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October 3, 2005.

ALEX RUDAJ, et al., Defendants.

The opinion of the court was delivered by: DENISE COTE, District Judge


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 was handcuffed.

  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 other items.

  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 first rifle.

  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 ...

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