September 30, 2019

A Cup of Joe | “Who’s Watching the Baby?” Excuse Used To Enter Home Without Warrant

This week’s case takes us to Erie County in the region of the state called Western New York. (Not West New York, that’s New Jersey). It includes the cities of Rochester, Niagara Falls, Jamestown, and Buffalo. Buffalo was given the nickname “Queen City.” With nearly 259,000 residents, it’s second only to New York City in population. It’s a 7-hour ride northwest from Manhattan, and a 2½ hour ride west from Syracuse.

In 1842, Joseph Dart and Robert Dunbar invented the first grain elevator for unloading and storing shipments that came through the Erie Canal. One of Buffalo’s last working grain elevators produces all of the East Coast’s Cheerios. In the areas close to the facility the sweet smell of toasted cereal fills the air.

In November of 2014, seven feet of lake-effect snow was dumped on the Queen City over the course of three days.  Even with all that snow, city law there prohibits the throwing of snowballs, except in designated areas. The law is the law.

But this case is not about snowball fights or great cereal – it is about the right to be left alone from the government. Or not left alone.


Michael Sweat, a guy; his brother, Feducious (Fed); Jez, Fed’s common law wife and mother of their infant child.; Officer Krupke, the arresting officer.


It was midnight on the porch of a house in Buffalo. People are hanging out on the porch when the police pull up, enter the house without a warrant and arrest Michael Sweat for possession of a firearm.


Testimony of Jez -- The Mother

Q: Where were you at midnight on the night of…?

A: I was sleeping and I woke up when I heard the baby start crying. I went to the kitchen to get a bottle and saw police lights outside. When I came back from the kitchen, police officers were already searching the living room.

Q: Was anyone else there?

A: My guy, Fed, the baby’s dad, was with his brother, Michael, out on the porch.

Q: You knew Michael well?

A: I knew him very well, cause he lived with us most of the time.

Q: Did you say anything to the police?

A: Yeah, I was like, what are you doing? And one cop goes, you know, “We found a gun” or whatever; and he says, “If you don’t cooperate and sign this permission-to -search form I am going to call Child Protective Services. And they will take the baby away from you.

Q: What did you do?

A: I signed the form. What was I supposed to do?

Testimony of Officer Krupke –Direct Examination

Q: Officer, can you tell the court please, what happened on the night of…

A: It was midnight. I was traveling in a marked patrol vehicle when I saw Mike Sweat standing on the porch of a home. After Sweat looked in my direction, I observed Sweat turn around and run into the home. I then pulled the cruiser to the side of the road and proceeded on foot to the porch, where I encountered Sweat as he reemerged from the home.

Q: And did you say anything to him at that time?

A: I asked, “What are you doing here?”  When Sweat did not respond, I conducted a search of the home and found a gun in a front closet near the entrance to the porch. I then placed Sweat under arrest.

Cross-Examination by Sweat’s Attorney

Q: When you spoke to my client when he came back outside, you recognized him, correct?

A: Yes. I had encountered Sweat on a daily basis and knew that he had prior gun-related arrests.

Q: And you asked him a question, but he did not answer you, correct?

A: Correct.

Q: Why, then, Officer Krupke, did you go in the house? No one told you that you could, correct?

A: No one told me that I could go in. But I heard a baby cry.

Q: The baby gave you permission?



A:  Sir, an individual who's known to carry guns entered that house running into that house actually, coming out acting nervous, there's a baby crying in the house, WHO IS TAKING CARE OF THE BABY? Right? So I go in to make sure the baby is okay.

Q: When you are in the house you see the baby on the couch, correct?

A: I observed a baby crying on a couch and a woman emerging from the kitchen with a bottle. I told her that an individual ran inside the house and may have brought an object inside that could hurt her children.

Q: You did not tell the woman that you knew the “individual” by name?

A: I did not mention Sweat’s name to the woman.

Q: An "individual” could have meant a stranger, correct?

A: It could have.

Q: And the woman gave you permission to search her home?

A: Yes. The woman orally consented to a search of the home, and a gun was found in the front closet. Thereafter, a written permission-to-search form was presented to the woman for her signature, and she signed it.


Your Honor, the conversation during which Officer Krupke informed Jez that an unidentified "individual" had come into the home and may have placed therein an object that could hurt her children, were intentionally misleading and made in order to deceive Jez into giving her consent. And the fact that the officer threatened the mother of a newborn that they would call Children’s Protective Services if she did not sign the permission form is reprehensible. We move to suppress the search and that the case be DISMISSED.


Your Honor, If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.

COURT: Well, counsel, You’re assuming that you know what a duck is and what it looks like. You could be wrong about either.

ATTORNEY: Well, Your Honor, I…

COURT: What makes you so sure you could tell the difference between a goose and a duck at first glance?

ATTORNEY: I get your point, Judge. My point is that the officer had a good faith belief that there was a baby in danger…

COURT: I understand your point very well, counsel. But the fact is that the officer engaged in flagrant misconduct. Without having witnessed any illegality, the officer entered a private residence without permission, after midnight, while a woman in that residence was trying to feed her newborn child, and coerced her into consenting to a search of her home.

Also, the officer, by withholding Sweat’s name from the woman, intentionally misled her into giving consent to search.

ATTORNEY: Your Honor, I understand….but a bad guy gets away here…

COURT: Counsel, your objection is noted. The gun was come at by exploitation of illegal police action The gun, and any statements made by Sweat, are suppressed. The “Who’s Watching the Baby?” Excuse is rejected. That’s it! Adjourned!

Michael Sweat’s case is thrown out.

The next time you are having a delicious bowl of toasted Cheerios, or watching a snowball fight, remember this lesson from Buffalo: THE LAW IS THE LAW.

Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2019/2019_02240.htm

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