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.
The defendant moved for an order suppressing the evidence as the fruit of an illegal search but the trial court denied the motion, finding that the protective sweep was justified. The defendant appealed, but the Appellate Division affirmed for largely the same reasons. The defendant then petitioned the New Jersey Supreme Court for certification concerning the issue of whether the protective sweep that led ultimately to the discovery of all of the other evidence was lawful.
In reversing, the Supreme Court held that the officers did not have a reasonable and articulable suspicion based upon the facts known at the time they entered the home that another party was present, especially someone who threatened officer safety. The protective sweep was therefore improper, and any evidence found in the course of the sweep, even if it was in plain view, had to be suppressed as the fruit of the poisonous tree.
The Court acknowledged that the protective sweep doctrine is a recognized exception to the warrant requirement, but it may be invoked only when officers are lawfully present in the premises for a legitimate purpose, and the officers have a reasonable and articulable suspicion that a person posing a danger to the safety of others is also there. The extent to which such a suspicion exists must be evaluated in light of the known facts and circumstances of the overall situation, and it must be based upon more than an officer’s subjective hunch.
Here, the officers lacked information sufficient to support their decision to conduct a protective sweep. They did not know the name or description of the alleged assailant, the number of people at the premises, or whether weapons were at all involved in anything that was happening there. Thus, they decided to conduct the sweep without any situation-specific information. Put somewhat differently, they proceeded on a hunch. Accordingly, any evidence seized during or as a result of the sweep had to be suppressed.
The decision reaffirms the long-held principle that officers cannot just enter a home and conduct even a cursory search for little to no reason. A search of a home – even something as minimal as a protective sweep – have to have a basis in the existing facts and circumstances.
James S. Friedman, LLC represents criminal defendants with drug and weapons charges in the New Jersey Superior Court, the New York State Supreme Court in Manhattan and Brooklyn, and federal district courts throughout New Jersey and New York City. If you have been charged with a narcotics or weapons offense, contact us to discuss your case and your options.