Fourth Department – Warrantless entry: People v. Swank

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Warrantless entry — Protective Sweep

People v. Swank

KA 24-00123

Appealed from Oswego County Court

Background: The defendant appealed from his conviction of criminal possession of a controlled substance. He argues that his home was unlawfully searched and that the emergency exception to the warrant requirement does not apply.

Ruling: The Appellate Division reversed. The court noted that the defendant was arrested after a four hour standoff when he exited his residence and surrendered without incident. The police performed a protective cursory sweep of the defendant’s residence after he was arrested. The court held that once the defendant, his daughter, and his wife exited the dwelling, the officers knew that no one else was in the dwelling requiring a sweep to ensure no evidence was destroyed or that no one was in the home that could pose a threat or was in need of assistance.

Bradley E. Keem, of Keem Appeals, for the defendant-appellant; Amy L. Hallenbeck, of the district attorney’s office, for the respondent.

Oral argument video