When the police have probable cause, they may lawfully enter a home, conduct a protective sweep and secure the premises in anticipation of obtaining a search warrant. If the police thereafter obtain a consent to search, they must be mindful of the preference in the law that searches of a home be conducted pursuant to a warrant. The State must be prepared to prove by clear and positive evidence that a valid waiver was lawfully obtained. The State in this case has not met that burden, and defendant's motion to suppress evidence is granted.*fn1
On July 2, 1989, the Jersey City Narcotics Squad conducted a surveillance outside a two family home located at 135 Monticello Avenue, Jersey City. The defendants, Sean Speid and April Alexander, entered the home's ground floor, stayed inside a short time, exited and sold small vials of cocaine to at least two purchasers. The sales occurred on the sidewalk outside the home. Ms. Alexander used a key in her possession to enter. The premises are rented to Ms. Alexander's mother, Katie.
The police arrested the two purchasers around the corner from the purchase site. Sean Speid later left the area in front
of the premises and walked west on Emory Avenue towards Bergen Avenue. The police decided to close in and arrest Alexander and Speid. Ms. Alexander was taken into custody in front of her home. Speid was apprehended days later.
Four police officers entered the Alexander home without benefit of a warrant. Once inside, it was announced that the premises were being secured until a search warrant was acquired. Ms. Alexander's siblings were rounded up and placed in the kitchen. April Alexander was read her "Miranda" warnings. When Katie Alexander arrived home from work, she was confined to the kitchen with the rest of her family. Katie Alexander asked to use her own bathroom, and was told in uncouth terms that she could urinate on the floor.
The police swept through the rooms and began searching. Sixty-one vials of crack-cocaine were found in April Alexander's bedroom. The police then advised Ms. Alexander that they were going to obtain a warrant. She was told that if a search warrant was obtained, and drugs or other items of contraband found on the premises, then not only would Ms. Alexander be arrested, but her mother, siblings and her brother's girlfriend would also be taken into custody. Ms. Alexander was repeatedly exhorted, in language peppered with expletives, to sign the consent form and permit the search of her bedroom. She eventually consented and signed a waiver.*fn2,*fn3
The State argues that the search of the Alexander home can be supported by two theories. First, the search is based upon
probable cause and exigent circumstances, second, the search is based upon a valid consent to search.
A search and seizure of a citizen's home without a search warrant is presumptively unreasonable. Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Warrantless searches are prohibited by the Fourth Amendment to the U.S. Constitution, absent an exception to the warrant requirement. A search based upon probable cause and exigent circumstances is permitted. State v. Lewis, 116 N.J. 477, 561 A.2d 1153 (1989). To support an exigent circumstances exception to the warrant requirement, there should be a clear showing of probable cause as opposed to the minimum showing of probable cause requisite to secure a search warrant. State v. Lewis, Id., at 486, 561 A.2d 1153. The court finds that the police clearly had probable cause to believe that narcotics were stored inside the Alexander home. Their observations of ...