Protective Sweep of Home when Defendant was Arrested Outside the Home May be Unlawful

State v. Radel

Appellate Docket No.: A-2503-18T3

Decided October 20, 2020

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In a published opinion, the Appellate Division of New Jersey reviewed a trial court’s denial of a motion to suppress a firearm found inside a defendant’s home as a result of a protective sweep after defendant was arrested outside of his home.

In State v. Radel, after a denial of defendant’s motion to suppress, defendant reached a plea agreement with the State and entered a conditional guilty plea to one count of second-degree being a certain person not permitted to possess weapons, N.J.S.A. 2C:39-7(b)(1), and one count of second degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1). As part of the plea agreement, the State dismissed the other eighty-six counts of the indictment. Defendant was later sentenced, within the plea agreement’s parameters, to a ten-year prison term, subject to a five-year period of parole ineligibility, on the certain-persons conviction and a fifteen-year prison term, subject to a seven-and-one-half-year period of parole ineligibility, on the unlawful-possession-of-a-weapon conviction; both terms were ordered to run consecutively.

Three police officers and defendant testified at the suppression hearing.  Police were provided an order from the prosecutor’s office for the limited purpose to retrieve a firearm from 103 Browertown Road.  Police later found that defendant lived at 81 Browertown, and not at his parent’s house at 103.  Police arranged to search defendant’s home for the gun, as well as arrest him on municipal court warrants.

Outside of 81 Browertown, an officer noticed an individual in blue in the back of house, there was a loud bang, then a person in blue exited the front of the home. This was the defendant and he was arrested.  Officers then conducted a protective sweep of the home finding a handgun, ballistics vest and drug paraphernalia.

With this evidence, the trial court denied defendant’s motion to suppress on the basis of an unlawful sweep.  Defendant appealed. The Appellate Division found that the trial court’s conclusion was not supported by the substantial weight of the evidence.  The protective sweep can only extend to the immediate vicinity for the officer’s protection.  Because the defendant was arrested outside of the home, officers needed a separate reasonable and articulable suspicion that someone else was in the home or some other threat existed.  The Appellate Division found that the trial court’s reliance on two cars in the driveway, the loud bang that was not a gun shot, and police spotting someone wearing blue in the rear was not enough to present a separate reasonable and articulable suspicion that someone else or some danger existed in the home. Therefore, officers were not justified in conducting a protective sweep, especially since the original order to seize the gun was for 103 and not 81 Browertown – where they arrested defendant.

The importance in this case is understanding the different levels of information officers need when investigating to be able to properly make an arrest and charge someone with a crime.  In order to observe or ask questions without any information, officers are permitted to do this so long as it is clear that the person can leave at any time and decline to answer.  In order to physically stop someone and detain them, officers need a reasonable and articulable suspicion that the person is committing a crime.  Last, in order to arrest or for search and seizure, officers need probable cause through a warrant or circumstances that would ordinarily permit officers to get a warrant.

Knowing these levels of information is crucial.  As in this circumstance, officers can perform a protective sweep incident to an arrest. Often times this is searching a person or a vehicle for weapons or something that the defendant could easily reach during an arrest.  Going into defendant’s home after arresting him outside and not inside prevented officers from further searching defendant’s home to secure the evidence.

If you or someone you know was in a situation similar to this, contact Hark & Hark today.

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.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, 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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