In United States v. Winston, the First Circuit reverses the District Court's suppression of $58,000 in cash, a scale with white powder residue, a hand gun, and ammunition, which were found in a safe in the defendant's basement. The case came before the First on the Government's interlocutory appeal, and, not surprisingly, the panel acted to save the case for the prosecution. The District Court found that the observation used to obtain a search warrant was made during an unreasonable search of the defendant's basement during a so-called "protective sweep" incident to his arrest.
Winston was indicted as part of an investigation of a large-scale cocaine traffickng organization. Agents went to his residence to arrest him on the indictment. The agents knew his car and saw it at the duplex where he lived. They did not recall seeing other cars in the driveway or near the house. They knew that Winston had recently bought two handguns and a bullet-proof vest. They watched the house for an hour and a half, and saw nothing. They screwed around at the front door with his girlfriend, who said she didn't know him and maybe he lived next door in the other half of the duplex. They knocked next door and got no answer. They went back to his door, the girlfriend answered again, and this time one of the agents recognized her as Winston's girlfriend. They pushed past her and called out for Winston. He responded from upstairs, calling out "up here." The agents go up the stairs with guns drawn, and place Winston in custody. They do not conduct a protective sweep of the second floor.
At this point, most of the agents went upstairs, guns drawn, and confronted Winston. He complied readily with their instructions and was placed in handcuffs. The agents then asked for ID. Winston told them it was in the nightstand in the bedroom. They brought him into the bedroom and asked him again. He gestured to the nightstand. The agents opened the drawer and found Winston's wallet on top of a large pile of cash. The Court found that this was a consent search.
A Massachusetts State Trooper went immediately to the basement upon the Agents' entry inot the house. While there, he peered behind the furnace, where he saw a blanket covering an object. He pulled back the blanket, and found a safe measuring twenty four inches high by seventeen inches wide by twenty seven inches deep. this is the safe that was eventually searched pursuant to a search warrant.
The Court wrote that the trooper moved the blanket because it covered "a space large enough for a person to hide." It is not clear whether any of Winston's associates were "little people". Obviously, the Court thought it was a possibility.
The majority held that the search of the basement, even without any objective facts suggesting that someone unaccounted-for might be in the house, was within the scope of the warrant exception established by Maryland v. Buie. The majority writes that "we are not here to second-guess the agents as to how to conduct a protective sweep. . . " Well, yeah, you are, when the question is whether it was within the parameters of Buie.
Read Judge Stahl's dissent for a discussion of why this decision is erroneous.
