Justice Albin continued in relevant part: The Court finds that, in balancing the fundamental privacy rights afforded to the home under the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution and the unquestionable need to ensure officer safety when an arrest is made in the area immediately outside a home, the justification for entry into the home to conduct a protective sweep must be based on the second prong in Buie — whether the officers have a reasonable and articulable suspicion “that the area to be swept harbors an individual posing a danger to those on the arrest scene,” 494 U.S. at 334. Whether police officers making an arrest just outside a home have a reasonable and articulable suspicion of a safety threat necessitating a protective sweep of parts or all of the residence will depend on the facts known to the officers at the time. Courts must look at the totality of the circumstances to determine if there is an individualized, rather than generalized suspicion, understanding that there is no mathematical formula to determine what amount of suspicion is reasonable. The Court reviews in detail decisions from other jurisdictions and notes that courts have focused on the quantity and quality of the articulable facts that prompted the sweep.
Whether a “reasonably prudent officer,” who has arrested a suspect outside a home, has sufficient “articulable facts” to form an objectively reasonable belief “that the area to be swept harbors an individual posing a danger to those on the arrest scene” will depend on the totality of the evidence. Entry into a home without a warrant is presumptively unreasonable and therefore not the norm. A protective sweep is an exception to the warrant requirement and a species of exigent circumstances. The State bears the burden of proving the necessity of entering the home to conduct a protective sweep. Some factors that may be considered in determining whether a protective sweep is justified when an arrest is made outside the home are (1) whether the police have information that others are in the home with access to weapons and a potential reason to use them or otherwise pose a dangerous threat; (2) the imminence of any potential threat; (3) the proximity of the arrest to the home; (4) whether the suspect was secured or resisted arrest and prolonged the police presence at the scene; and (5) any other relevant circumstances. Entry into the home and a protective sweep cannot be based on a self-created exigency by the police.
These five factors provide the prosecution with a roadmap for what they need to justify a warrantless entry and protective sweep of a home. It will be interesting to see what caselaw develops regarding the catch-all fifth factor.
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