and their
incriminating nature was immediately apparent, the seizure of
these items was proper. Di Stefano, 555 F.2d at 1101; Titus,
445 F.2d at 579 ("Everything the agents took was in their `plain
view' while they were where they had a right to be. . . .").
III. Protective Sweep of the Closets
The seizure of evidence from the two closets is more
problematic. The Government does not argue, and the evidence does
not suggest, that the barrel of the gun protruding above the
upper rack of clothing in the master closet was in plain view
from the bedroom itself. Nor, significantly, does the Government
argue that the discovery of the gun, which was in plain view upon
entry into the closet, would have been inevitable in the course
of procuring Rudaj's clothing, most of which, presumably, was
kept in this closet. See United States v. Ford, 22 F.3d 374,
376-77 (1st Cir. 1994) (applying the inevitable discovery rule to
evidence seized during a protective sweep and not reaching the
lawfulness of the sweep). Instead, the Government maintains that the search of the closets was proper as part of a protective
sweep. Yet as explained above, the search of the closets exceeded
the scope of a permissible sweep incident to an arrest. Moreover,
the agents' presence in the bedroom must be considered a separate
legal entry into the Rudaj residence. If the search of the
bedroom closets is proper, then, it must be as part of a security
sweep incident to this second entry.
The Buie Court did not address the question of whether the
standard it articulated would apply to protective sweeps
conducted in circumstances other than the execution of an arrest.
To be sure, the standard is framed in terms of an arrest, but
that may simply reflect the facts of that particular case. The
Court did not explicitly limit its holding to such sweeps.
"Buie gives no indication that circumstances other than arrest
which expose police officers to a comparable danger could not
also justify a similar protective response (at least where those
circumstances are not the product of police illegality or
misconduct)." United States v. Gould, 364 F.3d 578, 581 (5th
Cir. 2004) (en banc); see also United States v. Knights,
534 U.S. 112, 117 (2001) (criticizing as "dubious logic" the argument
"that an opinion upholding the constitutionality of a particular
search implicitly holds unconstitutional any search that is not
The Second Circuit has twice been confronted with this issue
recently, but declined to reach it both times. See United
States v. Gandia, ___ F.3d ___, 2005 WL 227103 at *8; Moran
Vargas, 376 F. 3d at 115. It has, however, provided some guidance on how
Buie should be interpreted. In one of its first cases applying
Buie, the Court of Appeals explained that "Buie cannot be
read in isolation, for its holding draws heavily from Terry v.
Ohio and Michigan v. Long. . . . [I]n all three cases, the
Court applied the same balancing test to different factual
situations." Hernandez, 941 F.2d at 136. This Court must
therefore turn to the balancing test invoked in these cases to
guide its decision on the applicability of Buie's framework to
the sweep of the closets incident to the second entry.
According to the Supreme Court, "there is `no ready test for
determining reasonableness other than by balancing the need to
search . . . against the invasion which the search . . .
entails.'" Buie, 494 U.S. at 332 (quoting Terry v. Ohio,
392 U.S. 1, 21 (1968)) (omissions in original). The interests at
stake here are essentially identical to those recognized in
Buie. The officers have the same interest "in taking steps to
assure themselves that the house . . . is not harboring other
persons who are dangerous and who could unexpectedly launch an
attack," regardless of whether an arrest has taken
place.*fn1 Id. at 333. They face the same "disadvantage of
being on [their] adversary's `turf'" and the same danger of "[a]n
ambush in a confined setting of unknown configuration." Id. The
invasion occasioned by the protective search is also the same, assuming that it is similarly
restricted in scope to the search described in Buie.
There is every reason to find that the balance struck in Buie
should extend to protective searches that are conducted incident
to the entry into a residence for the purpose of securing clothes
for an insufficiently dressed arrestee. Indeed, it arguably
"would make no sense to hold that the police may conduct a
protective sweep when lawfully entering with a warrant but must
refrain from doing so when lawfully entering" on another basis.
United States v. Martins, 413 F.3d 139, 149-50 (1st Cir. 2005).
A similar conclusion has been reached by several Courts of
Appeals that have addressed the issue. See id. ("[P]olice who
have lawfully entered a residence possess the same right to
conduct a protective sweep whether an arrest warrant, a search
warrant, or the existence of exigent circumstances prompts their
entry."); Gould, 364 F.3d at 584 (holding that "arrest is not
always, or per se, an indispensable element of an in-home
protective sweep"); United States v. Taylor, 248 F.3d 506, 513
(6th Cir. 2001) (holding that, because officers could lawfully
secure an area entered by consent while awaiting a search
warrant, "it follows logically that . . . the police may conduct
a limited protective sweep to ensure the safety of those
officers"); United States v. Garcia, 997 F.2d 1273, 1282 (9th
Cir. 1993) (upholding protective search following consented
entry); United States v. Patrick, 959 F.2d 991, 996-97 (D.C.
Cir. 1992) (same); see also United States v. Murphy,
16 F. Supp. 2d 397, 400 (S.D.N.Y. 1998) ("The finding that [the arrestee]
answered the door in a state of undress and sought to return to
the apartment for his clothes fully justified the officers in
accompanying him into the premises and in conducting a protective
sweep."). But see United States v. Medina,
301 F. Supp. 2d 322, 333 (S.D.N.Y. 2004) (explaining that protective sweep had
not been unduly delayed because officers "could not do a
protecting sweep until after the arrest"); United States v.
Santos, 303 F. Supp. 2d 333, 348 (S.D.N.Y. 2003) (noting that
"the protective sweep doctrine is limited in two ways the sweep
must be incident to a lawful arrest and confined to areas where a
person could hide or that are within a suspect's `grab area'").
When the entry into a section of a home is lawful, it is
entirely reasonable for officers to confirm through a limited
protective inspection of the immediate vicinity that they are not
at physical risk. Prudence, common sense, and the realities of
law enforcement work support such a conclusion. A limited
protective sweep comports with Fourth Amendment principles that
the standard is workable for "rank and file, trained police
officers," Andreas, 463 U.S. at 772, that a resident's
legitimate expectation of privacy in immediately adjoining areas
is significantly diminished once officers can lawfully enter into
a room, and that the standard be an objective one that is "not
dependent on the belief of individual police officers." Id. at
Finally, because the interests at stake are the same, the contours of the balance struck between them must also be the same
here as in Buie. Arresting officers are not granted any more
leeway to invade the privacy unnecessarily of an insufficiently
dressed arrestee than they have with the fully dressed. To
paraphrase Judge Learned Hand, it would be "small consolation to
know that one's papers are safe only so long as one is [fully
dressed] at home." United States v. Kirschenblatt, 16 F.2d 202,
203 (2d Cir. 1926). The limits on protective sweeps outlined in
Buie must therefore apply to an entry for the purpose of
securing clothing. Specifically, the sweep must be limited to "a
cursory inspection of those spaces where a person may be found"
and must be supported by specific, articulable facts if it is to
exceed the area "from which an attack could be immediately
launched." Buie, 494 U.S. at 335, 334.
Extending the Buie framework to the agents' entry into the
Rudaj bedroom, the agents sent upstairs "could, as a
precautionary matter and without probable cause or reasonable
suspicion, look in closets and other spaces immediately
adjoining" the area in which they were lawfully permitted to
enter in the fulfillment of a duty to obtain clothing for an
arrestee.*fn2 Id. at 334. Once they opened the closet door
as part of this precautionary search, the barrel of a gun protruding
above the upper shelf fell into their plain view. Having
identified the barrel as part of a weapon, the agents were
entitled to approach the back of the closet and seize the weapon.
While there, the agents could also seize the other patently
incriminating evidence that fell into their plain view, including
the other gun, the gun case, the knives, ammunition, and
gun-cleaning supplies. All of the evidence seized from the master closet is therefore admissible.*fn3
A different conclusion must be reached with respect to the
evidence seized from the second, smaller closet. Entry into this
closet for the purpose of a limited security check was proper,
and the agents could likewise have seized any "[p]atently
incriminating" evidence discovered in their plain view while
looking for dangerous persons. Kiyuyung, 171 F.3d at 83. The
white plastic bag and plain cardboard box that the agents removed
from this closet were not, however, patently incriminating. In
contrast to the white plastic bags properly removed from the
master closet, the bag in the smaller closet did not reveal any
incriminating contents through the transparent plastic.
The Government argues that the bag and box were sufficiently
incriminating to justify seizure under the plain-view exception
because they were found next to camouflage clothes in his wife's
closet and because the bag resembled other white plastic bags
found in the master closet. These two facts do not suffice to
make the incriminating character of the bag or its contents "immediately apparent" without a further search. Minnesota v.
Dickerson, 508 U.S. at 375.
The Government further argues that the Fourth Amendment permits
the warrantless search of containers believed to contain
incriminating evidence. This is not the law. "[T]he
Fourth Amendment provides protection to the owner of every container
that conceals its contents from plain view," United States v.
Ross, 456 U.S. 798, 822-23 (1982), unless specific and limited
conditions obtain that would diminish that protection. See,
e.g., California v. Acevedo, 500 U.S. 565, 574 (1991)
(container in automobile); Andreas, 463 U.S. at 773 (1983)
(container previously searched by government); United States v.
Place, 462 U.S. 696, 701 (1983) (exigent circumstances
justifying seizure); Arkansas v. Sanders, 442 U.S. 753, 764 n.
13 (1979) (distinctive, single-purpose container). In the absence
of such conditions, however, the propriety of a warrantless
search under the plain-view doctrine depends solely on the
visibility of the contents, not of the container itself. For it
is in the contents that the expectation of privacy lies. See
United States v. Chadwick, 433 U.S. 1, 13 n. 8 (1977).
Thus, the plain-view exception to the warrant requirement
justifies the search of a closed container only if it "sp[eaks]
volumes as to its contents," Barrios-Moriera, 872 F.2d at 17
(citation omitted), which is to say, only if the contents
themselves are essentially in plain view. Both of the cases
relied upon by the Government reflect this limitation. See United States v. Gubczak, 793 F.2d 458, 461 (2d Cir. 1986)
(noting that the agent "had concluded that the case [searched]
contained lock-picking tools before he picked it up"); United
States v. Ocampo, 650 F.2d 421, 427 (2d Cir. 1981) (noting that
the container was "unsealed," allowing the agent to see "currency
sticking out of it"). Here, however, the plastic bag in the small
closet revealed nothing about its contents to the agents. Cf.
United States v. Martin, 157 F.3d 46, 55 (2d Cir. 1998)
(expressing skepticism that the plain-view doctrine would apply
where police knew of a package's incriminating contents from a
third party but had not seen the contents themselves).
Without a warrant, the agents were not justified in removing
the bag for a closer inspection. The same is necessarily true
with respect to the box, whose contents were revealed only after
it was removed from the closet and the plastic bag was lifted off
of it. See Dickerson, 508 U.S. at 379 (explaining that
seizure "could not be justified by the plain-view doctrine" where
probable cause as to the item's incriminating nature arises "only
as a result of a further search the moving of the [item seized]
that was not authorized by a search warrant or by any exception
to the warrant requirement").
Because the plastic bag was not subject to seizure under the
plain-view doctrine, the agents were not entitled to remove it
from the closet to inspect it more closely. Since the holsters,
taser, and handcuffs were not visible to the agents when they
opened the smaller closet as part of a "cursory" security check for hidden dangerous persons, this evidence must be suppressed.
The agents were entitled to enter Rudaj's bedroom in order to
find clothing for him to wear. The two guns on either side of the
nightstand, as well as the money and keys scattered across the
top of the dresser, were in plain view to those agents, and were
properly seized. The closets were lawfully entered as part of a
protective sweep incident to the entry into Rudaj's bedroom for
the purpose of procuring clothing. The incriminating evidence
found in the master closet was in plain view of the agents
lawfully in the closet and was also properly seized. The box and
bag removed from the smaller closet, in contrast, were not
patently incriminating and should not have been disturbed without
a warrant. The contents of the box must therefore be suppressed.
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