S.D.N.Y.: Protective sweep was invalid, and SW predicated on it is suppressed

The government’s assertion of need for protective sweep was belied by the delay in getting around to conducting it. The product of the protective sweep made it into the search warrant application, and the product of the warrant is suppressed. United States v. Brown, 2019 U.S. Dist. LEXIS 22778 (S.D. N.Y. Feb. 12, 2019):

As time passed and the officers gained more information, any articulable fear of a hidden threat diminished. Officers on the premises, with whom Officer Palermo was in communication, noted within seconds of their arrival that Conner was “cold and stiff” and “got rigor already.” (Tr. 52; GX 5T at 3). From those remarks, the only rational inference was that Conner had been dead for some time prior to the officers’ arrival. If a threat ever existed, it would have existed at the time of Conner’s death, and the fact that some time had elapsed after his death indicated that any such threat had abated, at least somewhat.

The inference that the threat, if any, had abated is further supported by Officer Palermo’s brief delay in performing the protective sweep, and the other officers’ decision not to perform a protective sweep at all. Before conducting the sweep, Officer Palermo remained either downstairs interviewing the civilians or on the stairwell’s landing for at least four minutes. During that time, at least four other officers were on the scene upstairs, and after evaluating the circumstances, none had performed a protective sweep. Neither Officer Zaccone, who was alone with the civilians and with Conner’s body in the bedroom, nor Officer Perez, who observed Conner’s body and interviewed the civilians downstairs, testified to any apparent threat. Although the Court evaluates the facts through the eyes of a reasonable officer, not any particular officer, it is telling that several other officers encountering the same circumstances did not feel the need to conduct a protective sweep.

The government argues the exigent circumstances here—namely, the 911 call and Conner’s death and physical condition—render the search constitutional for two reasons: the existence of exigent circumstances supports an officer’s decision to perform a protective sweep, and exigent circumstances obviate concerns that the search was a pretext to unlawfully gather evidence.

The Court disagrees.

. . .

Evidence seized during an illegal search should not be included in a search warrant affidavit. See United States v. Trzaska, 111 F.3d 1019, 1026 (2d Cir. 1997) (citing Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)); see also United States v. Kurniawan, 627 F. App’x 24, 25-26 (2d Cir. 2015) (summary order) (noting evidence observed during unlawful sweep should not have been included in subsequent affidavit). While “the mere inclusion of tainted evidence in an affidavit does not, by itself, taint the warrant or the evidence seized pursuant to the warrant,” the Court must “excise the tainted evidence and determine whether the remaining, untainted evidence would provide a neutral magistrate with probable cause to issue a warrant.” United States v. Reilly, 76 F.3d 1271, 1282 n.2 (2d Cir. 1987) (quoting United States v. Vasey, 834 F.2d 782, 788 (9th Cir. 1987) (internal quotations and alternations omitted)).

The search warrant application here was based almost entirely on the gun and drugs observed during the unlawful protective sweep. Excising the tainted evidence, the warrant plainly was not supported by probable cause. Indeed, the government does not contend otherwise. Nor does the government contend that the good faith exception to the exclusionary rule, or any other exception, would save the search.

Accordingly, the evidence found during the unlawful protective sweep must be suppressed. Likewise, all evidence seized pursuant to the resulting search warrant must be suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. at 488.