For A Protective Sweep, Officers Need A Reasonable and Articulable Suspicion of a Crime Being Committed or That There May Be Danger in The Area
Decided August 29, 2019
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
In a published decision, the Appellate Division of New Jersey reviewed whether a warrantless search resulting in the seizure of cocaine was valid after police were given permission to enter the home and they conducted a protective search, followed by a thorough search with consent of defendant.
In State v. Williams, police responded to a custody dispute in which the child’s mother was requesting police assistance with getting her child out of an apartment that contained her individuals wanted for questioning in a murder. Police called for backup and went up to the door armed and knocked at the door. After they heard movement, eventually the door was answered and police were given consent to come inside. Based on the information related to the individuals wanted for the questioning of a murder, the police performed a protective sweep and found the individuals hiding.
After the search was over, the prosecutor’s office indicated that they wanted police to perform a more thorough search for evidence related to the murder. Police requested defendant’s consent to which it was given. Police then found a significant amount of cocaine and defendant was charged.
Defendant filed a motion to suppress, arguing the officer’s search was unlawful from beginning to end. The trial court denied defendant’s motion, finding the officers lawfully entered the residence, performed an appropriate protective sweep under the circumstances, and obtained defendant’s consent for the follow up search. Defendant entered a plea deal as a result.
Defendant appealed. The Appellate Division found that the officers were not required to provide defendant with the right to refuse consent to enter in the home, and that it only applied to a search of the home. Because they were lawfully present at the time, they could lawfully gain consent to enter the residence. Police also had a reasonable and articulable suspicion that the individuals wanted for questioning were in the home based on the caller’s information, and that the information was clearly accurate as it resulted in the individuals being found. Defendant claimed that because the officers entered unlawfully, defendant’s consent to continue to search the home was fruit from the poisonous tree. However, although not the case here, even if officers did enter unlawfully, the fact that the search was over, then officers gained defendant’s additional consent to search the home separated that search from the first one and would have been untainted from any unlawful entry or search prior, making it a lawful independent search based on consent.
The importance in this case is understanding the different requirements officers need at various levels of searches. To enter a home, officers simply need to be lawfully present and gain consent of the home owner. They do not need to inform the homeowner of a right to refusal. To perform a protective sweep, officers need a reasonable and articulable suspicion of a crime being committed or that there may be danger in the area. To continue to do a more detailed search, such as drawers and cabinets, officers would need probable cause – much higher standard than reasonable and articulable suspicion. Of course, if officers obtain a warrant, they may do all of these things without these requirements.
At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case involving motions to suppress. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.
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