Although the United States Constitution and the New Jersey Constitution reflect the importance of the fundamental right to privacy, there exists a few doctrines which allow for warrantless search of a home. One such exception to the warrant requirement is the protective sweep doctrine.
The United States Supreme Court determined in Maryland v. Buie that a protective sweep made during an in-home arrest is only justified when (1) officers can, as a precaution, search areas immediately adjoining the area of arrest if they are areas from which an attack can be immediately launched, and (2) officers can look beyond those adjoining spaces if that search is based on articulable facts that would make reasonably prudent officer believe there is a threat.
Although this is the standard for when arrests are made inside of a home, what happens when an arrest is made outside of the home? Recently, the Supreme Court of New Jersey answered this question in State v. Radel and State v. Terres.
In State v. Radel, law enforcement personnel were tasked with retrieving firearms from the home of Defendant and arresting him due to an outstanding warrant. Police conducted surveillance on the home and had watchful eyes on both the front and rear entrances of the home. The Defendant had exited the residence with some laundry and was arrested shortly thereafter and did not resist. Although there was no reasonable indication that there were any other people in the house, and no real imminent threat to officer safety, the police conducted a protective sweep and found multiple weapons, drugs and cash. The Defendant sought to suppress this evidence. On appeal an Appellate panel found that the officers did not have reasonable and articulable suspicion that there were others in the home or that they posed a risk to the officer’s safety.
In State v, Terres, however, the circumstances surrounding the arrest of the man associated with this Defendant were very different. The Defendant, already in custody, revealed the potential whereabouts of the man police were looking for by disclosing the fact that the man may be found at his residence at a nearby trailer park. Later, the arrest was made in that trailer park where officers had encountered multiple people with outstanding warrants and the trailers were littered with bullets and shell casings. Officers were told to “be careful” because the man they were looking for was seen earlier that day with another man. Upon finding the man with a woman in a trailer, the officers approached the trailer and shouted verbal commands. The man did not comply and resisted arrest by trying to escape but he was unsuccessful and officers arrested him. The other officers conducted a protective sweep of the trailer and found weapons inside. The Defendant sought to have this evidence suppressed but the Appellate Division affirmed the denial of his motion.
On January 20, 2022, the Supreme Court of New Jersey decided that the appropriate standard for the justification of these protective sweeps is that there must be reasonable and articulable suspicion that a person or persons are present inside the home and pose an imminent threat to the officers’ safety. The Court also noted that “reasonable and articulable suspicion of safety” depends on the facts known to the officers at that time. The Court emphasized that courts must look at the totality of the circumstances when determining if suspicion was reasonable. For example, courts may consider (1) whether police had information that others are in the home with access to weapons, (2) the imminence of any potential threat, (3) the proximity of the arrest to the home, (4) whether suspect resisted arrest and prolonged police presence at the scene, and (5) any other relevant information concerning potential threat to safety.
Although the Court used the same standard to evaluate the protective sweeps in both cases, the contrasting circumstances surrounding the arrests resulted in different outcomes.
For the arrest made in State v. Radel, the Court determined that the police had executed a controlled arrest and had no specific information that would justify a suspicion of threat or harm.
For the arrest made in State v. Terres, however, the Court determined that the unexpected circumstances, fast-evolving nature of the arrest, and information regarding the presence of another individual at the scene created a reasonable suspicion of safety that justified the protective sweep.
Thus, it has now been established that for a protective sweep to be justified when arrests are made outside of the home in New Jersey, the totality of the circumstances must create a reasonable suspicion of threat to officer safety.
In Jersey City and many of the surrounding areas in Hudson County and Bergen County, law enforcement often times invokes the protective sweep doctrine in order to justify a search of a person’s premises. If you, a family member or friend have had your person or property searched by the police, please do not hesitate to call our office for a free consultation.