Protective search on house not permitted
where no evidence another person present. State v. Bryant State v. Charles Bryant, Jr. (A-2-15) (075958)
Argued September 12, 2016 -- Decided November 10, 2016
Timpone, J., writing for a unanimous Court.
In this appeal, the Court determines whether the
factual circumstances presented in this case supported a police officer’s
determination to conduct a warrantless protective sweep in the home of
defendant Charles Bryant, Jr.
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.
Bryant appealed from the denial of the motion to suppress, arguing that the
search was illegal. The Appellate Division affirmed on substantially the
grounds stated by the trial court.
This Court granted Bryant’s petition for certification, limited to the
issue of whether the protective sweep of defendant’s residence was lawful. 223 N.J.
162 (2015).
HELD: The officers here
lacked 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.
1. 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.” State v. Edmonds, 211 N.J. 117, 129
(2012). Thus, it is the State’s burden to show that any warrantless search
falls within an established exception to the warrant requirement.
2. 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.” State v. Davila, 203 N.J. 95, 125 (2007). A
reasonable and articulable suspicion must be “individualized, rather than
generalized,” and must be evaluated within the totality of the circumstances. Id.
at 129. An officer’s “subjective hunch” will not satisfy this prong. Id.
at 128.
3. 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. (pp 11-12)
4. 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.
5. 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.
6. 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.
The judgment of the Appellate Division is REVERSED. The matter is REMANDED
to the trial court for further proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.
