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

Articles Posted in Search and Seizure

In State v. Robinson, decided on May 1, 2017, the New Jersey Supreme Court considered the extent to which the “protective sweep” doctrine, which is an exception to the warrant requirement, applies to a police search of the passenger compartment of a vehicle during a traffic stop.  In Robinson, an officer observed a vehicle driving in a manner he considered unsafe in an area known for drug activity.  He stopped the vehicle, which contained four occupants, and asked the driver for his license and registration.  The driver, Robinson, misidentified himself, told the officer that his license was suspended, but provided proof of insurance and a registration.  One of the other occupants, Henderson, misidentified himself as the Robinson.  The remaining occupants correctly identified themselves and produced ID cards.  The driver stated his friend owned the vehicle, but did not know his name.  The officer learned from his dispatcher that the driver had an outstanding warrant and was known to carry weapons, and that Henderson had a “caution for weapons”.  The officer called for backup, and other officers arrived.  Defendant and Henderson were removed from the vehicle, arrested, and handcuffed.  Both were searched, but neither had weapons.  Some of the officers now present watched the defendant and Henderson , both of whom stood on the roadside and could not return to the car.  The other two occupants were detained, but not arrested.  One of them left her purse on the front passenger seat.  An officer then conducted a sweep of the car’s interior to check for weapons, at which time he touched the bottom of the purse and detected the outline of a gun.  He retrieved the gun, brought it to his vehicle, and told the other officers to arrest the remaining two occupants.  Defendant pleaded guilty, but later moved to suppress the gun.  The trial court denied his motion, but a majority of the Appellate Division panel found that the officer’s search of the car was not a lawful protective sweep.  One judge dissented.

The Supreme Court found that the surrounding circumstances created a reasonable suspicion that the vehicle contained a weapon, but the five officers present at the scene acted in a manner that eliminated the risk that any of the four occupants could immediately access a weapon.  Thus the protective sweep exception to the warrant requirement could not be used to salvage the search.

In discussing this conclusion in depth, the Court observed that warrantless searches are permissible only if they fall within one of the recognized exceptions to the warrant requirement.  The protective sweep exception, which derives from Terry v. Ohio, held that police may conduct an investigatory stop if there are “specific and articulable facts which, taken together with rational inference from those facts, reasonably warrant that intrusion.”  The Court also noted that Terry stops are narrowly tailored to allow a reasonable search for weapons.  Further, the United States Supreme Court applied the protective sweep exception to a vehicle in Michigan v. Long, and New Jersey adopted that standard in State v. Lund.  The standard was discussed further in State v. Gamble.  Taken together, Long, Lund and Gamble therefore set the standard for a valid protective sweep of a vehicle that has been stopped.  To justify such a search, the State must present specific and articulable facts that, when taken with the rational inferences from those facts, justify a belief that someone in the car is dangerous and may have immediate access to a weapon.  Protective sweeps of vehicles cannot be justified by the potential presence of a weapon; rather, the doctrine turns on imminent danger to the police when someone has access to a vehicle that may hold a weapon, or may be able to overpower or evade officers at the scene. Continue reading

In State v. Bacome, decided January 31, 2017, two Woodbridge detectives observed the defendant-driver and a passenger in a Ford Bronco.  The passenger, who was in the front seat, was later identified as the vehicle’s owner.  The detectives claimed that both men were known drug dealers.  They followed the Bronco to Newark, but lost sight of it in an area purportedly known for drug trafficking.  They then assumed that the Bronco would return to Woodbridge with drugs purchased in Newark.  They spotted the Bronco after returning to Woodbridge, and stopped it when they saw the passenger was not wearing a seatbelt.

Each detective approached the Bronco from opposite sides of the vehicle.  One detective stated that Bacome leaned forward and appeared to be reaching under his seat.  He immediately ordered Bacome out of the car.  The other detective then ordered the passenger from the car, and both men complied.  Each was questioned separately about their trip, and gave contradictory responses.  Since the passenger was now out of the car, the detective was able to to see rolled up paper shaped like a straw and a small piece of steel wool.  Both items were indicative of drug use.  The passenger consented in writing to a vehicle search.  The search yielded crack cocaine and other paraphernalia.  Both men were arrested.

The trial court denied defendants’ motion to suppress the drugs and other seized items, finding that the vehicle stop based upon the seatbelt violation was lawful.  Further, the removal of both men from the Bronco was also lawful because the detectives had reasonable and articulable suspicion of criminal activity. Continue reading

While investigating a noise complaint at an apartment complex, an officer observed James Legette standing on a common porch.  The officer approached and Legette partially opened a door leading into his area.  The officer then smelled burnt marijuana, entered the porch area, and identified himself as an officer.  As Legette began to walk away, the officer requested identification.  Legette responded that he had to retrieve his identification from the apartment, and the officer replied that he would have to accompany him.  Legette entered the apartment and the officer followed.  The officer noticed a bulge in Legette’s sweatshirt.

After entering the apartment, Legette presented his identification and the officer radioed a request to check for outstanding arrest warrants.  Legette them removed his sweatshirt and asked a woman who was in the apartment to place it in the bedroom.  The officer then seized the sweatshirt from the bedroom and took Legette, who appeared anxious, outside.  Obviously, the officer did not have a search warrant.

The arrest warrant check was negative, and Legette did not consent to a search of the sweatshirt.  The officer had a police dog sniff the sweatshirt.  A “metallic” noise could be heard when the dog moved the sweatshirt.  The officer then discovered a loaded handgun in the sweatshirt. Continue reading

State v. Bryant, a recent search and seizure case, discusses the factual predicate necessary to justify a protective sweep of a home.

Officers went to defendant’s home in response to a domestic violence report.  A woman had called the police, stated that she had been assaulted there, and was now outside in her car.  The woman did not provide her name or the identity of her attacker, but did provide the police with an address.  Having only this limited information, the first two officers to arrive at the home knocked on the door, entered, and told defendant to sit on a couch.  One officer questioned the defendant while the other conducted a protective sweep of the apartment, searching any area where a person may hide.

During the protective sweep, the officer saw what he thought was marijuana sticking out of a box in a closet.  The officer seized it, the defendant was arrested and removed from the premises, and a search warrant was requested and received.  The officers then discovered 55 grams of marijuana, packaging material and an assault weapon.  The defendant was charged with possession of CDS, Possession of CDS with intent to distribute, possession of an assault firearm, and possession of a weapon by a person with a prior indictable conviction. Continue reading

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. Continue reading

On December 2, 2015, the New Jersey Supreme Court decided State v. Watts.  This decision, coming on the heels of the late-September decision of State v. Witt, may suggest a continuing erosion of a criminal defendant’s constitutional right to be free from unreasonable searches and seizures.

The police obtained a warrant to search the defendant and his apartment, set up a surveillance, and waited for the defendant to leave his residence.  The defendant left his home and walked to a liquor store located about 1 1/2 blocks from his apartment.  He was detained when he left the liquor store and patted down for weapons.  The officers also took his apartment keys, but decided to not conduct a more thorough search of the defendant’s person at that point because they were then located in a busy area with pedestrian and vehicular traffic.  Some of the officers then returned to the defendant’s apartment with his keys.  They entered and searched it, but did not locate drugs or related paraphernalia.  Other officers handcuffed the defendant, placed him in a police car, and transported him back to his apartment.  He shook his leg as he walked, and four bundles of heroin fell from his pants.

The defendant moved to suppress the drugs, arguing that the police could not detain him to conduct another search after the pat down on the street.  The trial court granted the motion and suppressed the drugs, finding that the officers could not continue to detain the defendant and conduct further searches after the search of his person conducted outside the liquor store failed to yield any drugs.  The court believed that the warrant gave the police one opportunity to search the defendant – either outside the liquor store or back at his apartment – and additional searches violated his constitutional rights.  Continue reading

Generally speaking, a motor vehicle is not protected from unreasonable searches and seizures to the same extent as a home.  Our State’s Supreme Court has further reduced that level of protection.

William Witt was pulled over on Route 48 in Carneys Point in Salem County in December 2012.  Witt’s high beams were activated, and he failed to dim them as he passed a nearby police officer.  The officer spoke with Witt, determined that he was intoxicated, performed field sobriety tests, and arrested him.  The officer searched the car for an open alcohol container and located a handgun in the center console.  Witt moved to suppress the gun, arguing that the search and seizure were unreasonable.  This argument was based on the 2009 Supreme Court decision, State v. Pena-Flores, which required the police to have both probable cause and exigent circumstances before conducting a warrantless search of an automobile.  The search of Witt’s vehicle was unconstitutional because there were no exigent circumstances preventing the police from first obtaining a warrant.

In the September 2015 decision of State v. Witt, the NJ Supreme Court overturned Pena-Flores and retreated to the standard set in the 1981 decision of State v. Alston.  The earlier standard allowed police to search a vehicle without a warrant when they had probable cause to believe the vehicle contained evidence of a crime, and where the probable cause stemmed from circumstances that were unforeseeable and spontaneous. Continue reading

Cleveland, Ohio has become the latest city to enter into a consent decree with the United States Justice Department (“DOJ”) concerning the conduct of its police force.  Other cities that have previously entered into similar agreements include New Orleans, Seattle and Detroit.

The consent decree stemmed from a DOJ investigation that found Cleveland police officers had routinely used excessive force (e.g., tasers, pepper spray and guns) against mentally ill, unarmed and already-handcuffed suspects.  DOJ investigators reviewed approximately 600 use-of-force incidents that occurred between 2010 and 2013 and concluded that officers almost routinely used guns in a “careless and dangerous manner”.  Other problems with the police department included its apparent inability and/or unwillingness to investigate complaints against itself.

The consent decree will cover such topics as use of force by police officers, community policing and engagement, accountability, crisis intervention and bias-free policing.  The consent decree will be supervised by a Federal judge, and will terminate only after Cleveland can demonstrate sustained and substantial compliance with its terms.  If the City fails to implement the changes contemplated by the agreement, the judge can order them to do so. Continue reading

The United States Supreme Court decided Grady v. North Carolina on March 30, 2015.  After completing his prison term for sex offenses, the State determined that Grady was a recidivist sex offender, and wanted to place him on satellite-based monitoring.  Grady argued that the monitoring program, which required him to wear a monitoring device at all times, violated his Fourth Amendment right to be free from unreasonable searches and seizures.  Grady’s argument was based on U.S. v. Jones, where the Supreme Court held that installing a GPS tracking device on a suspect’s car was a “search” within the meaning of the Fourth Amendment.  The State courts rejected Grady’s argument, finding that the monitoring program at issues was not a Fourth Amendment search.  This conclusion was based, apparently in large part, upon the view that the proceeding giving rise to the monitoring was civil in nature, whereas Jones was a criminal case, which entailed different (higher) legal standards.

The Supreme Court rejected the reasoning of the State courts.  First, the monitoring program was a “search” because it enabled the State to “physically intrude on a constitutionally protected area … [A] State conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.”  The fact that the monitoring program was civil in nature was rendered meaningless by settled law establishing “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations [] and the government’s purpose in collecting information does not control whether the method of collection constitutes a search.”

Ultimately, however, the Court observed that the Fourth Amendment protects only against unreasonable searches and seizures.  Thus, it remanded the matter to the North Carolina courts to determine whether the monitoring program was reasonable when viewed as a search. Continue reading

The United States Supreme Court decided Rodriguez v. United States on April 21, 2015.  The decision enhances Fourth Amendment protections in cases involving motor vehicle stops.

Briefly, Rodriguez, the driver, and his passenger were stopped by a Valley, Nebraska police officer for veering onto the shoulder of a State highway and then jerking back onto the road.  The officer was a K-9 officer who had his police dog with him.  He conducted a records check on the vehicle’s occupants, questioned Rodriguez and his passenger, checked all of the necessary documents, wrote a warning ticket, and returned the documents to the occupants with the warning ticket.  Thus, the main purpose of the initial stop – the investigation of a traffic infraction – was completed.

Nevertheless, the officer did not consider Rodriguez and his passenger free to leave.  He requested permission to walk his dog around the vehicle, and Rodriguez declined.  The officer then instructed Rodriguez to turn off and exit the vehicle, and stand in front of his patrol car to await the arrival of a second officer.  Rodriguez complied, the second officer arrived, the dog was escorted around the vehicle and alerted to the presence of drugs (methamphetamine).  Significantly, approximately seven to eight minutes had passed between the issuance of the warning ticket and the alert by the dog. Continue reading