{"id":4860,"date":"2010-11-06T07:27:03","date_gmt":"2010-11-06T07:01:19","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-11-06T07:01:19","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4860","title":{"rendered":"W.D.N.Y.: Wandering around house to see what officers could see during execution of arrest warrant was unreasonable"},"content":{"rendered":"

Armed with an arrest warrant, officers lawfully entered defendant\u2019s apartment to make an arrest since they had a reasonable belief he was present. Once inside, however, they roamed around to see what they could see, and this was not a valid plain view. \u201cSince the government has not shown that the agents had a lawful reason to be in the living room or kitchen, where they allegedly observed the items which were subsequently seized, the search is illegal even if the items were in \u2018plain view\u2019 from those vantage points. \u2018If the scope of the search exceeds that permitted by the \u2026 character of the relevant exception from the warrant requirement, the search is unconstitutional without more.\u2019 Horton v. California<\/a>, 496 U.S. 128, 140, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).\u201d The government did not show that a search warrant would not have inevitably been issued, so the search of those rooms was invalid. United States v. Bazzi, 2010 U.S. Dist. LEXIS 117087 (W.D. N.Y. April 21, 2010).<\/p>\n

In another order in that same case, an undercover officer going into defendant\u2019s store to buy counterfeit goods was not a search and seizure under Maryland v. Macon<\/a>. Once in the store, everything else that happened was in plain view. United States v. Bazzi, 2010 U.S. Dist. LEXIS 117024 (W.D. N.Y. April 14, 2010).*<\/p>\n

Yet a third order holds that officers have a duty to allow arrestees to get clothing and get dressed, but the officers may control the defendant throughout for officer safety. United States v. Ling Zhen Hu, 2010 U.S. Dist. LEXIS 117088 (W.D. N.Y. November 3, 2010):<\/p>\n

The second key fact making entry into the living room permissible in this case is that both defendants were in a state of undress when apprehended. Hu wore only a tank top and underwear, and Lin was dressed in a t-shirt and underwear. Numerous circuits, including the Second Circuit, recognize that a defendant\u2019s scant clothing provides exigent circumstances for a warrantless entry so as to permit a defendant to search for proper clothing. See e.g. United States v. Di Stefano<\/a>, 555 F.2d 1094, 1101 (2d Cir. 1977) (allowing an officer\u2019s entry into a bedroom solely for the purpose of maintaining control over defendant while she dressed herself); see also United States v. Gwinn<\/a>, 219 F.3d 326, 335 (4th Cir. 2000) (determining that a defendant\u2019s lack of shirt and shoes while outdoors justified an officer\u2019s warrantless re-entry into the house); United States v. Butler, 980 F.2d 619, 621-22 (10th Cir. 1992) (permitting police to retrieve a defendant\u2019s shoes from his house, but noting that entry into the house does not immediately follow from \u201cthe desire of law enforcement officers to complete the arrestee\u2019s wardrobe\u201d). Indeed, the Second Circuit has stated that officers have a \u201cduty\u201d to find appropriate clothing of a defendant upon arrest or to permit that defendant an opportunity to do so herself. DiStefano, 555 F.2d at 1101 (citing United States v. Titus<\/a>, 445 F.2d 577 (2d Cir.), cert. denied, 404 U.S. 957, 92 S. Ct. 323, 30 L. Ed. 2d 274 (1971); see also United States v. Rudaj<\/a>, 390 F. Supp. 2d 395, 401 (S.D.N.Y. 2005) (\u201cThe Second Circuit has long recognized that an arresting officer has a duty to ensure that an arrestee is sufficiently dressed before removing her from her residence.\u201d). In the fulfillment of that duty, the officer may accompany the arrestee into the residence \u201cto maintain a \u2018watchful eye\u2019 on her and to assure that she did not destroy evidence or procure a weapon.\u201d Rudaj<\/a>, 390 F. Supp. 2d at 401.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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