Constitutionality of a Warrantless Search and a Protective Sweep of a Residence

State v. Terres:

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Police were seeking to arrest a man named Fuller on a warrant and received information he was staying at a trailer park, possibly with defendant. State police informed officers defendant had been arrested and told officers that defendant said Fuller was at the trailer park. Officers went to the trailer park to execute their arrest warrant and heard Fuller was in a trailer believed to belong to defendant. The officers subsequently went to the trailer and saw Fuller inside. Fuller ran when police called to him and he was apprehended on the trailer’s front porch. An officer saw a hole in the floor with rifle barrels sticking out when he did a protective sweep of the trailer and obtained a search warrant.

The trial court found a lawful protective sweep and a valid warrant. Following the denial of his motion to suppress physical evidence, defendant pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree receiving stolen property, N.J.S.A. 2C:20-7(a), which had been amended from a third-degree charge. Defendant appealed his conviction.

On appeal, defendant contended that the trial court erred in denying his motion to suppress evidence and that his three-year sentence on the fourth-degree conviction was illegal. He argued the search warrant was the fruit of an illegal warrantless search and that the protective sweep the police performed was unlawful as well. According to the Fruit of the Poisonous Tree Doctrine, if evidence is obtained either by an unlawful search or seizure, the evidence, and any evidence derived from the unlawfully obtained evidence is not admissible during the guilt phase of the defendant’s trial (other than to impeach the defendant).

A “‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” State v. Davila, 203 N.J. 97, 113 (2010) (quoting Buie, 494 U.S. at 327). “The rationale for the protective sweep is officer safety. It is recognized that police officers who make an arrest in a home face a great risk of danger because they are at the disadvantage of being on [their] adversary’s turf.” Cope, 224 N.J. at 546-47.

The appellate court held that the trial court properly denied defendant’s motion to suppress and affirmed defendant’s conviction on the charge of second-degree unlawful possession of a weapon. The appellate court agreed that the sentence on the conviction for fourth-degree receiving stolen property was incorrect and therefore vacated that sentence and remanded the case for resentencing. The appellate court agreed that the officer’s protective sweep was lawful as well. They noted that the officer reasonably believed, based on information he had been given, that there might be another person in the trailer and Fuller was arrested a few feet from the door of the trailer. However, defendant correctly argued his sentence for fourth-degree receiving stolen property was illegal and the State conceded the point.

At Hark & Hark, we represent clients for appeals in Superior Court for issues like the present case pertaining to the constitutionality of a warrantless search and a protective sweep of a residence by law enforcement. We work hard to ensure that our clients receive exceptional representation so that they receive the most favorable outcome as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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