Because of inconsistencies in the officers’ testimony and one with a bad reputation for the truth, the court concludes that a protective sweep on a consent entry here was invalid. This is a case where the government turned over impeaching material on officers caught in official misstatements, and one wasn’t called because he’d plead the Fifth. The court also engages in an extended discussion of the split in the circuits on protective sweep on consent. United States v. Fadul, 2014 U.S. Dist. LEXIS 54407 (S.D. N.Y. April 18, 2014):
B. The Protective-Sweep Doctrine and Consent Entries
1. The Circuit Split
Although the Second Circuit held in Miller that the protective-sweep doctrine extends beyond the arrest warrant context, it has not resolved whether it applies where, as in this case, the police allegedly gained entry in the first instance by consent. See United States v. Hassock, 631 F.3d 79, 87 (2d Cir. 2011). Complicating matters, the other Courts of Appeals are divided on the issue (and the Ninth Circuit is divided unto itself). Some courts, citing the Buie Court’s definition of a protective sweep as “‘a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others,'” have held categorically that the doctrine does not apply to consent searches. United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000) (quoting Buie, 494 U.S. at 327) (emphasis added); accord United States v. Torres-Castro, 470 F.3d 992, 996 (10th Cir. 2006). Other courts have held the opposite, reasoning that when officers are lawfully present in a home pursuant to consent “circumstances can give rise to equally reasonable suspicion of equally serious risk of danger of officers being ambushed by a hidden person as would be the case were there an arrest.” United States v. Gould, 364 F.3d 578, 585 (5th Cir. 2004) (en banc); accord United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993); United States v. Patrick, 959 F.2d 991, 996-97 (D.C. Cir. 1992); United States v. Holland, 522 F. App’x 265, 276 (6th Cir. 2013) (unpublished opinion).
The D.C. Circuit’s decision in Gould is illustrative of the latter view. In Gould, police officers had gone to a mobile home in the hopes of questioning the defendant about a threat to kill two judges. See 364 F.3d at 590. Another resident of the trailer consented to the officers’ entry, and indicated that the defendant was probably asleep in his bedroom. See id. at 588. Although the resident had no authority to consent to a search of the defendant’s bedroom, the officers entered it for safety reasons and found rifles that later became the subject of the defendant’s motion to suppress. See id. On appeal, the Fifth Circuit upheld the search as a valid protective sweep. Emphasizing the “balancing principle” underlying the Supreme Court’s Fourth Amendment jurisprudence and Buie’s “heavy reliance” on cases that did not involve arrests, the Court held that “arrest is not always, or per se, an indispensable element of an in-home protective sweep.” Id. at 584. More specifically, the Court declined “to adopt any across-the-board rule that a protective sweep can never be valid where the initial entry to the home is pursuant to consent, even where the consent does not of itself legally authorize the entry into the area swept.” Id. at 590. The Court reasoned that “[a]ny such rule either would require officers to forego any and all consent entries or would prevent them, once having so entered, from taking reasonable, minimally intrusive, means for self-protection when reasonable suspicion of the danger of ambush arises. … [T]he Fourth Amendment imposes no such Hobson’s choice.” Id.
Significantly, although the Fifth Circuit concluded that a protective sweep following a consent entry can be lawful, it explicitly cautioned that such searches
pose Fourth Amendment concerns not present in cases where the initial entry is pursuant to a warrant. For example, concerns might arise respecting a consent to entry requested for a stated common purpose but actually intended not for that purpose but rather for the purpose of gaining access in order to then make a protective sweep of the entire home for unrelated reasons and thus circumvent the warrant requirement. Concerns of a similar character might also arguably arise where the consent to entry is given expressly or implicitly only as to a limited area but the protective sweep extends clearly beyond that area without anything having developed since entry suggestive of greater or more imminent danger than that initially apparent just prior to entry.Id. at 589. Despite its concerns, the Court ultimately saw no need to “resolve hypothetical cases of those varieties,” concluding that the concerns were “not meaningfully implicated” on the facts of the case. See id. The Court proceeded to find the protective sweep proper. See id. at 591-93.
2. The Second Circuit’s Trilogy of Consent Entry Cases
Although the Second Circuit has not come down on either side of the Circuit split, it has been confronted with protective sweeps where law enforcement initially gained entry by consent on three occasions. See United States v. Moran Vargas, 376 F.3d 112, 113-14 (2d Cir. 2004); United States v. Gandia, 424 F.3d 255, 258-59 (2d Cir. 2005); Hassock, 631 F.3d at 81-82. …
. . .
DISCUSSION
. . .
The Court finds that the Government has failed to carry its burden of justifying the search as a lawful protective sweep, and thus does not reach the question of whether the initial entry was in fact based on valid consent. As an initial matter, the Court declines to credit Detective Smyth’s testimony about R.D. — namely, that upon seeing the police enter the Apartment, he made a break down the hallway and tried to close the door to Bedroom 1 — or the other officers’ testimony to the extent it is consistent with Detective Smyth’s. The Court does not reach that conclusion lightly, but does so for several reasons in addition to an assessment of the witnesses’ demeanor.7 First, as discussed above, Detective Smyth’s testimony on that critical issue was inconsistent in significant respects with the testimony of Sergeant Ovando and Detective Rojas. Notwishstanding the internal inconsistencies in Sergeant Ovando’s testimony, it is plain—and the Court finds — that he did not see anyone, let alone R.D., break for the back of the Apartment from the vicinity of the living room. On both his own and Detective Smyth’s accounts, Sergeant Ovando was standing in a location that would have given him a clear view of R.D. if he had been where Detective Smyth claims. (Tr. 165-69, 203, 251, 310-13; GX 1A). Further, Sergeant Ovando testified that safety — and keeping all the civilians in the Apartment in front of him — was his “primary” concern. (Tr. 251, 290, 312). Yet he acknowledged that he did not remember “see[ing] a reason why [Detective Smyth] had gone running back” (Tr. 312); did not see “anything” down the hallway despite a clear view (Tr. 313); and had not previously seen the young male who allegedly returned with Detective Smyth, either in the foyer or otherwise. (Tr. 315, 319-20). Nor did Sergeant Ovando corroborate Detective Smyth’s claim that he yelled “Stop, police!” several times as he chased R.D. down the hallway.
7 Significantly, this is not the first case in which colorable questions have been raised about the conduct and credibility of some of the officers involved in the search. At the time of the hearing, Detective Larsen had been placed on modified duty under suspicions of perjury in connection with a narcotics arrest in July 2012, based on apparent inconsistencies between his testimony about the arrest and video surveillance of the same event; Sergeant Ovando was under investigation in connection with that same arrest, for failure to properly supervised Detective Larsen by signing off on certain arrest-related paperwork prepared by him. (Letter from AUSA Edward Diskant, Dec. 18, 2013, at 1-3 (“Diskant Letter”) (filed under seal); see also Tr. 82-86, 148-51, 196-202, 263-68, 285-89, 301-02). Presumably as a result, the Government did not call Detective Larsen as a witness at the hearing. In fact, the Government advised that, if called as a witness, Detective Larsen “would be likely to invoke his Fifth Amendment privilege” about the incident. (Diskant Letter at 2 n.1).
In addition, the Civilian Complaint Review Board (the “CCRB”) found that, in connection with a narcotics arrest in August 2012, Sergeant Ovando and Detective Rojas had unlawfully engaged [*54] in a warrantless search of an apartment that they had claimed was based on consent. (Diskant Letter at 3-4; see also Tr. 268-74, 282-85, 291-95, 297, 297-300, 412-29; GX 31). Even more significant for present purposes, the CCRB found that Detective Rojas gave a “false official statement” in his interview about the incident when he denied having entered the arrestee’s bedroom. (Diskant Letter at 4; see also Tr. 416; GX 31-32). These incidents — and the officers’ testimony about them at the hearing, which the Court did not find especially credible (in light of, among other things, a review of the CCRB materials themselves (GX 31-32))—contribute to the Court’s doubts about the credibility of the Government’s witnesses. Even in the absence of evidence concerning these other incidents, however, the Court would not credit the claim that R.D. was present in the Apartment and made a break for Bedroom 1.
