57 F.3d 212 (2nd Cir. 1995), 1535, United States v. Lauter

Docket Nº:1535, Docket 94-1645.
Citation:57 F.3d 212
Party Name:UNITED STATES of America, Appellee, v. Phillip LAUTER, Defendant-Appellant.
Case Date:June 12, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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57 F.3d 212 (2nd Cir. 1995)

UNITED STATES of America, Appellee,


Phillip LAUTER, Defendant-Appellant.

No. 1535, Docket 94-1645.

United States Court of Appeals, Second Circuit

June 12, 1995

        Argued May 16, 1995.

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        Steven M. Statsinger, Legal Aid Society, Federal Defender Div. Appeals Bureau, New York City (Marjorie Smith, Legal Aid Society, on the brief), for defendant-appellant.

        Eric D. Bernstein, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Zachary W. Carter, U.S. Atty., Emily Berger, Asst. U.S. Atty., on the brief), for appellee.

        Before: FEINBERG, ALTIMARI, and MAHONEY, Circuit Judges.

        ALTIMARI, Circuit Judge:

        Defendant-appellant Phillip Lauter appeals from a judgment of the United States District Court for the Eastern District of New York (Sifton, J.), convicting him, following a plea of guilty, of possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1). On appeal, Lauter challenges only the district court's refusal to suppress the firearm seized from his apartment. First, Lauter claims that the officers should not have entered his apartment to arrest him because neither the arrest warrant nor the affidavit in support of the warrant specified that address. Second, he claims that the officers recovered the weapon in the course of a full-fledged warrantless search of his apartment, rather than during a permissible protective sweep. We reject both arguments and affirm the judgment of the district court.


        On February 4, 1993, Special Alcohol, Tobacco, and Firearms ("ATF") Agent Graham obtained an arrest warrant for Lauter and a search warrant for his residence, apartment 2R at 499 Williams Avenue in Brooklyn. The warrants were issued based on an affidavit containing information received from a confidential informant ("CI") who stated that Lauter, a convicted felon, possessed a shotgun. He also stated that Lauter had recently moved to apartment 2R from a basement apartment in the same building. Although the search warrant clearly identified Lauter's residence as apartment 2R, the face of the arrest warrant did not contain an address. On the back of the arrest warrant was written, under the heading "THE FOLLOWING IS FURNISHED FOR INFORMATION ONLY," that Lauter resided at 499 Williams Avenue in Brooklyn.

        On February 7, prior to execution of the warrant, Graham learned from the CI that Lauter had moved to a second apartment in the basement of the same building. The CI acquired this information from his father, the landlord of the building. The CI also provided Graham with a description of Lauter, the basement layout, and the door of Lauter's new apartment. At approximately 8:30 the following morning, Graham and four other agents arrived at the basement apartment in which they believed Lauter was residing. After knocking and receiving no response, the agents pushed in the door and arrested Lauter, who had been roused from his sleep. The apartment, which had no windows, no kitchen, and no bathroom, consisted of two small rooms: the first room containing the door to the hallway of the basement, and an adjacent room containing a bed. Lauter was arrested in the first room.

        Special ATF Agent Bradley was the first agent to enter the back room, and a few moments later Graham saw Bradley escorting Lauter's girlfriend from the room. Bradley did not say anything to Graham. Graham immediately went into the back room to

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"back up" Bradley and to finish "conducting a security sweep of that room." The small back room contained only a nightstand and a queen-size mattress on a metal frame standing roughly three inches off the ground, with approximately three feet between the bed and the wall on either side of the bed. During his sweep, Graham looked to the left of the bed, and saw the stock of a shotgun protruding from underneath the bed. He seized the loaded gun, looked under the bed, and removed a bag of ammunition from an open drawer in the nightstand.

        Lauter was charged with possessing a firearm as a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1). Lauter moved to suppress the firearm on the grounds that the agents unlawfully entered the apartment, and that once in the apartment they conducted an impermissible full-fledged search rather than a limited protective sweep. In a written Memorandum and Order dated May 21, 1993, the district court denied the motion to suppress. The district court concluded that the agents were not required to obtain a new arrest warrant once they learned that Lauter was no longer residing in apartment 2R, given that they had probable cause to believe that Lauter was residing and present in the basement apartment. The district court explicitly rejected Lauter's reliance on Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), and United States v. Nezaj, 666 F.Supp. 494 (S.D.N.Y.1987). As to the recovery of the firearm, the district court concluded that the back room was "immediately adjoining" the room where the arrest occurred, and thus the cursory visual inspection by Graham was a permissible protective sweep under Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Lauter subsequently pled guilty pursuant to a conditional plea agreement, thereby reserving the right to appeal the denial...

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