W.D. N.Y.: SWAT team entry into excluded apartment for protective sweep on smelling bulk marijuana was unreasonable

The search warrant for a building specifically excluded the second floor front apartment as occupied by somebody else. When executing the search warrant for the building, the door to the excluded apartment was opened, and the officers smelled bulk marijuana. This did not justify a protective sweep under Buie. United States v. Baker, 2009 U.S. Dist. LEXIS 127395 (W.D. N.Y. December 11, 2009):

First of all, the entry into the building at 1334 Clinton Street occurred at 6:35 a.m. on February 9, 2007, and the knocking on the door of the second floor front apartment occurred within a matter of minutes thereafter. (T. 32).

The “mere propinquity” of the second floor front apartment to the second floor rear apartment does not create a justification for a protective search or sweep of that apartment. (See Ybarra v. Illinois, 444 U.S. 85, 91 (1979). “A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”).

Detective Rinaldo testified at the evidentiary hearing that he “had not heard anybody in that other [second floor front] apartment;” and that at that point in time, “there was no reason to believe that anyone else would be in that apartment.” (T. 53, 30-31).

Safety or security sweeps or searches “may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the … scene.” Maryland v. Buie, supra at 336; United States v. Moran, 376 F.3d 112, 117 (2d Cir. 2004); United States v. Miller, 430 F.3d 93, 95 (2d Cir. 2005).

As the Court of Appeals for the Second Circuit has stated:

The Buie court explicitly declined to hold that the danger inherent in executing an arrest warrant will ipso facto justify a protective sweep. … Officers must point to facts that give rise to an individualized suspicion and cannot rely solely on generalizations that suspects are usually accompanied by dangerous third parties.

United States v. Gandia, 424 F.3d 255, 263-264 (2d Cir. 2005).

The fact that Detective Rinaldo smelled a “strong [odor] of marijuana” which “smelled like bulk marijuana” did not justify a warrantless entry into the second floor front apartment for “odors alone do not authorize a search without a warrant.” Johnson v. United States, 333 U.S. 10, 13 (1948).

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.

Id. at 13-14.

Detective Rinaldo’s belief, no matter how well founded, that the second floor front apartment contained “bulk marijuana” based on what he “smelled” while standing outside that apartment, did not justify a warrantless entry into the apartment by the S.W.A.T. team for purposes of conducting a “protective search.”