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NJ Court Sets Standard for “Protective Sweeps”


by in Criminal Appeals

In this recent criminal appeal, the NJ Supreme Court set a bright-line rule on when so-called “protective sweeps” are justified.

State v. Johnnie Davila, ? N.J. ?, 2010 N.J. LEXIS 590 (July 14, 2010) – Denial of suppression reversed, case remanded for further proceedings on propriety of protective sweep. “[A]lthough we hold that the absence of probable cause to arrest does not render a protective sweep per se illegal, we acknowledge that it would be too facile to permit a protective sweep whenever officers are lawfully within a premises. There is simply too great a potential for the pretextual use of otherwise lawful police presence as an opportunity to conduct a warrantless raid of a home cloaked as a protective sweep; so broad an exception would swallow whole the protections of the warrant requirement. Those concerns are particularly relevant where, as in this case, the lawfulness of the police entry is based on the consent of an occupant…. We hold that a protective sweep of a home may only occur when (1) law enforcement officers are lawfully within the private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. Where those substantive conditions are met, as a matter of procedure, the sweep will be upheld only if (1) it is cursory, and (2) it is limited in scope to locations in which an individual could be concealed…. The search should be strictly limited in duration to the time frame during which police are lawfully within the premises…. The law enforcement officers cannot have created the danger to which they became exposed by entering the premises, and thereby bootstrap into an entitlement to perform a protective sweep…. In the present matter, …, we are satisfied that there was sufficient evidence for the trial court to find that the officers entered the apartment due to the consent of Jayaad Brown. However, questions remain concerning the legitimacy of the investigative technique employed. On remand we direct the trial court to consider specifically whether the knock-and-talk technique employed by the officers was a pretext to gain access to the apartment to conduct an unconstitutional search, and not to speak to the occupants. We have serious reservations arising from our disagreement with the court’s observation that the officers possessed articulable suspicion to justify the search of the apartment….”






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