United States v. Delva
2017 U.S. App. LEXIS 9645
| 2d Cir. | 2017Background
- Police executed an arrest warrant at a ~500 sq ft Bronx apartment to arrest Gregory Accilien in connection with a violent kidnapping/robbery; four adult males (including defendant David Delva) were present.
- During a two-minute protective sweep incident to Accilien’s arrest, agents observed and seized a plastic bag of suspected drugs and a firearm in a bedroom closet.
- After securing and handcuffing the occupants in the kitchen, officers briefly left and then reentered the bedroom with Accilien to question him privately; during that reentry they observed and seized Delva’s cellphone(s) and letters addressed to Accilien.
- Delva moved to suppress the cellphone(s) and the letters as warrantless seizures; the district court denied suppression, finding the items were in plain view during a protective sweep; the court had earlier denied suppression of the drugs and gun.
- At trial Delva was convicted of various conspiracy and firearms offenses; he appealed principally contesting the denial of suppression and raising evidentiary, juror-replacement, and sentencing challenges. The Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Delva) | Held |
|---|---|---|---|
| Were the cellphone(s) and letters lawfully seized without a warrant? | Items were observed in plain view during a lawful protective sweep incident to Accilien’s arrest, so seizure without a warrant was permissible. | The cellphone and letters were observed and seized only after the protective sweep had been completed; officers reentered the bedroom without consent or a warrant, so Fourth Amendment protection was violated. | Although the district court erred in finding the items were seized "during" the protective sweep, the officers’ warrantless reentry was justified by exigent circumstances (need to privately question Accilien to identify the owner of drugs/gun in a cramped apartment). Items were in plain view and suppression was denied. |
| Was admission of FV’s testimony that she was raped during the home invasion unduly prejudicial? | The rape evidence was relevant to the manner and violence of the charged conspiracy offenses and thus admissible. | Delva argued he was neither a participant nor could reasonably foresee rape; admission was prejudicial. | District court did not abuse discretion admitting the evidence; it was relevant to conspiracy and not unfairly prejudicial. |
| Was removal of Juror No. 7 during deliberations improper? | Court found juror had been untruthful on voir dire about criminal history, creating possible bias and justifying dismissal for cause. | Delva objected to removal and replacement after deliberations had begun. | Replacement for good cause was within the judge’s discretion; alternate juror substituted and deliberations restarted—no abuse of discretion found. |
| Was Delva’s sentence improper for relying on conduct underlying acquitted counts? | Court may consider acquitted-conduct at sentencing if proved by a preponderance; court relied on trial evidence and credibility findings to impose a 360-month sentence. | Delva argued sentencing impermissibly punished acquitted conduct and findings were clearly erroneous. | No procedural or substantive error; district court’s findings were not clearly erroneous and sentence was within permissible range. |
Key Cases Cited
- Welsh v. Wisconsin, 466 U.S. 740 (Supreme Court) (warrantless home entries presumptively unreasonable)
- Kentucky v. King, 563 U.S. 452 (Supreme Court) (warrant requirement subject to exceptions; officers cannot rely on their own violation to justify plain-view seizure)
- Brigham City v. Stuart, 547 U.S. 398 (Supreme Court) (reasonableness standard and exigent-circumstances exception)
- Maryland v. Buie, 494 U.S. 325 (Supreme Court) (protective sweep doctrine and its limits)
- Horton v. California, 496 U.S. 128 (Supreme Court) (plain-view seizure principles)
- Minnesota v. Dickerson, 508 U.S. 366 (Supreme Court) (plain-view/plain-feel seizure standards)
- Mincey v. Arizona, 437 U.S. 385 (Supreme Court) (limited, specifically established exceptions to the warrant requirement)
- Payton v. New York, 445 U.S. 573 (Supreme Court) (arrest warrants permit entry into residence where suspect is believed to be)
- United States v. MacDonald, 916 F.2d 766 (2d Cir.) (nonexhaustive factors for exigent-circumstances analysis)
- United States v. Oguns, 921 F.2d 442 (2d Cir.) (once dangers justifying a protective sweep are eliminated, police must leave unless other exigencies exist)