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1st Circuit: No Protective Sweep Where Identified Suspects Already in Custody at Time of Warrantless Search

by David Reutter

The United States Court of Appeals for the First Circuit reversed the armed bank-robbery conviction of Virgilio Diaz-Jimenez (“Diaz”), holding the warrantless search of Diaz’s home did not fit within the protective sweep or voluntary consent exceptions under the Fourth Amendment and was thus unconstitutional.

Diaz and his co-defendant, Hector Serrano-Acevedo (“Serrano”), were charged with the armed robbery of the Oriental Bank in San Lorenzo, Puerto Rico, on June 17, 2013. The robbers fled the bank in a white van, which was later found alongside a road.

The FBI and an ICE Task Force assisted in the search for the two robbers. A confidential informant advised an ICE agent that he had been in contact with the robbers, who expected him to pick them up after they emerged from their hiding place in a nearby mountainous terrain after the police helicopter left.

That afternoon, the informant was notified by the robbers that they had left their hideout and did not need to be picked up. The informant supplied the robbers’ nicknames and cellphone numbers. With the cellphone information, law enforcement tracked the phones and located Diaz at his home.

A SWAT team was called, and Serrano pulled up at a crossroads as law enforcement awaited the SWAT team. Serrano was identified by his nickname and taken into custody. A bag full of cash was found hidden in the car’s air filter. After Serrano’s arrest, law enforcement proceeded to Diaz’s home.

As the SWAT team arrived, members heard people talking in the home and the toilet flushing. Diaz and his wife came out of the home at the SWAT team’s command. Diaz was placed under arrest. The team then performed a sweep of the Diaz home and saw money on top of a bed and inside a toilet. They reported what they saw to FBI agent Rivera. He reported that Diaz provided verbal consent to search his home but refused to do so in writing. FBI agents then performed a search of the home and recovered about $24,000 in cash and a box for a pistol. The recovered cash was bound with Oriental Bank bands. After the search had been conducted, Diaz’s wife gave written consent to search.

Diaz moved to suppress the evidence recovered during the warrantless search of his home. The Government argued that the search was justified because officers were in “hot pursuit” of Diaz at the time. He countered that it wasn’t hot pursuit because the search occurred eight hours after the robbery, and he was already under arrest. The district court denied Diaz’s motion to suppress. A jury found him guilty of armed bank robbery.

Diaz appealed the denial of his motion to suppress, arguing that the search violated his Fourth Amendment rights. The Government argued that the search was justified under the protective sweep doctrine.

The First Circuit noted that a protective sweep is a “quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” Maryland v. Buie, 494 U.S. 325 (1990).

For this exception to the warrant requirement to apply, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id.

The Court observed that at the time of the purported protective sweep both Diaz and Serrano were already in custody, so the Government’s argument depends on there being “articulable facts” supporting a reasonable inference that there was a third bank robber hiding in Diaz’s home at the time of the sweep.

The Court stated that the Government did not provide any facts to support its argument that a third person may have been in the home nor did it explain why officers could not have gotten a warrant before entering the home. The informant and witnesses all stated that there were two bank robbers, and the Government failed to provide any “articulable facts” to assume that there was a third robber hiding in Diaz’s home. Thus, the Court reversed the district court’s denial of the suppression motion, so the money recovered must be excluded from evidence as “unlawful fruit of the protective sweep.”

Accordingly, the Court vacated Diaz’s conviction and remanded for further proceedings consistent with this opinion. See: United States v. Serrano-Acevedo, 892 F.3d 454 (1st Cir. 2018). 


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Related legal case

United States v. Serrano-Acevedo



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