DC: Entry on arrest warrant was limited to protective sweep, but here it was a full search

U.S. Marshals entered defendant’s home on an arrest warrant and, instead of just securing it, they succeeded in searching it, too. The search violated the Fourth Amendment and is suppressed. Green v. United States, 2020 D.C. App. LEXIS 240 (July 9, 2020):

Thus, on its face, Segura cannot be read as broadly holding that whenever the police need to safeguard evidence in an arrestee’s home pending the issuance of a search warrant, the Fourth Amendment permits them to enter or remain in the home and secure it from the interior in lieu of guarding it from the outside; or that evidence discovered in such warrantless intrusions will not be subject to suppression. Moreover, the Court’s subsequent decision in McArthur is plainly incompatible with such a reading of Segura. At most, Segura supports the proposition that evidence not discovered during or by means of the unlawful warrantless intrusion to secure the premises may not have to be suppressed if it is discovered later through execution of a valid, untainted search warrant or other lawful means. Hence, we agree with Professor LaFave that, even in the wake of Segura, “if the only risk is loss of evidence by someone thereafter entering the premises, then the police may not take the more intrusive step of making entry into the premises and guarding it from within while the search warrant is obtained.” Although Professor LaFave speaks of “entry” by the police, the same rule logically applies when the police extend their stay in a dwelling after their right to be there under an exception to the warrant requirement expires. In such non-exigent circumstances, absent other justification, the Fourth Amendment requires the police to guard the premises from the outside while awaiting a search warrant, and if a person with a possessory interest over the premises chooses to enter, as was the case in McArthur, the police constitutionally may escort that person inside only to ensure he does not remove or destroy evidence.

We therefore conclude that the trial court erred as a matter of law in ruling that the Fourth Amendment permitted government agents without a search warrant to enter or remain in appellant’s home for the purpose of “seiz[ing] the scene to make sure that they could locate any evidence that may be connected to the offense” after the issuance of a warrant. Because the government has provided no other sufficient legal justification for the Marshals’ initial warrantless finding of the phone in appellant’s home, nor for their continued presence or Detective Barton’s entry in that home without a search warrant, we hold that these actions violated appellant’s Fourth Amendment rights.