         11-0540-cr
         United States v. Fann

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21st day of February, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                         Circuit Judges,
 9                ROSLYNN R. MAUSKOPF,1
10                         District Judge.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellant,
17
18                      -v.-                                                11-0540-cr
19
20       JERMAINE L. FANN,
21
22                                     Defendant-Appellee.
23
24
25       FOR APPELLANT:                MONICA J. RICHARDS, Assistant United
26                                     States Attorney, for William J. Hochul,
27                                     Jr., United States Attorney for the
28                                     Western District of New York, Buffalo,
29                                     NY.

                1
                Judge Roslynn R. Mauskopf, of the United States District
         Court for the Eastern District of New York, sitting by
         designation.
 1   FOR APPELLEES:     TRACY HAYES, Assistant Federal Defender
 2                      (Hillary K. Green, Of Counsel, on the
 3                      brief), Federal Public Defender’s Office,
 4                      Western District of New York, Buffalo,
 5                      NY.
 6
 7        Appeal from the United States District Court for the
 8   Western District of New York (Skretny, J.).
 9
10       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11   AND DECREED that the judgment of the district court be

12   AFFIRMED.

13       The United States appeals from an order of the United

14   States District Court for the Western District of New York

15   (Skretny, J.), which granted Defendant-Appellee’s motion to

16   suppress evidence obtained by police as the fruit of an

17   unlawful entry.   We assume the parties’ familiarity with the

18   underlying facts, the procedural history, and the issues

19   presented for review.

20       We find no error in the district court’s grant of

21   Appellee’s motion to suppress evidence in this case.     Under

22   the Fourth Amendment, “warrantless searches are per se

23   unreasonable, subject to a few well-delineated exceptions.”

24   United States v. Oguns, 921 F.2d 442, 446 (2d Cir. 1990)

25   (internal quotation marks omitted).   One exception to this

26   rule is the protective sweep incident to a lawful arrest,

27   which permits officers to “conduct a limited security sweep

                                   2
1    of the premises if they possess a ‘reasonable belief based

2    on specific and articulable facts that the area to be swept

3    harbors an individual posing a danger to those on the arrest

4    scene.’”   Id. (quoting Maryland v. Buie, 494 U.S. 325, 337

5    (1990)).

6        In part because the Government did not submit any

7    affidavits or other evidence before the district court to

8    develop the record, the Government fails to identify

9    specific, articulable facts that demonstrate that the

10   officers who conducted the search of the residence

11   reasonably believed that an individual was present at the

12   time of Fann’s arrest and that such individual posed a

13   danger to them.   Because the officers lacked this reasonable

14   belief, their warrantless search of the residence violated

15   Fann’s Fourth Amendment rights.   The evidence obtained

16   through the search was properly suppressed.

17       For the foregoing reasons, the judgment of the district

18   court is hereby AFFIRMED.

19
20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
23




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