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Can Police Search Your Home Without a Warrant?

April 1, 2020

Former Prosecutor on Your Side.

NJ Police can search your home without a warrant under very limited circumstances. As a defense attorney in New Jersey I have defended clients against warrantless police searches of their homes. In some cases police entered these client’s homes without consent or a warrant. It is often assumed that such a action is simply illegal. The result should be that all evidence obtained after that search should be thrown out. The answer to this question is not so simple. 

     The law on this issue is somewhat complicated. However, there is general presumption against such action. Many of these cases are successfully defended because of that. An experienced attorney may successfully obtain the suppression of evidence in your case under certain circumstances. 

Why Do Police Enter and Search Homes Without a Warrant.

     Why would an officer enter a person’s home without a warrant? This occurs for a variety of reasons. Police officers in New Jersey are sometimes but in very difficult decisions. Should an officer chase a fleeing murder suspect into a house without a warrant? If the officer does so, there is a chance any evidence seized after the arrest may be thrown out. 

     This could potentially result in the entire case being dismissed. Or should the officer play it safe, sit back and apply for a warrant? If the officer does not have enough backup to surround the home, the suspect could go free. This could endanger the public. 

     Conundrums such as this are why the law on this subject is not so straightforward. Typical charges that result from such cases commonly include gun and drug possession. If you were charged with any crime in NJ after police entered your home, call my office for help. 

Exigent Circumstances 

     As a starting principle, the police should have a warrant before they conduct any search. The State bears the burden of proof when a search is conducted without a warrant. The can only meet that burden by showing that warrantless arrest or search falls within an exception to the warrant requirement.     

     On such exception is what is called exigent circumstances. This basically means that in some emergency type cases, police do not have to obtain a warrant before conducting a search. This is a requirement in a warrantless entry and search of a home. This applies in both federal and state court. 

A wide variety of circumstances may give rise to such exigency. A court should look to the totality of the circumstances when determining whether such a search should be upheld. 

Federal Case Example

     In Johnson v. United States, an informant told police someone was smoking opium in a hotel room.Police responded and investigated. Upon arrival, they smelled “a strong odor of burning opium” coming from the room. They knocked and announced themselves as police.  They then heard some “shuffling or noise.” The defendant opened the door. The police entered without a warrant and arrested the defendant. They searched the room and found suspected heroin. They also found drug paraphernalia. 

The Supreme Court declared the police entry and search violated the Fourth Amendment. Id. at 13-15. The Court noted that “[n]o suspect was fleeing or likely to take flight The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time would disappear.” Id. at 15.

NJ State Law Example

     In State v. Holland, the Court stated that the smell of burning marijuana establishes probable cause. However, the court also stated that that smell did not establish exigent circumstances. Therefore it was improper for police to make a warrantless entry and. In that case, the established nothing more than probable cause that a disorderly persons offense is being committed. The warrantless home searches by police in this case resulted in the suppression of all evidence found.

Burden is on the Prosecution

     A warrantless entry or search of a residence is presumptively unreasonable. They are therefore constitutionally prohibited. This is unless the police can show “exigent circumstances in conjunction with probable cause.” They must also establish the reasonableness of the police conduct. The warrantless search of a person’s homemust be subjected to particularly careful scrutiny. This applies under both NJ and federal constitutional standards. The reason for this is because physical entry of a home has long been considered the most serious of intrusions. 

     Warrantless searches or arrests in the home must be subjected to particularly careful scrutiny. Only in extraordinary circumstances may a warrantless home arrest or search be justified.  State v. Bolte, 115 N.J. 579 (N.J. 1989). The state bears the burden of proof in such a search. All your attorney has to do is properly file a motion to suppress evidence in order to trigger that burden. 

Hot Pursuit

     One such form of exigency relates to “hot pursuit.” This is commonly misunderstood area of law. There is a misconception that such a search is always valid. This is inaccurate. Police in hot pursuit regarding a minor offense may not barge into a home if there is only probable cause. 

However, that can change if the threat to public safety is substantial. The “hot pursuit” of a defendant who poses a threat to public safety may establish exigency. 

     A limitation to this exception applies when police have an arrest warrant. When a suspect flees from an arrest warrant, police may pursue them in most cases. 

The Community Caretaking Exception to the Warrant Requirement.    

There is also an “exception to the exception” of exigency. Police officers have a community-caretaking function. This is in addition to their law enforcement roles. Police can enter a home without a warrant under the emergency-aid exception.  Under the emergency-aid doctrine, The officer must have ‘an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or to prevent serious injury.’ There must also be a “‘reasonable nexus between the emergency and the area or places to be searched.'”  


     As can be seen, this is a complex area of law. I have experience successfully fighting warrantless home searches by police. If the police searched your home without a warrant, call my office to speak with an experienced New Jersey criminal defense attorney

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