Police Plain View Doctrine in Your Home

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

If the police are lawfully called to your home for a domestic violence investigation are they allowed to walk around and perform a “safety sweep” in order to secure their safety while conducting a domestic violence investigation/call?

The resounding answer is no!

In this case the appellate court ruled the police are not allowed to perform a “protective sweep”  or “safety sweep” of your home unless they have objective observations which would give them a heightened level concern for their own safety.

The court defined objective criteria/observation as being things such as, the initial call reflecting more than one person in the home who committed an offense, sounds emanating from the rest of the house, observation of the people in the Home who the police  encounter when they arrive, statement from the 911 call, the breathing and appearance of the argument of the home the police encounter.

In this case the police receive a phone call from a female indicating her boyfriend beat her up. She communicated to them she was in her car outside the home. When the police arrived they walked into the front door and observe a “man sitting on a sofa.”  They police subsequently  learned this was the boyfriend identified by the girl in the car. A second officer walked in the front door and proceeded to perform what he called was a “perfunctory” security sweep of the home to secure their own safety.

Although the appellate court “recognized the substantial increase in injuries and harm suffer to police on domestic violence calls nationwide”

they admonished the law enforcement  community not to just perform the “safety sweep” of the home without additional objective criteria which would provide them a heighted concern for their safety.

As a result of the officer’s illegal protective sweep of the rooms upstairs, he observed in plain view a substantial amount of drug and an illegal weapon IN A CLOSET. The court concluded that the officer was not lawfully in a position to make the plain view observation of the illegal drugs and weapon, and as a result the illegally observed  contraband had to be suppressed. The officers observations did not fit into the plainview exception to New Jersey’s long-standing warrant requirement for home searches.

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office

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