Come back with a Warrant - Evidence Suppressed
In People v. Fray, 2019 NY Slip Op 52086 - NY: County Court 2019, the New York City Police Officer conducted a protective sweep. The NYPD was looking for a bound female who was being held captive. Approaching the accused, he initially took the accused into his apartment to avoid the negative implications of being handcuffed by an NYPD officer in the middle of his common way/hallway. The potential charges: kidnapping, criminal possession of a weapon, assault, battery, etc. The NYPD did a quick peek inside (using a flashlight, like the lego depiction) the accused's apartment to make sure he was (reasonably) safe under the circumstances. The accused was later brought down to the police vehicle.
The Court reviews the circumstances of an exception to the warrant requirement, that one must have reasonable cause to search or present such evidence to a neutral magistrate before violating the Fourth Amendment rights of the accused:
Defendant challenges the tangible evidence recovered from his residence as a result of a search pursuant to a protective sweep conducted as part of Officer Grabowski's investigation into a possible domestic incident involving a captive victim. He contends, in the main, that the initial entry and subsequent search of his residence was unlawful inasmuch as Officer Grabowski lacked an objective basis to believe that another individual was secreted therein—a necessary predicate to the conduction of a protective sweep. The Court agrees. The motive force for the constitutional safeguards precluding unreasonable searches and seizures is protection against arbitrary governmental invasion of privacy (People v Hodge, 44 NY2d 553, 557  [citations omitted]). The Supreme Court has explained that the "placement of [a warrant requirement is to serve as a] checkpoint between the Government and citizens [as it] implicitly acknowledges that an officer engaged in the often competitive enterprise of ferreting out crime may lack sufficient objectivity to weigh correctly the strength of the evidence supporting the contemplated action against the individual's interests in protecting his own liberty and the privacy of his home." (Steagald v U.S., 451 US 204, 212 .) Subject only to a few specifically established and well-delineated exceptions, warrantless searches and seizures are per se unreasonable (Payton v New York, 445 US 573 n 25  [citations and quotations omitted]; Schneckloth v Bustamonte, 412 US 218, 219 ; Katz v United States, 389 US 347, 356 ; Coolidge v New Hampshire, 403 US 433, 453 . One such exception is the protective sweep doctrine.
The protective sweep doctrine allows for "sufficient latitude to take reasonable steps in order to protect themselves from danger and/or to prevent the destruction of evidence." The Court further notes that the warrant exception is allowed under certain circumstances, "in order to justify a protective sweep, it is incumbent upon the People to demonstrate '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.' " (Buie, 494 US at 334)."
The circumstances here was that the accused was harboring a woman against her will, that he may have had weapons and that he was at a certain location. Officers came and arrested the accused before searching his apartment. There was nothing in plain sight during that quick peek and the accused was well out of the distance where he could have hurt the officer. There was no indication that there was anything out of place in the apartment.
The Court holds that "officer Grabowski was not justified in conducting a protective sweep of defendant's residence based upon his rank conjecture that there may be another person present therein (see Bost, 264 AD2d 425; see also People v Sears, 165 AD3d 1482 [3d Dept 2018])."
There must be something to justify the warrantless search: "To be certain, there was not a scintilla of evidence—direct observation or obtained witness statements—to suggest that a third party was secreted within defendant's residence. Significantly, there were no observed auditory or visual indicators consistent with the presence of a harbored individual within defendant's residence."
The evidence is suppressed in its entirety. What about guns. Gun possession or possession of a weapon is a serious crime? Red Flag laws, etc., are becoming quite a stir in the southern part of New York... Even with the suspicion that the accused possessed a weapon, criminal possession of a weapon or ammunition, The Court finds that "the defendant may have been harboring a firearm within his residence did not constitute a valid basis to justify a warrantless entry therein."
The case is People v. Fray, 2019 NY Slip Op 52086 - NY: County Court 2019 and it resulted in the suppression of the evidence due to the warrantless search of Police Officer Grabrowski, an NYPD Officer.
Criminal Defense Attorneys: The laws have changed in New York regarding discovery and there are ways to put a stop to this. The best practice for traversing this new terrain is to simply file a demand to ensure the People of the State of New York comply with their requirements under the law.
Accused of a crime? Hire an attorney who does more than consult a discovery checklist: Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)