New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

State v. Bivins and Limits on “All-Persons-Present” Search Warrants

The Fourth Amendment to the United States Constitution, as well as the analogous provisions of New Jersey state law, set rules concerning the manner in which officers can search a person, and/or their home, office or vehicle.  This body of law plays a central role in maintaining personal liberty and privacy, and impacts upon the rights and freedoms of every citizen.  However, at least one sitting US Supreme Court Justice (Breyer?) has noted that our Fourth Amendment case law is in “disarray”, or words to that effect.  This stems, at least in part, from the fact that these cases arise in a wide array of scenarios, and are very fact-sensitive.  This creates opportunities for widely divergent interpretations of facts and related applications of law, with the result that existing search and seizure case law is frequently unclear.  Indeed, this area of law demonstrates plainly and numerous individuals can have different views and opinions of the same plot line, and therefore reach different legal conclusions and results.  The New Jersey Supreme Court recently decided State v. Bivins.  This case, which is somewhat refreshing in its clarity, helps to define the limits of search and seizure activities in drug cases where the search is conducted pursuant to an “all-persons-present” search warrant.

In Bivins, the police obtained a no-knock warrant to search a residence believed to be involved in drug trafficking for narcotics and related contraband.  The terms of the warrant allowed the police to search the residence, and “all persons present reasonably believed to be connected to said property and investigation.”  The affidavit supporting the warrant stated, among other things, that the residence was “open for the sale of narcotics twenty-four (24) hours a day, seven (7) days a week.”  One of the state troopers involved in the execution of the warrant asserted that people were “in and out of the house at all times” and there may have been “a lot more occupants in there than [those] seen.”

This trooper also testified that when the police were entering the residence, he learned that two individuals had departed and were heading toward a grey Pontiac.  The trooper approached his designated location and saw a grey Pontiac approximately five or six houses down the block from the target residence.  The trooper also observed two individuals in the car, who were later identified as defendant Bivins and his cousin.  Significantly, the trooper did not personally observe Bivins or his cousin leave the residence and enter the Pontiac.  Bivins and his cousin were removed from the vehicle and searched, and each had 35 bags of cocaine.Reasoning that most people would believe it more probable than not that Bivins and his cousin were the same individuals who were reported as being in the residence just prior to their arrest, the Trial Court denied Bivins’ motion to suppress, but the Appellate Division reversed.  Citing Bailey v. United States, the Court observed that when searching a residence, officers can only detain persons in the immediate vicinity of the home.  The probable cause supporting the search of the residence as described in the warrant could not be extended to Bivins and his cousin since they were not in the immediate vicinity of the residence when they were searched.

The New Jersey Supreme Court affirmed, but on different grounds.  Rejecting the Appellate Division’s application of Bailey, the Supreme Court’s opinion was based largely on it’s own 1972 decision in State v. De Simone, where the Court approved the use of an “all-persons-present” warrant.  There, the Court noted that the validity of an all-persons-present warrant depends upon whether “there is good reason to suspect or believe that anyone present at the scene will probably be a participant” in criminal activity.  Further, and “with regard to the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general warrant if the individual is thus identified by physical nexus to the on-going criminal event itself.”  In the matter at bar, the State failed to sufficiently link Bivins’ presence in the area to the target residence for which the all-persons-present warrant was issued.  Thus, the activities of law enforcement in this case amounted to a warrantless search lacking probable cause to search Bivins who was apparently just sitting sitting in the parked car.  No officer involved in the execution of the warrant presented any evidence that Bivins and his cousin were the same men that departed the residence.  Because the State failed to establish their presence at the residence, the search of Bivins and his cousin fell outside the purview of the all-persons-present warrant, and was therefore unconstitutional.

Any decision that clarifies Fourth Amendment law is welcome, particularly when it holds the State and law enforcement to a higher standard.  Bivens is particularly important because it clarifies the requirements for an all-persons-present warrant which, as the facts of this case demonstrate, can result in abusive enforcement activities.

James S. Friedman LLC represents defendants with narcotics charges in the State and Federal courts throughout New Jersey, and in the State and Federal courts in New York City.  If you have a drug charge and seek thoughtful, aggressive representation, call us immediately to start planning your defense.