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Evidence found by police while conducting a protective sweep of an apartment they entered with the occupant’s consent has been suppressed by a federal judge.

Addressing an “unsettled” question of law in the Second Circuit courts, Southern District Judge Jesse Furman (See Profile) said police violated the Fourth Amendment’s prohibition against unreasonable searches and seizures in a 2012 sweep of a Bronx apartment.

Furman acknowledged that “under certain circumstances, law enforcement officers may engage in a protective sweep whether they gained entry through consent in the first instance.” But in United States v. Fadul, 13 Cr. 143, Furman said the protective sweep of defendant Judith Fadul’s home was “unlawful.”

Furman explained in his opinion that there were dramatic differences in the version of events offered by the police and the defendants.

Police went to Fadul’s Claflin Avenue apartment on Sept. 10, 2012 on a complaint of marijuana smoking. They smelled it and, they claimed, were given consent to enter.

Once inside the fourth-floor apartment, police engaged in a protective sweep and recovered a gun, drugs, drug paraphernalia, counterfeit U.S. currency and counterfeiting equipment.

Several people were arrested, including Fadul, Kenneth Garcia and Yasmine Delarosa—three defendants who would later argue the evidence should be suppressed.

Delarosa claimed that officers had “pushed” their way into the apartment, but the government contended Delarosa consented to their initial entry.

One police officer said the sweep was conducted only after he saw Fadul’s 15-year-old son, R.D., run to the back of the apartment and try to close a bedroom door where much of the contraband was discovered.

In his analysis, Furman said the Second Circuit has held the protective sweep doctrine extends beyond the context of an arrest warrant to allow police to do sweeps pursuant to “lawful process, such as an order permitting or directing the officer to enter for the purpose of protecting a third party,” United States v. Miller, 430 F.3d 93 (2d Cir. 2005).

The Miller court emphasized that when police officers “are inside a home—ordinarily an enclosed, unfamiliar space— they are particularly vulnerable to surprise attacks.”

Furman said the circuit has not directly addressed protective sweeps in the context of consent to enter, but its cases “point the way toward a modified protective-sweep doctrine in such circumstances.”

“On the one hand, allowing law enforcement officers to engage in a warrantless protective sweep where they have entered in the first place based on consent might enable and encourage officers to obtain that consent as a pretext for conducting a warrantless search,” he said. “It also threatens to undermine the well-established principle that a person can limit the scope of his or her consent to search a particular area.”

But on the other hand, he said, “categorically prohibiting law enforcement officers from taking limited steps to ensure their safety if they have entered the home based on consent would undoubtedly jeopardize the safety of officers and, by extension, cause some officers to forgo consent entries all together.”

Here, he found, the police differed among themselves on whether they saw R.D. running back through the apartment toward a bedroom door.

The judge said he could not credit the testimony of one officer who claimed to have seen R.D. because other officers gave contradictory testimony. And the judge also credited Fadul’s testimony that she and R.D. were not even in the apartment when police were first allowed in.

“Even considered together, the smell of marijuana, the number of civilians present, and the presence of another person … does not even come close to justifying a protective sweep,” he said. “On the government’s view, a protective sweep would be justified any time the police were lawfully present in a home and had reason to believe that someone elsewhere in the home was using drugs.”

The police, he said, “lacked an objectively reasonable basis to conduct a protective sweep.”

Assistant U.S. Attorneys Amy Garzon and Edward Diskant represented the government.

Jonathan Marvinny of Federal Defenders of New York represents Judith Fadul.

Florian Miedel of Miedel & Mysliwiec represents Garcia.

Daniel Parker of Parker & Carmody represents Delarosa.

The three defense attorneys issued a statement, saying “the court’s through and detailed analysis helps clarify the rights of individuals and the limits of law enforcement officers when conducting a search of a person’s home.”