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DEFENDANT WAS OUTSIDE HIS RESIDENCE WHEN HE WAS ARRESTED AND A PROTECTIVE SWEEP WAS CONDUCTED INSIDE DEFENDANT’S RESIDENCE; ITEMS OBSERVED IN THE RESIDENCE WERE LATER SEIZED PURSUANT TO A SEARCH WARRANT; BECAUSE THE POLICE HAD NO REASON TO SUSPECT OTHERS WERE PRESENT IN THE RESIDENCE, THE PROTECTIVE SWEEP OF THE RESIDENCE WAS NOT JUSTIFIED AND THE OBSERVED ITEMS SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department held that items observed by the police during a “protective sweep” of his residence should have been suppressed. At the time of defendant’s arrest and the protective sweep defendant was outside of his residence. The police had no reason to believe others were inside the residence:

Upon a lawful arrest, the police may conduct a limited protective sweep of the premises, but this ‘is justified only when the police have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene’ … . The purported protective sweep conducted here was improper, as there were no articulable facts supporting a belief that any other person was present inside the trailer, let alone a person who could pose a threat to those on the scene … . Neither the search warrant nor the suppression hearing testimony reflected that anyone other than defendant was ever observed or believed to be inside the trailer, and there was nothing referenced that would serve to indicate that there was any lingering threat. People v Hadlock, 2023 NY Slip Op 03819, Third Dept 7-13-23

Practice Point: The defendant was arrested outside his residence and the police conducted a protective sweep of the residence which led to the seizure of contraband observed during the sweep. Because the police had no reason to believe anyone else was present, the sweep of the residence was not justified and the observed items should have been suppressed.

 

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