Record supports the USMJ’s conclusion that the officers’ repeated requests to enter the defendant’s premises amounted to coercion. Furthermore, a protective sweep of the premises was unjustified because there was no reason to believe anybody was inside. The defendant made a disturbance call. The smell of marijuana is all that was not tainted by the illegal entry, so the warrant was suppressed. United States v. Ortega, 2007 U.S. Dist. LEXIS 82514 (M.D. Fla. November 6, 2007):<\/p>\n
Both officers consistently testified that defendant was very reluctant to allow them to enter the residence, and only agreed after being told that the officers were concerned for the safety of people inside the house and “needed” to check it (Doc. # 41 at 10) or that the officers “need to clear the residence,” (Doc. # 41 at 22, 24), or they “needed to verify that there is nobody else injured inside the house” (Doc. # 41 at 63, 67). While the officers believed defendant’s acquiescence to their claimed authority constituted consent by defendant, the Court concludes that under the totality of the circumstances they were incorrect. See, e.g., Denehy v. State<\/em>, 400 So. 2d 1216, 1217 (Fla. 1980)(noting that repeated requests for consent to search can constitute coercion.) Accordingly, the entry into the residence cannot be justified under the consent exception to the search warrant requirement. The government’s objection is overruled, and this portion of the Report and Recommendation is accepted and adopted.<\/p>\n
. . .<\/p>\n
At the time of the entry, defendant had not been arrested and was not viewed as a suspect; rather, he was the victim of an assault which had taken place outside the residence. No suspects were believed to be in the residence; at best, the officers simply did not know who else was in the residence, if anyone. The officers’ lack of information cannot justify a warrantless protective sweep. United States v. Chaves<\/em>, 169 F.3d 687, 692 (11th Cir. 1999). There was no contradiction between what defendant said and the information known to the officers. The suspects were reported to have left the area, and there was no report that more than one victim was involved. There was no reason to disbelieve defendant’s statement that everything was alright at the time of the officers’ arrival. …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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