The Legette Court continued:
Both the Federal and New Jersey State Constitutions guarantee the right to be free from unreasonable searches and seizures. Accordingly, a lawful search must be prefaced by a warrant obtained upon probable cause unless the search falls within one of the few well-delineated exceptions to the warrant requirement. If no warrant was sought, the State bears the burden of demonstrating the validity of the search. The State’s burden is particularly heavy when the search is conducted after warrantless entry into a home, because the home bears a special status. This case requires the Court to determine whether the public safety concerns underpinning investigatory stops can overcome the special status accorded to the home.
Because the reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest, there are certain limitations on the scope of such stops. The Court has held that the investigative methods employed in a Terry stop should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. Because officers are limited to taking self-protective measures during investigatory stops, the Court finds that Chrisman and Bruzzese do not support warrantless entries into detainees’ homes and declines to expand the scope of investigatory stops to encompass police entry into the home.
Here, the officer failed to conduct a routine investigatory pat-down before entering the apartment, which belied the concern for safety. The Court notes that it is irrelevant whether the officer had probable cause to effectuate an arrest based on the smell of marijuana; the inquiry under Chrisman and Bruzzese is whether Legette had been arrested when the officer followed him into the apartment. Finally, the State did not show that Legette thought he could refuse entry into his apartment, so the Court does not find that the search was consensual. Because the State failed to meet its burden of demonstrating that the search in this case fell within a recognized exception to the warrant requirement, the entry was illegal and the evidence obtained as a result of that entry should have been suppressed.
In dissenting, Justice Solomon, a former Camden County Prosecutor, expressed the view that the officer had probable cause to arrest Legette because he smelled burned marijuana, that his decision to accompany Legette rather than immediately arrest him was reasonable, that this accompaniment did not vitiate the probable cause, and that the same policy concerns for officer safety that apply to arrestees also apply to detainees. In Justice Solomon’s view, the officer’s decision to allow Legette to retrieve identification rather than immediately place him under arrest mirrors the facts of Chrisman, and Chrisman is equally applicable to pre-arrest situations as to post-arrest situations.
Note that Justice Solomon described what was likely an order for the defendant to get his id as a “decision to allow Legette to retrieve identification.” In so doing, Justice Solomon ignores the logic that an individual with contraband hidden on his person would be looking to avoid the police, as opposed to encouraging additional interaction by retrieving and turning over his identification under circumstances in which he was not required to provide an i.d.