Category Archives: Protective sweep

E.D.Cal.: Motion for return of property can’t be granted while criminal proceedings still pending

A motion for return of property involved in a criminal case can’t be entertained until all proceedings have concluded. Here, the 2255 has neither been filed nor resolved. United States v. Kindley, 2024 U.S. Dist. LEXIS 31431 (E.D. Cal. Feb. … Continue reading

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OH2: Allegation that search occurred before SW issued is not a Franks issue

“A second problem is that the foregoing scenario does not raise a Franks issue. If Detective Saunders did prematurely enter the house without a warrant, he may have violated the Fourth Amendment. But that act would not establish any falseness … Continue reading

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CA2: Where PC and GFE found by District Court, both have to be argued on appeal or waiver occurs

The district court found probable cause and the good faith exception applied. On appeal, he argued only probable cause. The alternative ground of good faith was thus waived and the court can affirm. United States v. McGregor, 2024 U.S. App. … Continue reading

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CA4: Another search, surveillance cameras, likely presence of weapons and other persons justified protective sweep

Another search the day before, surveillance cameras, and the likely presence of weapons and others justified this protective sweep. “The officers knew, for example, they were about to arrest a substantial drug supplier, and he had a known connection to … Continue reading

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NY Nassau: Mere theory someone else is inside when it’s not even practical doesn’t support a protective sweep

Police were sent to defendant’s house/dentist office on a report of his menacing with a firearm. Defendant came out and submitted. The entry into the house for exigency or protective sweep was not shown by the state to be justified. … Continue reading

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D.P.R.: No REP of corporate officers in medical records in health care fraud case

Records were taken by a corporate whistleblower on a flash drive from a Puerto Rican health care provider. That led to a 122-count indictment for health care fraud. A motion to suppress was filed over the records. Defendants were corporate … Continue reading

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S.D.N.Y.: Controlled buy at def’s door + sound from inside = protective sweep

Officers did a controlled buy [used to be called “buy-bust”] of drugs and then used the alleged noise from inside to justify a protective sweep. The protective sweep was valid. Defendant was in the doorway and Santana (1976) justified the … Continue reading

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NC: Where def drove on grass approaching 4A violating checkpoint, there was RS

Because defendant’s stop at a checkpoint was already with reasonable suspicion, the court does not have to decide on the constitutionality of the roadblock [that appears to have caused it]. State v. Alvarez, 2023 N.C. LEXIS 940 (Dec. 15, 2023). … Continue reading

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LA3: Cell phone ping to locate def in a shooting investigation was exigent

“In our view, the trial court did not err in finding that exigent circumstances justified the warrantless procurement of Defendant’s cell-site information. Defendant was attempting to flee from the investigation of this violent crime, [and there was a serious risk … Continue reading

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WA: Def’s first appearance where bail was set under Gerstein not critical stage requiring counsel because bail could be revisited

Defendant’s first appearance where bail was set under Gerstein was not a critical stage requiring counsel because bail could be revisited. State v. Heng, 2023 Wash. LEXIS 603 (Dec. 7, 2023). “The government contends that [the search] was justified both … Continue reading

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N.D.Tex.: Protective sweep of meth lab property was objectively reasonable

The officers’ protective sweep of a property with a working meth lab was objectively reasonable. United States v. Moreno, 2023 U.S. Dist. LEXIS 201424 (N.D. Tex. Nov. 9, 2023). Defendant’s cell phone was used during the period the rape victim … Continue reading

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WV: State did not justify “officer safety” as reason for entry

The state failed to justify the entry here on officer safety grounds because their neighbor disturbance call included no reference to potential violence or threats and no good reason could be articulated other than “officer safety” which essentially is always … Continue reading

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S.D.Ohio: Evidence in plain view may be seized during protective sweep

It was permissible for officers to seize firearms seen in plain view during this protective sweep. United States v. Riley, 2023 U.S. Dist. LEXIS 198798 (S.D. Ohio Nov. 6, 2023). “Given the totality of the circumstances and the numerous distinctions … Continue reading

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W.D.Ky.: Protective sweep unjustified on facts; rural area not enough

The protective sweep here wasn’t justified by any current facts justifying it. The government first relied on it being a rural area, but that’s rejected because it would render most of the country a zone where protective sweeps could always … Continue reading

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N.D.Ala.: 4A does not require gun seen in protective sweep be immediately seized; SW was obtained

If officers saw defendant’s .22 during a protective sweep, the Fourth Amendment doesn’t require that it be seized immediately. It can be seized during execution of the later issued search warrant. A .22 is not a weapon of choice for … Continue reading

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S.D.Ill.: Justification for a protective sweep remained despite 10 hour wait outside

Despite officers waiting outside for about ten hours and seeing no movement from inside, a protective sweep was still objectively reasonable on the totality. People were unaccounted for, and there was a gun and drugs seen from outside the door. … Continue reading

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E.D.Pa.: Officer’s question about firearms in car made def unreasonably nervous

During a traffic stop, the officer’s question about weapons in the car resulted in defendant’s getting unusually nervous, his breathing completely changing where his chest rose and fell, and he refused to look the officer in the eye. That was … Continue reading

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D.R.I.: Protective sweep unjustified; no reason to believe anyone else was there

Defendant’s premises had been under surveillance for days before the entry and protective sweep. There was no justification for the protective sweep because there was no reason to believe anyone else was there. United States v. Dacruz, 2023 U.S. Dist. … Continue reading

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GA: Unjustified protective sweep suppressed

The “security sweep” of defendant’s dwelling violated the Fourth Amendment. No justification for the entry and no exigent circumstances were shown. Defendant’s alleged consent came after the unlawful entry. Denial of suppression reversed. Thompson v. State, 2023 Ga. App. LEXIS … Continue reading

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E.D.Wis.: Innocent person whose property was seized can petition in criminal case for return of property

The court finds it has ancillary jurisdiction over a return of property question not directly involved in this case. Petitioner owned it and it was at the place searched and does hold evidence of crime. United States v. Solberg, 2023 … Continue reading

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