You are here: / / THE POLICE WERE AWARE THAT NO ONE ELSE WAS IN THE RESIDENCE AT THE TIME...
,

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.

 

You might also like
THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION IN THIS CRIMIINAL POSSESSION OF A WEAPON PROSECUTION (FOURTH DEPT).
THE BED OF A VAN IS NOT AN ELEVATED WORK SURFACE FOR PURPOSES OF LABOR LAW 240(1) (FOURTH DEPT).
THE SUBROGATION ACTION BY THE INSURER OF THE PROPERTY OWNER IN THIS SLIP AND FALL CASE WAS NOT PRECLUDED BY THE RES JUDICATA DOCTRINE AFTER A GLOBAL SETTLEMENT WITH THE INJURED PARTY (FOURTH DEPT).
DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT).
Defendant Should Have Been Adjudicated a Youthful Offender; Waiver of Appeal Not Valid
TO BE ENFORCEABLE, A WAIVER OF APPEAL MUST BE SUPPORTED BY A SENTENCING COMMITMENT OR OTHER CONSIDERATION (FOURTH DEPT).
Allegations that Town Was Negligent in Maintaining a Sewer System Involve a Proprietary Function Subject to Ordinary Rules of Negligence
Rebuttal Witness Properly Called by the People to Show Possible Bias of Defense Witness

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

SMI, A SOLID WASTE TREATMENT FACILITY, RAISED A SEQRA CHALLENGE TO A LOCAL LAW... THE STATUTE OF LIMITATIONS FOR THIS SLIP AND FALL CASE WAS SUSPENDED DURING...