S.D.N.Y.: Arrest task force’s protective sweep of house unjustified or excessive

Arrest task force team searched defendant’s house without a search warrant, and it is suppressed. No theory for exigency works for the government. The protective sweep, even if valid, was excessive. United States v. Barone, 721 F. Supp. 2d 261 (S.D. N.Y. 2010)*:

In this case, because the Task Force arrest team searched Barone’s home without a warrant, the government must establish that one of the recognized exceptions to the warrant requirement applies. We therefore analyze the constitutionality of the agents’ conduct as follows. First, we assess the basis for the entry and search of Barone’s home following his arrest in the driveway. We find that, because the entry and initial search cannot be justified under either strand of the “protective sweep” doctrine — or under any other exception to the warrant requirement — that entry violated Barone’s constitutional rights. Alternatively, and assuming, arguendo, that the agents were within constitutional bounds when they entered the house and commenced a “protective sweep,” we find that Detective Arrigo’s seizure of the handgun from the bedroom closet exceeded the limited scope of protective sweeps because none of the incriminating contents of the gift bag were in “plain view.” Under either analysis, we hold that the first gun was unlawfully seized and therefore must be suppressed.

“AEDPA’s § 2254(d) does not circumvent or override Stone v. Powell.” Hillman v. Beightler, 2010 U.S. Dist. LEXIS 63564 (N.D. Ohio April 19, 2010).