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A federal appeals court has found that the police were not justified in conducting a protective warrantless sweep of a defendant’s apartment, which led to his arrest and subsequent conviction on weapons possession charges. Reversing a lower court, the 2nd U.S. Circuit Court of Appeals found that a police search that recovered a gun and ammunition during a protective sweep failed to pass muster under the Fourth Amendment because there were no facts showing the swept area might harbor an individual posing a danger to the police. The ruling in United States v. Gandia, 04-6477-cr, by 2nd Circuit Judge Robert Sack, sought to clarify and reiterate limits on protective sweeps, which under Maryland v. Buie, 494 U.S. 325, are allowed, without a warrant, where officers are concerned that a dangerous person may be hiding on the premises. The search occurred on Nov. 28, 2003, when a police sergeant and two officers responded to a call on a dispute between a tenant and a superintendent at an East 151st Street building in the Bronx. The report received by officers indicated one of the parties might be wielding a gun. On arrival, the police spoke with superintendent Pablo Suarez, who said that tenant Edward Gandia had threatened him and appeared to have pulled what might have been a gun from his waistband. The officers spoke with Gandia and frisked him, finding nothing. Then, out of a desire to get out of the rain, interview Gandia in a more private setting and keep him separated from Suarez, the police persuaded him to take them to his apartment. According to the sergeant’s version of events, while two officers spoke with Gandia, the sergeant walked across the front room to an open doorframe, where he could look into an adjoining living room. There, he noticed at the far end of the living room, standing upright on a home entertainment center, what appeared to be a bullet. When Gandia was asked about the bullet, he said it was a fake. But the sergeant picked it up, saw that it was marked .45 caliber and said it “looks real to me.” Under another version of events, one of the officers said he joined the sergeant in the living room and that he noticed the bullet on the entertainment center. After checking an adjoining bedroom to make sure no one else was there, the officer retrieved the bullet and handed it to the sergeant, who then confronted Gandia. The police asked for consent to search the apartment, but Gandia refused and the sergeant instructed the officers to leave and obtain a search warrant. They returned with a warrant in hand, searched the apartment and found a gun and additional ammunition. Southern District of New York Judge William Pauley denied Gandia’s motion to suppress the physical evidence and his statement that the bullet was a “fake.” Gandia was then convicted in a bench trial held on stipulated facts. He was sentenced to serve 7 years in prison. His appeal was heard by Sack, Judge Chester Straub and Connecticut District Judge Mark Kravitz, sitting by designation. Writing for the panel, Sack said that, “Unlike most warrantless searches, which focus on the immediate danger posed by a suspect, a Buie protective sweep allows for officers to stop a potential ambush by searching for unseen third parties,” with a “quick and limited search of the premises.” Sack said that a majority of other circuits that have confronted the issue “have expanded Buie to authorize protective sweeps even when officers have not entered a suspect’s home pursuant to an arrest warrant,” reasoning that the police safety rationale applies equally to both circumstances. But he said there was “something less than a consensus,” with some courts focusing on the issue of whether or not such a sweep was “incident to arrest.” “Although we need not decide this issue, we do note that when police have gained access to a suspect’s home through his or her consent, there is a concern that generously construing Buie will enable and encourage officers to obtain that consent as a pretext for conducting a warrantless search of the home,” he said. “This sort of pretext may be less likely when police enter a home with a search warrant … upon probable cause combined with exigent circumstances … or pursuant to the ‘danger exception’ to the normal requirement that officers knock and announce themselves.” “In the first circumstance, a warrant would, in any event, have been obtained through judicial process; and in the latter two circumstances, the presence of emergent conditions in effect assures that the officers have a non-pretextual reason for entering the premises,” Sack said. NO REASON TO ENTER But here, Sack said, unlike situations where police enter a home to execute a search warrant or under exigent circumstances, there was “no need for the police officers to enter Gandia’s home in the first place.” “There was also nothing preventing the officers from making explicit any concern they may have had about the presence of others in Gandia’s apartment and seeking his express permission for a search of other rooms,” he said. The police officers’ “articulable facts” justifying the sweep were that Gandia had been in a heated argument, might have had a gun, had stated, without being asked, that he did not have a gun, and was found not to have a gun on his person when frisked. “Even if these facts support a reasonable inference that Gandia was hiding a gun in his apartment, we do not see how they support the inference that there was a person hiding in the apartment who might use it,” Sack said. The ruling did not clear Gandia, however, as the 2nd Circuit remanded the case to Pauley for additional fact-finding on whether Gandia consented to the police officers’ entry into the living room and other areas of the apartment, where they saw the bullet. Neil B. Checkman represented Gandia. Assistant U.S. Attorneys Sarah Y. Lai and Peter G. Neiman represented the government.

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