On November 10, 2016, in State v. Charles, Bryant, Jr., a unanimous New Jersey Supreme Court was called upon to determine whether the circumstances supported a police officer’s determination to conduct a warrantless protective sweep in the defendant’s home.
Officers were dispatched to a report of domestic violence when a woman called 911 to report that she had been assaulted and that she was outside in her vehicle. The woman did not give her name or that of the attacker, but did supply an address.
Possessed with only this information, the first two officers on the scene proceeded directly to the indicated address. They knocked on the door. When Bryant answered, the officers told him to take a seat on the couch. Bryant complied, and the two officers entered his home. While one officer questioned Bryant, the other conducted a protective sweep of the apartment, searching any place that potentially could harbor a person.
During the course of the protective sweep, the officer spotted what he believed to be marijuana sticking out of a box on a closet shelf. The item was seized, Bryant was arrested and removed from his apartment, and a search warrant was obtained. Officers searching pursuant to the warrant found an assault weapon, approximately fifty-five grams of marijuana, and marijuana packaging materials.
Bryant was charged with fourth-degree possession of a controlled dangerous substance, third-degree possession with intent to distribute, second-degree unlawful possession of an assault firearm, and second-degree possession of a firearm. Bryant was separately charged with second-degree persons not to possess a firearm.
Bryant moved to suppress all of the evidence seized from the apartment as fruit of an illegal search. The trial court denied this motion, finding that the officers were lawfully present in the apartment and that, because they did not know whether the man who answered the door was the suspect, or whether the suspect was elsewhere in the apartment, the officers had a reasonable and articulable suspicion that the area could be harboring an individual posing danger. After determining that the protective sweep doctrine obviated the need for a warrant, the trial could found that the marijuana located during the sweep was in plain view.
The Supreme Court held that the officers lacked a reasonable and articulable suspicion that another party was present, much less that another party posed a danger to officer safety. The protective sweep was thus insufficient to establish an exception to the warrant requirement, and any evidence found as a result of that sweep—even if it was found in plain view—must be excluded and suppressed as fruit of the poisonous tree.
The phrase “even if it was in plain view” is unnecessary and confusing. Being at a lawful vantage point is a plain view requirement. Since the Court essentially held that the officers were not at a lawful vantage point at the time that the marijuana was observed, the phrase “even if it was in plain view” is illogical.
In light of the State Constitution’s protection of the sanctity of the home, New Jersey jurisprudence reflects an unmistakable preference that officers “obtain a warrant issued by a neutral and detached judicial officer before executing a search.”. Thus, it is the State’s burden to show that any warrantless search falls within an established exception to the warrant requirement. The protective sweep doctrine is a recognized exception to the warrant requirement that may be invoked only when “(1) law enforcement officers are lawfully within the private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable and articulable suspicion that the area to be swept harbors an individual posing a danger.” A reasonable and articulable suspicion must be “individualized, rather than generalized,” and must be evaluated within the totality of the circumstances. An officer’s “subjective hunch” will not satisfy this prong.
When the seizure of evidence results from an unconstitutional action, that evidence is excluded from consideration, as is any evidence seized in a search incident to the original unlawful search, under the fruit of the poisonous tree doctrine. Here, there is sufficient evidence in the record to support the trial court’s factual finding that the officers lacked information when approaching the apartment, including the name or description of the assailant, the number of parties present, or whether there were weapons involved. One officer conducted the sweep without any situation-specific information to justify it; rather, he relied on a subjective hunch that someone else might be present. There is no record of a reasonable suspicion in this case, without which the authority for the protective sweep dissolves. As such, the evidence seized as a result of the warrantless search should have been suppressed.
In reaching this conclusion, the Court is mindful of the dangers with which officers are faced and of the fact that domestic violence calls are statistically among the most dangerous. The Court notes, further, that the Prevention of Domestic Violence Act (“PDVA”), N.J.S.A. 2C:25-17 to -35, was passed in recognition of the serious problem posed by domestic violence in New Jersey. The Court stresses, however, that even the mandatory arrest provision of the PDVA must be read as subject to both the State and Federal Constitutions’ protections against unreasonable searches and seizures.
The Court notes that the officers could have asked Bryant questions to either determine that no one else was present or to form a reasonable and articulable suspicion that someone else was in the apartment. Because there was no record of reasonable suspicion, the State failed to meet its burden of presenting evidence sufficient to establish an exception to the warrant requirement.