Scope of Protective Sweeps (Part 1)

On January 20, 2022, the New Jersey Supreme Court decided the companion Union and Salem County cases of State v. Terres and State v. Radel. The principal issues were whether the police have a right to conduct a protective sweep of a home when an arrest is made outside the home and, if so, the requisite justification for a warrantless entry and sweep.

Justice Albin wrote for the unanimous Court in relevant part: The Court balances two important values: an individual’s fundamental privacy right in the home and the significant state interest in officer safety. Radel: In June 2011, defendant Christopher Radel pled guilty to a weapons offense. In March 2015, the trial court sentenced Radel to a probationary term with credit for two days served in custody. In October 2015, the court entered an order directing in part that “members of Little Falls Police Department respond to Radel’s home, located at 103 Browertown Road in the Township of Little Falls, immediately upon receipt of a copy of this Order, for the limited purpose of retrieving” any firearms, including a Beretta.

The Prosecutor’s Office faxed the order to Sergeant Robert Prall more than two months after entry of the order. Before carrying out the order twelve days later, Sergeant Prall learned that Radel resided at 81 Browertown Road; that Radel had two active municipal arrest warrants; and that — based on a firearms registry search — Radel possessed firearms other than the Beretta listed on the order. On January 19, 2016, Sergeant Prall set in motion a plan to enforce the order to retrieve weapons and arrest Radel on the outstanding warrants. At 10 a.m., seven Little Falls police officers positioned themselves to surveil both 103 and 81 Browertown Road, which were separated by only two other houses.

The recitation of facts is foreshadowing a decision in favor of the defense. There is a strong presumption in favor of obtaining search warrants when they police have sufficient time to do so. Here, there was sufficient time but no effort to obtain a search warrant.