Posted On: December 26, 2012 by Marc Neff

Court Grants Motion to Suppress Based on Warrantless Search Where No Exigent Circumstances Existed

In United States v. Delgado, 2012 U.S. App. LEXIS 24549 (7th Cir. Nov. 29, 2012), Appellant's convictions for being a felon in possession of a firearm and possession of an unregistered firearm were the result of police officers' warrantless search of his apartment.

On December 29, 2010, a Milwaukee police officer responding to a report of gunshots near the 1900 block of South 12th Street saw a Hispanic male running towards a building at 1830 South 13th Street. A witness then told the officer that her cousin Adrian Aviles had been shot by a black male and that he was hiding in an apartment in that building. After police officers approached the apartment and knocked, Defendant Luis G. Delgado, who was the Hispanic male seen earlier, and Aviles, the shooting victim - who had a visible graze wound on his wrist - came out of the apartment. The officers detained Delgado in the squad car and then, without a warrant, entered and searched his apartment finding various firearms.

Delgado was indicted for being a felon in possession of a firearm and for possessing an unregistered firearm. Delgado moved to suppress. Both the magistrate judge and the district court agreed that the warrantless search was not justified by exigent circumstances, but the district court found that the search was a valid protective sweep and denied Delgado's motion. Pursuant to the conditional plea agreement, Delgado pled guilty and was sentenced to a year and a day of imprisonment.

The Court of Appeals disagreed, finding that absent any verbal or non-verbal indication from the victim, the witness, or Delgado that anyone else was in the apartment or that the victim or Delgado had been subjected to violence inside the apartment, the mere fact that the shooter was generally at large was not enough for a reasonable officer to believe that the shooter was specifically in the apartment. Because the search was not a valid protective sweep and was not justified by the exigent circumstances exception to the warrant requirement, the district court erred in denying appellant's motion to suppress the firearms. For these reasons, appellant's convictions were vacated and the case was remanded to the district court with instructions to grant the suppression motion.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at