W.D.Wash.: “Protective sweep” of house was cover story for search for evidence

The protective sweep here was excessive because it was to find evidence, not people. Also, the search for defendant’s cell phone under the guise of protective sweep meant that it was not in “plain view.” Also, Art. 36(1)(b) of Vienna Convention on Consular Relations requires a foreign national’s embassy be notified of his arrest, but failure to do so doesn’t lead to suppression of statements. United States v. Silva, 2013 U.S. Dist. LEXIS 10425 (W.D. Wash. January 25, 2013):

The Court finds government agents exceeded the scope of their lawful entry into the home and the protective sweep. First, Agent Escobar arrested Silva within a minute of their entry into the home. Silva was handcuffed without incident. Yet, government agents remained in the home, failing to depart after the arrest was completed. Instead, without a search warrant and without advising Silva of his Miranda rights, Agent Escobar questioned Silva with the purpose of obtaining incriminating evidence. The Court cannot find a reasonable basis upon which the questions posed by Agent Escobar— the presence of guns, drugs, and money as well as the location of Silva’s cell phone—related to his arrest. At oral argument the government contends the delay was justified in order to allow Silva to dress. Given the nature of Agent Escobar’s questioning, directed at locating the cell phone, not the Defendant’s clothing, the Court finds this argument disingenuous. Agent Escobar did not ask Silva where he kept his pants. Instead, in an apparent effort to skirt the lack of a search warrant, government agents remained in the home to obtain incriminating evidence. In doing so, government agents exceeded the scope of their lawful entry into the residence. The sweep for safety was quickly accomplished and there was no need to go to the bedroom except to locate the phone.

Second, the Court does not believe the discovery of the cell phone was the result of plain view. For the plain view doctrine to apply, “‘two requirements must be met: the officers must be lawfully searching the area where the evidence is found and the incriminatory nature of the evidence must be immediately apparent.'” United States v. Stafford, 416 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted). As discussed in the preceding paragraph, although government agents had authority to enter the Silva home for the purpose of arresting him and to conduct a sweep for their own protection, the scope of that authority was exceeded when after arresting Silva, they remained to conduct a fishing expedition in an effort to locate the cell phone. …