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Can New Jersey Police Enter a House Without Warrant?


by in Criminal Defense, Juvenile Defense

Can police in New Jersey enter your home or search your house without a warrant. This is a common question. Unfortunately, the answer is: it depends. In many criminal defense cases in NJ, police end up at a suspects house looking for evidence or the suspect himself. Usually the police are looking for drugs, CDS, weapons or other evidence. Luckily, New Jersey places a high standard on home entries and searches.

The Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution prohibit “unreasonable searches and seizures” by government officials, and our constitutional jurisprudence expresses a preference that those officials secure warrants issued by neutral and detached magistrates before executing a search, particularly of a home. Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948); State v. Sullivan, 169 N.J. 204, 210 (2001); State v. Kasabucki, 52 N.J. 110, 115-16, (1968); State v. Frankel, 179 N.J. 586, 597-98 (2004).

A warrantless search is presumed invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). The burden is placed on the State to prove that the search “‘falls within one of the few well delineated exceptions to the warrant requirement.’” Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001).

“An individual’s privacy interests are nowhere more clearly defined or rigorously protected by the courts than in the home, the core of Fourth Amendment rights.” Johnson, supra, 168 N.J. 608, 625 (2001). Therefore, “[a] warrantless search of a person’s home ‘must be subjected to particularly careful scrutiny.’” State v. Cassidy, 179 N.J. 150, 160 (2004) (quoting State v. Bolte, 115 N.J. 579, 583, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989)).

The New Jersey Supreme Court set out the heavy burden that the State bears when justifying a warrantless entry and search of a home by stating:

[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Accordingly, it is well established that searches and seizures inside a home without a warrant are presumptively unreasonable, and hence prohibited by the Fourth Amendment, absent probable cause and exigent circumstances.

[State v. Hutchins, 116 N.J. 457, 463 (1989)(citations and quotation marks omitted).] A homeowner has a right under our federal and state constitutions to insist that a police officer obtain a warrant before entering and searching his house. See State v. Bolte, supra, 115 N.J. at 583-84; see also Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973). The assertion of that constitutional right, which protects the most basic privacy interests of our citizenry, is not probative of wrongdoing and cannot be the justification for the warrantless entry into a home. Ibid.

The community caretaking exception was recently expanded to certain searches of the home. State v. Witczak, 2011 N.J. Super. LEXIS 62 (App. Div. 2011).

The community caretaker exception asks whether the police are “engaged in ‘functions, [which are] totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a statute.’” Ibid. (quoting State v. Navarro, 310 N.J. Super. 104, 109, 708 A.2d 416 (App. Div.), certif. denied, 156 N.J. 382 (1998). The emergency aid exception focuses on “‘(1) the existence of an emergency as viewed objectively, (2) a search not motivated by a desire to find evidence and (3) a nexus between the search and the emergency.’” Id. at 161,
Another predominant exception to the warrant requirement is for exigent circumstances. Cassidy, supra, 179 N.J. at 160. Under this exception, “circumstances have been found to be exigent when they ‘preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both.’” Ibid. (quoting State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974)).

A court must perform a fact-sensitive analysis that includes:

“[t]he degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect is armed or dangerous; and the strength or weakness of the underlying probable cause determination.”

[Cassidy, supra, 179 N.J. at 160-61].

If the police had sufficient time to obtain a warrant, and the alleged exigent circumstances were “police created,” the evidence obtained as a result of a warrantless entry must be suppressed. See State v. Hutchins, 116 N.J. 457, 468-77 (1989). “Police created exigent circumstances which arise from unreasonable investigative conduct cannot justify warrantless home entries.” State v. De La Paz, 337 N.J. Super. 181, 196 (App. Div.) certif. denied, 168 N.J. 295 (2001).

In determining whether a warrantless entry into a residence was justified or was the product of a police-created exigency, a court should “appraise the [officer’s] conduct during the entire period after they had a right to obtain a warrant and not merely from the moment when they knocked at the front door.” United States v. Patino, 830 F.2d 1413, 1416 (7th Cir. 1987). A court’s “first concern in analyzing a claim of manufactured exigency is whether [the officers] could have obtained a search warrant prior to the development of the exigent circumstances upon which they relied.” Hutchins, supra, 116 N.J. at 470.

“Plain view” is sometimes used to describe situations in which items are exposed to public view in a public place or in an otherwise constitutionally unprotected location; their observation and seizure are authorized without a warrant. See, e.g., State v. McKnight, 52 N.J. 35 (1968).

When objects come into “plain view” only after and as a result of an unlawful intrusion into a constitutionally protected zone, evidence of such observation and any warrantless seizure resulting must be suppressed. State v. O’Herron, 153 N.J. Super. 570, 574-575 (App. Div. 1977); see also See State v. Rice, 115 N.J. Super. 128 (App. Div. 1971); State v. Baker, 112 N.J. Super. 351 (App. Div. 1970).






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