A protective sweep conducted on private property is
not per se invalid merely because it does not occur
incident to an arrest. Law enforcement officers may
conduct a protective sweep only when (1) the officers
are lawfully within private premises for a legitimate
purpose, which may include consent to enter; and (2)
the officers on the scene have a reasonable
articulable suspicion that the area to be swept
harbors an individual posing a danger. The sweep will
be upheld only if it is (1) conducted quickly, and (2)
restricted to areas where the person posing a danger
could hide. When an arrest is not the basis for entry,
the police must be able to point to dangerous
circumstances that developed once the officers were at the scene.
Decided July 14, 2010
LaVECCHIA, J., writing for a unanimous Court.
In Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court authorized a "protective sweep" exception to the Fourth Amendment's warrant requirement, recognizing that law enforcement officers must be able to conduct, when necessary for safety, a "quick and limited search" of a home incident to an arrest. In this appeal, the Court considers Buie in the non-arrest setting, where police had consent to enter, but lacked probable cause to arrest or to search the premises.
On November 13, 2003, defendant Johnnie Davila and three acquaintances embarked on a crime spree involving a car theft and two homicides. Police found the stolen vehicle in Newark. A cell phone that was missing from the vehicle, presumably taken by a perpetrator, was used after the homicides. Seven calls were made to an apartment in Newark, with the last call at 1:01 a.m. on November 15. Eleven hours after that call, a joint police team, including six plain-clothed officers, headed to the apartment. The officers, admittedly aware that they lacked probable cause, did not attempt to get a search warrant. According to the testifying officer, they knocked on the door; an overnight guest, Jayaad Brown, answered; the officers identified themselves and asked if they could come inside; and Brown let them in. Brown testified that he did not invite them inside, and when he opened the door, they pointed guns at him and restrained him. The testifying officer conceded Brown's behavior was not threatening and the officers did not perceive anything suspicious occurring in the apartment. Once inside, the officers immediately dispersed throughout the apartment to "secure any other individuals" that may have been inside because of suspicion that the occupants might be "connected to the homicides." Cocaine was found on a dresser in the rear bedroom. As a result of that discovery, everyone in the apartment, including Davila, was arrested. While making the arrests, the officers found the stolen cell phone in the middle bedroom where Davila had been found.
Davila gave a full statement implicating the three other individuals. All four confessed to participating in the homicides. Davila and his co-conspirators were charged with murder, robbery, weapons offenses, and theft. Davila moved to suppress the evidence seized from the apartment as the product of an illegal search and seizure. The court did not credit Brown's testimony and relied on the officer's testimony, finding that the officers were lawfully in the apartment based on consent. The court also held that the search was a valid protective sweep because police were investigating a double murder in Newark that had occurred within the past 48 hours, and a cell phone tied to the murders was used to call the apartment. The court held that the evidence seized was admissible under the plain-view exception to the warrant requirement.
Davila pleaded guilty to two counts of felony murder and conspiracy to commit robbery. He was sentenced to two concurrent thirty-year terms, with a thirty-year period of parole ineligibility. Davila appealed, arguing that the trial court improperly denied the motion to suppress because the police search was unlawful. The Appellate Division rejected that argument and affirmed. The Court granted certification to review whether the search of the apartment constituted a valid protective sweep, exempt from the Fourth Amendment's warrant requirement. 200 N.J. 368(2009).
HELD: A protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest. Law enforcement officers may conduct a protective sweep only when (1) the officers are lawfully within private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. The sweep will be upheld only if it is (1) conducted quickly, and (2) restricted to areas where the person posing a danger could hide. When an arrest is not the basis for entry, the police must be able to point to dangerous circumstances that developed once the officers were at the scene.
1. The first issue is whether police were lawfully in the apartment. The court's conclusion that Brown consented to police entry rested on credibility findings, for which the record contains adequate, substantial and credible support. (pp. 14-16)
2. The Fourth Amendment protects the people's right to be secure in their persons and houses against unreasonable searches and seizures. A warrantless search in a home is presumptively unreasonable. The State bears the burden of demonstrating that a warrantless search is reasonable because it fits within a recognized exception to the warrant requirement. Here, the search depends on the protective sweep exception. The issue is one of first impression in New Jersey. (pp. 16-19)
3. In Maryland v. Buie, the United States Supreme Court defined a "protective sweep" as a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." For guidance, Buie turned to the reasonableness and balancing principles applied in Terry v. Ohio and Michigan v. Long, and directed a three-part test for courts reviewing the validity of a protective sweep. First, a protective sweep is valid if, incident to an arrest, police restrict the search to the immediate vicinity of the arrest from which an attack might be launched. Police seeking to expand the search area may do so only if there are specific facts that would cause a reasonable officer to believe that an individual is on the premises and poses a danger to those present. Second, the search must be "quick," lasting no longer than necessary to dispel the reasonable suspicion of danger. Third, the officers may only engage in a limited protective search, which must be narrowly confined to a cursory visual inspection of those places in which a person might be hiding. (pp. 19-23)
4. New Jersey has long shared the concerns for individual rights and officer safety that underpin Terry and Long. The sweep authorized in Buie is aligned with an evolution of familiar principles adhered to in this State, which provide officers with critical safety tools. Buie established a valuable, workable standard for evaluating protective sweeps incident to an arrest. The issue now is whether the protective sweep exception should be more broadly available to officers who are lawfully present in private premises for some purpose other than to make an arrest, and, if so, under what circumstances. (pp. 23-24)
5. The result in Buie did not hinge on the fact that an arrest took place. Rather, the probable cause to arrest Buie provided justification for the police presence in the home. The Court expressed serious concern for officer safety when certain circumstances are present. In both Terry and Long, the limited intrusion resulting from the search was justified by the ability of the officer to point to "specific and articulable facts, which taken together with rationale inferences from those facts," indicated that the safety of the officer or the public was in danger. Buie applied the same logic to extend the standard for a protective search into a home. There is no basis from Buie to justify restricting protective sweeps to the arrest context. That conclusion is bolstered by the undeniable national trend toward greater availability of protective searches, which is marked by the same officer-safety concerns that animated Buie's balancing test, and which demonstrates a general agreement that those concerns are not exclusive to the in-home arrest context. This Court agrees and holds that a protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest. (pp. 24-31).
6. At the same time, a protective sweep is not automatically valid every time officers are lawfully within a home. Courts have taken particular care in considering protective sweeps in the non-arrest context. The Fifth Circuit expressed concern about protective sweeps used where police presence was based on consent to enter. It reformulated the Buie test into an inquiry examining whether police were lawfully on the premises; the officers had a reasonable articulable suspicion that the area to be swept harbored an individual posing a danger; the sweep was limited to the places in which a person could hide; and the sweep took place within narrow time constraints. The Second Circuit also voiced concern, commenting that when police gain access to a home by consent, generously construing Buie would enable officers to obtain consent as a pretext for a warrantless search. Also, the purpose of a protective sweep is to discover individuals, not contraband. (pp. 31-37)
7. A protective sweep of a home may only occur when (1) officers are lawfully within the premises for a legitimate purpose, which may include consent to enter; and (2) the officers have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. Where those substantive conditions are met, as a matter of procedure, the sweep will be upheld only if (1) it is cursory, and (2) it is limited in scope to locations in which an individual could be concealed. In a non-arrest setting, the legitimacy of the police presence must be probed. There must be a careful examination of the basis for the asserted reasonable, articulable suspicion of dangerous persons on the premises. The court should examine whether the request for entry was legitimate and whether the officers can identify articulable reasons for suspecting potential harm from a dangerous person that arose once the officers arrived at the scene. The record in this case suggests that the officers, who admittedly lacked probable cause and cited to no new development, arrived with the intent to perform a protective sweep. If that turns out to be accurate, then the search was unconstitutional and its fruits must be suppressed. (pp. 37-40)
8. In summary, in the warrantless search context, the State bears the burden of proving the reasonableness of a protective sweep. The State must prove that the police presence occurred pursuant to a recognized exception to the warrant requirement. The court must consider the validity of the basis asserted to justify the police presence, and whether there was an articulable need to perform a sweep due to a perception of danger truly unforeseen and spontaneous. On remand, the court will need to make a specific finding that the police went to the apartment for a legitimate purpose, not with the intent to obtain consent as a pretext for conducting a warrantless search. The police must be able to articulate specific facts demonstrating a reasonable suspicion, developed after they arrived, that another person is present, as well as a reasonable basis for believing that the person present is a danger to those at the scene. The search must be confined to a cursory visual inspection of places where a person might hide, and it must last no longer than needed to dispel the reasonable suspicion of danger. (pp. 40-44)
9. In this case, there was sufficient evidence for the trial court to find that the officers entered the apartment with consent. Questions remain about the legitimacy of the investigative technique used. The trial court is directed to consider specifically whether the knock-and-talk technique used by the officers was a pretext to gain access to conduct an unconstitutional search. The factors established by the trial court as providing articulable suspicion, though relevant, are insufficient to justify the invasion that occurred in this case. The Court reverses and remands for supplemental proceedings to determine whether the police entry can be shown to meet the directives contained in the Court's opinion. (pp. 44-46)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for supplemental proceedings to determine whether the police entry meets the directives contained in the Court's opinion.
CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LaVECCHIA's opinion.
