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W.D. N.Y.: SWAT team entry into excluded apartment for protective sweep on smelling bulk marijuana was unreasonable

By John Wesley Hall, Jr.

The search warrant for a building specifically excluded the second floor front apartment as occupied by somebody else. When executing the search warrant for the building, the door to the excluded apartment was opened, and the officers smelled bulk marijuana. This did not justify a protective sweep under Buie. United States v. Baker, 2009 U.S. Dist. LEXIS 127395 (W.D. N.Y. December 11, 2009): First of all, the entry into the building at 1334 Clinton Street occurred at 6:35 a.m. on February 9, 2007, and the knocking on the door of the second floor front apartment occurred within a matter of minutes thereafter. (T. 32). The “mere propinquity” of the second floor front apartment to the second floor rear apartment does not create a justification for a protective search or sweep of that apartment...continue to full post

Full post as published by Fourth Amendment on June 16, 2010 (boomark / email).