Justice Albin continued in relevant part: The Court set forth a two-tiered standard governing the scope of a protective search of a residence during an in-home arrest: (1) “Officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched”; and (2) officers could search beyond those adjoining areas based on “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”
The New Jersey Supreme Court has also placed strict limits on the scope of the protective-sweep doctrine when, in a non-arrest context, police officers are “lawfully” in a home “for a legitimate purpose,” such as by consent. In that scenario, “a protective sweep may only occur when the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger.” Even so, a “sweep will be upheld only if (1) it is conducted quickly; and (2) it is restricted to places or areas where the person posing a danger could hide.”
Although the United States and New Jersey Supreme Courts have not had occasion to determine whether and in what form the protective-sweep doctrine permits a warrantless entry into a home when an arrest occurs directly outside the home, many federal circuit courts of appeals and state courts have spoken to the issue and have determined that such sweeps must be evaluated under the second Buie prong.
A logical argument for the defendants is that if police safety is the concern, the safest thing for the officers to do is not enter the home in the first place. Instead, once an arrest is made outside of the home, they should remove themselves and the arrestee away from the home and areas where someone could be hiding.