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New Jersey Supreme Court Addresses Warrantless Searches and Seizures of Evidence in Domestic Violence Cases

It is well cited the significant extent that domestic violence is in this State and in this country.  It has alsoOfficer Holding Cell Phone been in the news over the course of the last year or more the danger that police officers and the need for them to protect themselves on the job.  How do we balance the need for officer protection, and the public interest in domestic violence victims, with citizens’ Constitutional rights?

On November 10, 2016 the Supreme Court of New Jersey a decision in the matter of State-v-Bryant, the Court addressed the balance of protecting victims of domestic violence and individual privacy rights.

In this case, police received a 911 call from a woman claiming that she had been assaulted by her boyfriend.  She did not identify herself or her boyfriend, but gave an address and indicated she was outside in her car.  When the police arrived, two officers stayed with the woman, who was inebriated and had difficulty giving information to the police.  Two officers went inside the apartment where one conducted a “protective sweep” by looking in the other rooms and closets, and another officer questioned the defendant.  Initially, this was done without the victim having identified her attacker and without an indication that there were any other people or weapons on the apartment, though the victim ultimately did identify the defendant as her boyfriend.

The officer who conducted the protective sweep stated that it was part of his experience to conduct such sweeps for officer safety because it is not known if there are other people or weapons in the residence, and that since domestic disturbance calls are so emotional,  he needs to make certain that no one is hiding.   During this protective sweep, the officer smelled marijuana coming from a closet; the police officers seized the drugs and arrested the defendant.   The officers then waited for a warrant to search the rest of the apartment, where they found more marijuana, marijuana packing materials and an assault weapon.  The defendant was indicted and charged with fourth degree possession of a controlled dangerous substance, second degree possession of an unlawful assault firearm and second degree possession of a firearm.

At his criminal trial, defendant sought to suppress this evidence, arguing that it was “fruit of the poisonous tree” because his apartment was searched by the police without a warrant.  The trial judge refused to suppress the evidence.   The judge found that the police officers were lawfully in the defendant’s apartment as they were looking for a suspect in a domestic violence case where the victim showed signs of physical injury.  The officer had a reasonable suspicion that a protective sweep was needed as there could be another hidden person posing a danger to police and, therefore, a warrant was not needed.  The judge also found that the marijuana was properly seized because it was in plain view.

In an unpublished opinion, the trial court’s decision was affirmed.

The Supreme Court of New Jersey addressed whether the search and seizure was lawful, and held that it was not.  The Supreme Court pointed out that the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee that people are to be secure in their persons, homes, papers and effects against unreasonable searches and seizures.  The New Jersey Constitution has been construed to provide people even greater protection than the U.S. Constitution against unreasonable searches.

Because of these Constitutional protections, police are supposed to get warrants from neutral judges before conducting searches.  When the police conduct a search without a warrant, the State bears the burden of proving that the search or seizure was based on probable cause and that the search and seizure fell within one of the exceptions to the warrant requirement.  One such exemption is the “protective sweep doctrine”, wherein protective sweeps are permitted when needed for officer safety reasons as long as the sweep is “narrowly confined to a cursory visual inspection of those places in which a person might be hiding.”  Maryland v. Buie, 494 U.S. 325, 327 (1990).   The State has the burden of proving (1) that police officers are lawfully within the private premises for a legitimate purpose, which may include consent to enter; and (2) the police have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger.  State v. Davila, 203 N.J. 97, 125 (2010).  It is not enough for the police to have a suspicion or a hunch.

In this case the Court noted that the officer did not see or hear anything that made him think that someone else was in the apartment, nor was there evidence that the officers were surprised by anything in the apartment, or that the defendant’s behavior was nervous or suggested in some way that someone else was in the apartment.  The search of the apartment began before the defendant had begun to answer any questions.   Instead, the officer testified that it was “generally [his] experience” to conduct a protective sweep in domestic violence cases, because it is “possible” that more than two people were involved in such cases.  The Court thus concluded that the State had not meat its burden under Maryland v. Buie or State v. Davila, and that the evidence obtained in the search had to be suppressed as the search was conducted without a warrant.

In reaching this decision, the Supreme Court stated that it was mindful of the dangers faced in domestic violence incidents, including dangers to police officers who are called to the scene.  The Court wrote: “In reaching this conclusion, we are mindful that the privacy interests discussed must be viewed in light of the daily difficulties facing law enforcement officers. We recognize that officers are faced with the difficult task of running toward danger, often with little to no information about the danger they face. This is especially true in the context of domestic violence calls—some of the most dangerous calls officers will face. Family violence researchers report that ‘more police officers die answering family disturbance calls … than die answering any other single type of call.’”   The domestic violence statute also has a mandatory arrest provision. N.J.S.A. 2C: 25-21(a).

The Court also noted that the Legislature in the Prevention of Domestic Violence Act requires police to get training on how to handle and investigate reports of domestic violence. N.J.S.A.  2C:25-20(a).   The protection for victims and police officers, however,  have to be “read and construed with deep respect for, and adherence to, the constitutional underpinnings of our search and seizure protections.”   The police could have asked the defendant preliminary questions as to whether he had been in an argument with his girlfriend and if there was anyone else in the apartment rather than acting on a hunch and searched the premises without a warrant.