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THE POLICE WERE AWARE THAT NO ONE ELSE WAS IN THE RESIDENCE AT THE TIME DEFENDANT LEFT THE RESIDENCE AND WAS ARRESTED; THERE WERE NO EXIGENT CIRCUMSTANCES JUSTIFYING THE WARRANTLESS SEARCH OF THE HOUSE AFTER DEFENDANT’S ARREST; THE WEAPONS SEIZED SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT

The Fourth Department, reversing County Court, determined defendant’s motion to suppress the weapons seized when the police did a “protective sweep” of defendant’s residence should have been granted. Defendant’s wife and daughter had left the residence and told the police, who were outside the residence, only the defendant was inside. Defendant eventually left the residence and was arrested. Only then did the police enter for the “protective sweep:”

… [W]e conclude that there were no emergency or exigent circumstances justifying the warrantless search of the residence. Once defendant’s daughter exited the dwelling, the officers knew from defendant’s wife that no one else was in the dwelling except defendant. None of the officers at the scene witnessed anything that would lead them to suspect that there was another person in the residence. The “mere possibility” that a person could be inside the premises did not justify the search … . We also note that there was no indication that defendant had shot or injured anyone prior to the officers’ arrival at his residence, and at no time had defendant threatened the police or anyone else at the residence. Under the circumstances, there was no legitimate reason for the police not to apply for a search warrant before entering the house. People v Swank, 2024 NY Slip Op 06449, Fourth Dept 12-20-24

Practice Point: A “protective sweep” of a residence that the police know to be vacant amounts to a warrantless search in the absence of exigent circumstances.

 

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WHEN A WITNESS’S IDENTIFICATION OF THE DEFENDANT FROM A PHOTOGRAPH SHOWN TO HIM BY THE POLICE IS DEEMED “CONFIRMATORY,” THAT CONCLUSION IS TANTAMOUNT TO A DETERMINATION AS A MATTER OF LAW THAT THE POLICE IDENTIFICATION PROCEDURE WAS NOT SUGGESTIVE AND COULD NOT HAVE LED TO THE MISIDENTIFICATION OF THE DEFENDANT BECAUSE THE WITNESS KNEW THE DEFENDANT WELL; HERE THE PROOF THE IDENTIFICATION WAS CONFIRMATORY WAS INSUFFICIENT; THE IDENTIFICATION TESTIMONY SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED (FOURTH DEPT).
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