Appeal from an Order entered November 20, 2009, in the United States District Court for the Southern District of New York (Jones, J.), after a hearing, suppressing as the product of an unreasonable search, a firearm discovered during a purported protective sweep of the defendant-appellee's bedroom, the government having certified that the suppressed firearm is substantial proof of a fact material to the prosecution of an indictment charging defendant-appellee with being a felon in possession of a firearm.
The opinion of the court was delivered by: Miner, Circuit Judge:
Before: MINER, B.D. PARKER, AND RAGGI, Circuit Judges.
The government appeals from an Order entered November 20, 2009, in the United States District Court for the Southern District of New York (Jones, J.), suppressing as evidence a handgun allegedly belonging to defendant-appellee Eric Hassock, a/k/a David St. Walton, a/k/a Basil LNU ("Hassock"). The government proposed to enter the firearm into evidence as proof of a fact material in the prosecution of Hassock for being a felon in possession of a firearm. The District Court determined, after a hearing, that the firearm was secured as the result of an unreasonable search of Hassock's bedroom. The government contends on appeal, as it did below, that the handgun in question was discovered in the course of a proper protective sweep. We affirm for the reasons set forth below.
In reciting the background for our analysis in this case, we rely essentially on the factual findings made by the District Court.
The investigation that led to Hassock's indictment for being a felon in possession of a firearm began with information received from a confidential source. The information was supplied to Senior Special Agent Christopher Quinn ("Agent Quinn" or "Quinn") of the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") in November 2008. Agent Quinn identified the confidential source as "CS-1" in a complaint filed on January 22, 2009, in support of an arrest warrant for Hassock. In the complaint, Agent Quinn stated that CS-1 saw BASIL LNU, a/k/a "David St. Walton," the defendant, with a black semiautomatic handgun in BASIL LNU's home, which is located in the basement apartment at 3201 Mickle Avenue in the Bronx, New York.
CS-1 identified the building to me and other law enforcement agents and described the layout of the basement apartment. CS-1 further stated that BASIL LNU is a marijuana dealer. CS-1 also provided me with a picture of BASIL LNU. CS-1 further stated that CS-1 believes BASIL LNU is an illegal alien and is from Jamaica.
The investigation was pursued by an inter-agency task force (the "Task Force") that included Agent Quinn and law enforcement personnel detailed from the Drug Enforcement Administration, the Federal Bureau of Investigation, the New York Police Department, the New York State Police, and the Internal Revenue Service. In the course of the investigation, the Task Force acquired information that "Basil" occupied the front bedroom in the basement apartment in which he resided; that he stayed out late, slept late, usually departed from his apartment around noon, and had no known legal employment. Moreover, the photograph and physical description provided to Quinn by the confidential informant showed Basil to be an African-American male approximately six feet tall and weighing approximately 220 pounds.
In order to obtain the true identity of "Basil," which was then unknown, the Task Force conducted residence checks and record checks. These efforts were unsuccessful, and the Task Force resolved to speak with the subject of their investigation at his home. Accordingly, on November 25, 2008, Agent Quinn and four other Task Force members headed to the basement apartment at 3201 Mickle Avenue. The purpose of the visit, according to Quinn, was to conduct surveillance and to "knock and talk," that is to "knock on the door and interview potential residents to see if the information that we have is accurate, to see if there is any further follow-up investigation we can do." Tr. at ...