United States v. McMullen ( 2016 )

SUMMARY ORDER

Defendant-appellant Antwon McMullen appeals from a judgment of conviction in the United States District Court for the Northern District of New York (Suddaby, C.J.). McMullen challenges the District Court’s denial, without an evidentiary hearing, of his motion to suppress physical evidence (principally cocaine base and a firearm) seized from 177 Kuhl Avenue in Syracuse, New York. We assume the parties’ familiarity with the facts and record of the prior proceedings, to which we refer only as necessary to explain our decision to affirm.

McMullen contends that the search of 177 Kuhl Avenue was unlawful because police used evidence obtained during an initial warrantless protective sweep as a factor in their decision to procure a search warrant for the premises. He argues that the law enforcement officers who conducted the sweep must either have observed the firearm and cocaine base in plain view or discovered those items through an unlawful search of the residence. We are not persuaded. In connection with his motion, McMullen failed to allege that these items were in plain view, or that the police referenced them in the search warrant application. Nor does the record reveal that the police conducted a search prior to the execution of the search warrant. McMullen admitted that he “could not see what [the officers] were doing from where [he] was seated” during the officers’ initial entry into 177 Kuhl Avenue. Def s. App’x at 42; see Murray v. United States, 487 U.S. 533, 542, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (suppression of seized evidence is required if law enforcement’s “decision to seek the warrant was- prompted by what they had seen during the initial [warrantless] entry”); United States v. Johnson, 994 F.2d 980, 986-87 (2d Cir. 1993). The District Court correctly denied McMullen’s motion to suppress under the independent source exception. See Murray, 487 U.S. at 542, 108 S.Ct. 2529.

. McMullen also argues that the District Court erred in declining to hold an eviden-tiary hearing. But an evidentiary hearing on a motion to suppress is required only if “the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” United States v. Watson, 404 F.3d 163, 167 (2d Cir. 2005) (quotation marks omitted). McMullen’s declaration included no nonconjectural allegations in support of his argument for suppression. The District Court therefore acted within its discretion when it denied McMullen a hearing. United States v. Getto, 729 F.3d 221, 226 n.6 (2d Cir. 2013).

We have considered all of McMullen’s remaining arguments and conclude that they are without merit. Accordingly, the judgment of the District Court is AFFIRMED.