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New Jersey Supreme Court Announces Framework for Determining Constitutionality of Warrantless Protective Sweep of Home Where Arrest Is Made Outside the Home

by Douglas Ankney

In consolidated cases presenting an issue of first impression, the Supreme Court of New Jersey announced the framework for determining the lawfulness of a warrantless protective sweep of a home where the arrest is made outside of the home.

In the first case, a superior court issued an order authorizing officers of the Little Falls Police Department (“LFPD”) to retrieve a Beretta firearm from the home of Christopher Radel. More than a month later, the order was received by LFPD Sergeant Robert Prall. He waited yet another 12 days before acting on the order, during which time he learned that Radel had several firearms that were unlawful for Radel to possess because of a previous felony conviction.

Even though Prall had probable cause to secure a warrant to search Radel’s residence for firearms, he failed to apply for a search warrant. Instead, Prall and six other officers surveilled Radel’s residence. As soon as the surveillance began, Prall observed a person wearing a blue coat enter Radel’s residence through the back door. Ten minutes later, Detective John Mancato observed Radel exit the front door of the home wearing a blue coat and carrying a basket of laundry. He placed the laundry into the backseat of his vehicle parked in the driveway. When he turned around, Macato arrested and handcuffed him. Radel did not resist.

Prall later testified at a suppression hearing that he had hoped to secure Radel’s consent to search his house but determined that Radel was too impaired on alcohol or drugs. Prall then ordered a protective sweep of Radel’s residence for purposes of officer safety because he believed that there were weapons and other persons “potentially on the property.” Prall came to that conclusion because (1) two vehicles were parked in the driveway, (2) the home’s windows had coverings that obstructed view into the home, and (3) the blue-jacketed person Prall had observed may not have been Radel.

Three officers entered the home and searched every room where a person might be located. During the “sweep,” the officers observed, in plain view, contraband that included imitation firearms, butterfly knives, a ballistic vest, simulated police badges, marijuana, and drug paraphernalia. Mancato included these observations in his subsequent affidavit for a search warrant.

During execution of that search warrant, police seized, inter alia, seven rifles, two shotguns, four handguns, and numerous rounds of ammunition. The trial court denied Radel’s motion to suppress this evidence, and he appealed.

The Appellate Division reversed, holding that there was “no support for the [trial court’s] conclusion that the police had a reasonable and articulable suspicion that there were other persons inside the home or that they posed a risk to the police or others.” The New Jersey Supreme Court granted the State’s Petition for Certification.

In the second case, a Gloucester County Superior Court judge issued a warrant for Tyler Fuller’s arrest for his failure to abide by the terms of pre-trial release and to appear in court on a burglary charge. Detective John Petrosky and Trooper Richard Hershey were informed that Fuller was living in a local trailer park that was known for an abundance of criminal activity. Fuller allegedly lived in the first building to the right after entering the trailer park.

However, upon entering that building, Petrosky and Hershey encountered Mark Boston and William Willis. Both Boston and Willis had outstanding warrants for their arrests. Boston fled to a bedroom with Petrosky in pursuit. After a struggle, Petrosky handcuffed Boston and observed that the bedroom was littered with loose bullets and shell casings. Willis identified a photograph of Fuller and told the officers that Fuller could be found in a trailer at the back of the trailer park. Willis warned Petrosky and Hershey to “be careful ... There’s two males back there.” The officers knew that the trailer belonged to Keith Terres.

Petrosky and Hershey went to the trailer in question. Petrosky observed through a window that Fuller was speaking with Allison Terres. Petrosky yelled to Fuller to get on the ground and that he was under arrest. Fuller ran through the front door where he was intercepted by Hershey. Petrosky ran to assist. He observed that Hershey had Fuller face down and handcuffed on the trailer’s deck within five feet of the open front door. While Hershey attempted to remove a hypodermic needle from Fuller’s pants pocket, Petrosky observed Allison Terres standing in the front door holding a baby. Petrosky asked her “where’s the other male?” After Terres responded that no one else was inside, Petrosky instructed her to move aside, and he then entered the trailer.

During the protective sweep of the trailer, Petrosky observed a three foot wide and three foot deep hole in the floor partially covered by a sheet of plywood. When Petrosky looked into the hole, he observed handguns and other guns. The trailer was secured by other officers while Hershey applied for a search warrant based on Petrosky’s observations. The next day, the warrant was executed and multiple weapons were seized from Terres’ trailer.

Terres filed a motion to suppress the evidence seized. The trial court denied the motion, finding that Petrosky had conducted a lawful protective sweep of Terres’ trailer. She appealed.

In an unpublished opinion, the Appellate Division affirmed the trial court’s denial of the motion to suppress. The New Jersey Supreme Court ultimately granted Terres’ Petition for Certification and consolidated the two appeals.

The Supreme Court noted that the cases involve an issue of first impression for it, stating: “We must determine whether the police have a right to conduct a protective sweep of a home when an arrest is made outside the home and, if so, the requisite justification for a warrantless entry and protective sweep.”

The Court observed that both the Fourth Amendment to the U.S. Constitution and Article I, Paragraph 7 of the New Jersey Constitution ensure the “right of the people to be secure in their ... houses ... against unreasonable searches and seizures, shall not be violated.” For Fourth Amendment purposes, “the home is the first among equals.” Florida v. Jardines, 569 U.S. 1 (2013). In fact, “[p]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. U.S. Dist Court, 407 U.S. 297 (1972).

A warrantless search of a home is “presumptively unreasonable” and “must be subjected to particularly careful scrutiny.” State v. Bolte, 560 A.2d 644 (N.J. 1989). A warrantless search of a home is permissible only if the search falls within “one of the few specifically established and well-delineated exceptions to the warrant requirement.” State v. Frankel, 847 A.2d 561 (N.J. 2004). One recognized exception is the “protective sweep doctrine.” State v. Bryant, 148 A.3d 398 (N.J. 2016); see Maryland v. Buie, 494 U.S. 325 (1990). “The State bears the burden of proving by a preponderance of the evidence the validity of a warrantless” protective sweep. State v. Edmonds, 47 A.3d 737 (N.J. 2012).

The U.S. Supreme Court has delineated the contours of the protective sweep doctrine with respect to in-home arrests. In Buie, police officers entered the defendant’s home where they arrested him pursuant to an arrest warrant. While searching the residence for the presence of other people present, police discovered evidence incriminating the defendant. The defendant challenged the lawfulness of that protective-sweep search. The competing concerns addressed by the U.S. Supreme Court in Buie were the defendant’s privacy interests in his home where he was arrested versus the officers’ interests in taking reasonable steps to ensure their safety during and after the arrest.

In recognizing the protective sweep as an exception to the warrant requirement, the Buie Court likened a protective sweep to the limited pat down by police for weapons during a street encounter when there’s a reasonable “belief, based on specific and articulable facts, and not on a mere inchoate and unparticularized suspicion or hunch, that [they are] dealing with an armed and dangerous individual.” Terry v. Ohio, 392 U.S. 1 (1968).

Buie set forth a two-tiered standard governing the scope of a protective search of a residence during an in-home arrest: (1) “[O]fficers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched,” and (2) officers could search beyond those adjoining areas based on “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”

The Court stated that the distinguishing feature of the instant appeals is that the arrests occurred outside the homes of Radel and Terres. This is a significant factor because “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant,” the Court stated. Payton v. New York, 445 U.S. 573 (1980). Although the issue of arrests made outside the home but in close proximity thereto was not addressed in Buie, the Court explained that “the threat to an officer may be no less if the arrest is made five feet within or five feet outside the open door of a home if the officer has a reasonable and articulable suspicion that an individual harboring inside poses an imminent danger.”

The Court noted that the U.S. Supreme Court and the New Jersey Supreme Court haven’t addressed the current issue; however, several U.S. Courts of Appeals and state courts have ruled on the issue. In United States v. White, 748 F.3d 507 (3d Cir. 2014), the Third Circuit held that “a sweep incident to an arrest occurring just outside the home must be analyzed under the second prong of the Buie analysis,” i.e., the reasonable and articulable suspicion requirement. The White Court stated that Buie’s first prong is not applicable with an arrest outside the home. The White Court emphasized that “the Fourth Amendment draws a fine line at the entrance to the house” which “must not be only firm but also bright.” Guided by that principle, the White Court reasoned that “[w]hen an arrest occurs just outside of the home, the unassailable public policy of protecting law enforcement officers, as well as victims, bystanders, and even assailants, is appropriately balanced with the Fourth Amendment right to be free of unreasonable searches and seizures by application of Buie’s [second] prong.” The Fifth, Sixth, and Tenth Circuits, as well as the states of Kentucky and Idaho, have applied Buie’s second prong to cases with similar facts. (See opinion for supporting citations from those jurisdictions.)

After discussing the foregoing cases, the Court announced that “the justification for entry into the home to conduct a protective sweep must be based on the second prong in Buie”—whether police have reasonable and articulable suspicion that an individual who poses a danger to those at the scene of the arrest is hiding in the area to be swept.

The Court instructed that “whether a reasonably prudent officer, who has arrested a suspect outside a home, has sufficient articulable facts to form an objectively reasonable belief that the area to be swept harbors an individual posing a danger to those on the arrest scene will depend on the totality of the evidence.” See Buie. (internal quotations omitted) A “hunch” or “unparticularized suspicion” that there may be someone in the home who may launch an attack is insufficient to justify entering the home to conduct a protective sweep, the Court further instructed. See id. The Court reiterated that warrantless entry into a home is presumptively unreasonable and that a protective sweep is a recognized exception to the warrant requirement. Consequently, the prosecution bears the burden of establishing the necessity to enter a home to conduct a protective sweep. 

The Court listed some factors that may be considered in determining whether a protective sweep is justified when an arrest is made outside the home: (1) whether the police have information that others are in the home with access to weapons and a potential reason to use them or otherwise pose a dangerous threat, (2) the imminence of any potential threat, (3) the proximity of the arrest to the home, (4) whether the suspect was secured or resisted arrest and prolonged the police presence at the scene, and (5) any other relevant circumstances. However, entry into the home and a protective sweep cannot be based on a self-created exigency by the police. See State v. Davila, 999 A.2d 1116 (N.J. 2010).

Applying the foregoing principles first to Radel, the Court determined: no crisis arose at the scene; the surveillance and arrest went according to plan; Radel did not resist arrest; and the police did not possess any information that any other person was present in the house or posed a danger. The Court added that the fact the windows to the house were covered from the inside generally does not suggest nefarious activity. After all, the purpose of drapes or shades is to provide privacy and screen out the sun. Further, the police did not know who owned the second car in the driveway; whether it was used by Radel; or whether it was used by his parents or a friend. In sum, the Court concluded that the police did not have articulable facts to give rise to a reasonable suspicion that another person was present in Radel’s house who was potentially dangerous.

Accordingly, the Court affirmed the judgment of the Appellate Division reversing the denial of Radel’s suppression motion and remanding to the trial court to determine whether, excluding the information gathered during the unconstitutional sweep, sufficient facts were presented in the warrant affidavit to justify the issuance of the search warrant.

Turning next to Terres’ case, the Court observed that Petrosky and Hershey had been warned to “be careful” prior to going to Terres’ trailer. It further observed the officers were advised that two males were allegedly present within Terres’ trailer; the officers faced heightened danger when Fuller resisted arrest and fled out the trailer’s front door to be intercepted by Hershey; and the officers were in heightened danger while Hershey struggled with Fuller on the porch only a few feet from the trailer’s opened front door. Thus, under these circumstances, the Court concluded that Petrosky had a reasonable and articulable suspicion to believe that a person might be in the trailer capable of launching an attack.

Accordingly, the Court affirmed the judgment of the Appellate Division denying Terres’ suppression motion. See: State v. Radel, 267 A.3d 426 (N.J. 2022). 

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