Swept Away

United States v. Hassock, No. 09-5193-cr (2d Cir. January 28, 2011) (Miner, Parker, Raggi, CJJ)

In November of 2009, the district court granted Hassock’s motion to suppress the gun that he was charged with possessin, finding that it was the fruit of an unreasonable search of his bedroom. On the government’s appeal, the circuit agreed that the search could not be justified under the “protective sweep” doctrine and affirmed.

Background

In late 2008, an informant told an ICE agent named Christopher Quinn that someone known as “Basil” – in reality, Hassock – had a gun in his basement apartment in the Bronx. Quinn and other members of an inter-agency task force were unable to identify “Basil,” so on November 25, 2008, they went to the location specified by the informant. Their purpose was to conduct a “knock and talk” – that is, to interview the residents, try to confirm the information they had, and conduct any necessary follow-up, including arresting “Basil” if they could.

At first Quinn and the others conducted surveillance from their vehicle. Seeing nothing, they simultaneously knocked on the front and rear doors of the apartment, which was located in the basement. Eventually, a woman opened the back door. She told them that she had just woken up and did not know if anyone else was in the apartment. When they asked if they could “look around,” the woman “said yes.”

Conducting what the government claimed was a “protective sweep,” Quinn and a task-force detective went directly to what they believed was Basil’s bedroom. Quinn looked under the bed and found the gun.

After an evidentiary hearing, the district court suppressed the gun. It found that the search of Hassock’s bedroom was unreasonable and could not be justified by the protective sweep doctrine, because the doctrine did not apply. The officers were not in the apartment to “execute a warrant, enforce an order of protection, or pursuant to exigent circumstances.”

The Circuit’s Ruling

The court of appeals affirmed. It began with Maryland v. Buie, 494 U.S. 325 (1990), in which the Supreme Court held that police officers executing an arrest warrant could conduct a “quick and limited search of [the] premises” to protect their safety, but that such a search must be “narrowly confined to a cursory visual inspection of those places in which a person may be hiding.” A Buie protective sweep is analogous to a Terry patdown – it is permissible when the “searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.”

The Second Circuit has extended Buie to police activity other than the execution of an arrest warrant, authorizing protective sweeps when the entry was pursuant to “lawful process,” such as a protective order. But the requirement of a “specific facts as to the presence of a lurking danger” remains. While there is an open question – and a potential circuit split – over whether a consent entry alone can justify a protective sweep, here the circuit found that it did not need to resolve the question.

The officers here had “no legal process,” although they went with a “legitimate purpose” – the questioning and possible arrest of Hassock. But since Hassock did not answer the door, that “purpose could not be pursued until Hassock was found.” On these facts, “the sweep cannot be viewed as a reasonable security measure incident to Hassock’s interrogation or arrest.” Rather, the sweep itself “became the purpose for the agents’ continued presence on the premises insofar as they thereby searched the location for Hassock.”

At the time they conducted the sweep, the agents had no information that the woman who admitted them had the authority to consent to a full search of the premises. They had “no authority of any kind to enter Hassock’s bedroom.” Thus, the “original purpose of the ‘knock and talk’ thereupon became an illegitimate search for Hassock incident to no other lawful police conduct.” This “cannot be characterized as a protective sweep.”