NY3: No exigency justified this entry; exclusionary rule applies in NY probation revo proceedings

There was no emergency basis for entry into defendant’s apartment, a probationer. The police understood that another person might be there who they were curious about. Still, there was no justification for the warrantless entry with gun drawn at midnight. She said she was alone, and then the officer swept the premises finding the other person. “Further, even had Carmichael’s initial entry been lawful, his subsequent search of defendant’s apartment was not. A protective sweep 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’.” “Evidence that is unlawfully seized cannot be used as a basis for revoking a probationary sentence … and, as we have concluded, the search of defendant’s apartment was unlawful.” People v. Sears, 2018 NY Slip Op 04980, 2018 N.Y. App. Div. LEXIS 4945 (3d Dept. July 5, 2018).