On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court authorized a "protective sweep" exception to the Fourth Amendment's warrant requirement, recognizing that law enforcement officers must be able to conduct, when necessary for safety, a "quick and limited search" of a home incident to an arrest. In this appeal, the Court considers Buie in the non-arrest setting, where police had consent to enter, but lacked probable cause to arrest or to search the premises.
On November 13, 2003, defendant Johnnie Davila and three acquaintances embarked on a crime spree involving a car theft and two homicides. Police found the stolen vehicle in Newark. A cell phone that was missing from the vehicle, presumably taken by a perpetrator, was used after the homicides. Seven calls were made to an apartment in Newark, with the last call at 1:01 a.m. on November 15. Eleven hours after that call, a joint police team, including six plain-clothed officers, headed to the apartment. The officers, admittedly aware that they lacked probable cause, did not attempt to get a search warrant. According to the testifying officer, they knocked on the door; an overnight guest, Jayaad Brown, answered; the officers identified themselves and asked if they could come inside; and Brown let them in. Brown testified that he did not invite them inside, and when he opened the door, they pointed guns at him and restrained him. The testifying officer conceded Brown's behavior was not threatening and the officers did not perceive anything suspicious occurring in the apartment. Once inside, the officers immediately dispersed throughout the apartment to "secure any other individuals" that may have been inside because of suspicion that the occupants might be "connected to the homicides." Cocaine was found on a dresser in the rear bedroom. As a result of that discovery, everyone in the apartment, including Davila, was arrested. While making the arrests, the officers found the stolen cell phone in the middle bedroom where Davila had been found.
Davila gave a full statement implicating the three other individuals. All four confessed to participating in the homicides. Davila and his co-conspirators were charged with murder, robbery, weapons offenses, and theft. Davila moved to suppress the evidence seized from the apartment as the product of an illegal search and seizure. The court did not credit Brown's testimony and relied on the officer's testimony, finding that the officers were lawfully in the apartment based on consent. The court also held that the search was a valid protective sweep because police were investigating a double murder in Newark that had occurred within the past 48 hours, and a cell phone tied to the murders was used to call the apartment. The court held that the evidence seized was admissible under the plain-view exception to the warrant requirement.
Davila pleaded guilty to two counts of felony murder and conspiracy to commit robbery. He was sentenced to two concurrent thirty-year terms, with a thirty-year period of parole ineligibility. Davila appealed, arguing that the trial court improperly denied the motion to suppress because the police search was unlawful. The Appellate Division rejected that argument and affirmed. The Court granted certification to review whether the search of the apartment constituted a valid protective sweep, exempt from the Fourth Amendment's warrant requirement. 200 N.J. 368 (2009).
HELD: A protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest. Law enforcement officers may conduct a protective sweep only when (1) the officers are lawfully within private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. The sweep will be upheld only if it is (1) conducted quickly, and (2) restricted to areas where the person posing a danger could hide. When an arrest is not the basis for entry, the police must be able to point to dangerous circumstances that developed once the officers were at the scene.
1. The first issue is whether police were lawfully in the apartment. The court's conclusion that Brown consented to police entry rested on credibility findings, for which the record contains adequate, substantial and credible support. (pp. 14-16)
2. The Fourth Amendment protects the people's right to be secure in their persons and houses against unreasonable searches and seizures. A warrantless search in a home is presumptively unreasonable. The State bears the burden of demonstrating that a warrantless search is reasonable because it fits within a recognized exception to the warrant requirement. Here, the search depends on the protective sweep exception. The issue is one of first impression in New Jersey. (pp. 16-19)
3. In Maryland v. Buie, the United States Supreme Court defined a "protective sweep" as a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." For guidance, Buie turned to the reasonableness and balancing principles applied in Terry v. Ohio and Michigan v. Long, and directed a three-part test for courts reviewing the validity of a protective sweep. First, a protective sweep is valid if, incident to an arrest, police restrict the search to the immediate vicinity of the arrest from which an attack might be launched. Police seeking to expand the search area may do so only if there are specific facts that would cause a reasonable officer to believe that an individual is on the premises and poses a danger to those present. Second, the search must be "quick," lasting no longer than necessary to dispel the reasonable suspicion of danger. Third, the officers may only engage in a limited protective search, which must be narrowly confined to a cursory visual inspection of those places in which a person might be hiding. (pp. 19-23)
4. New Jersey has long shared the concerns for individual rights and officer safety that underpin Terry and Long. The sweep authorized in Buie is aligned with an evolution of familiar principles adhered to in this State, which provide officers with critical safety tools. Buie established a valuable, workable standard for evaluating protective sweeps incident to an arrest. The issue now is whether the protective sweep exception should be more broadly available to officers who are lawfully present in private premises for some purpose other than to make an arrest, and, if so, under what circumstances. (pp. 23-24)
5. The result in Buie did not hinge on the fact that an arrest took place. Rather, the probable cause to arrest Buie provided justification for the police presence in the home. The Court expressed serious concern for officer safety when certain circumstances are present. In both Terry and Long, the limited intrusion resulting from the search was justified by the ability of the officer to point to "specific and articulable facts, which taken together with rationale inferences from those facts," indicated that the safety of the officer or the public was in danger. Buie applied the same logic to extend the standard for a protective search into a home. There is no basis from Buie to justify restricting protective sweeps to the arrest context. That conclusion is bolstered by the undeniable national trend toward greater availability of protective searches, which is marked by the same officer-safety concerns that animated Buie's balancing test, and which demonstrates a general agreement that those concerns are not exclusive to the in-home arrest context. This Court agrees and holds that a protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest. (pp. 24-31).
6. At the same time, a protective sweep is not automatically valid every time officers are lawfully within a home. Courts have taken particular care in considering protective sweeps in the non-arrest context. The Fifth Circuit expressed concern about protective sweeps used where police presence was based on consent to enter. It reformulated the Buie test into an inquiry examining whether police were lawfully on the premises; the officers had a reasonable articulable suspicion that the area to be swept harbored an individual posing a danger; the sweep was limited to the places in which a person could hide; and the sweep took place within narrow time constraints. The Second Circuit also voiced concern, commenting that when police gain access to a home by consent, generously construing Buie would enable officers to obtain consent as a pretext for a warrantless search. Also, the purpose of a protective sweep is to discover individuals, not contraband. (pp. 31-37)
7. A protective sweep of a home may only occur when (1) officers are lawfully within the premises for a legitimate purpose, which may include consent to enter; and (2) the officers have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. Where those substantive conditions are met, as a matter of procedure, the sweep will be upheld only if (1) it is cursory, and (2) it is limited in scope to locations in which an individual could be concealed. In a non-arrest setting, the legitimacy of the police presence must be probed. There must be a careful examination of the basis for the asserted reasonable, articulable suspicion of dangerous persons on the premises. The court should examine whether the request for entry was legitimate and whether the officers can identify articulable reasons for suspecting potential harm from a dangerous person that arose once the officers arrived at the scene. The record in this case suggests that the officers, who admittedly lacked probable cause and cited to no new development, arrived with the intent to perform a protective sweep. If that turns out to be accurate, then the search was unconstitutional and its fruits must be suppressed. (pp. 37-40)
8. In summary, in the warrantless search context, the State bears the burden of proving the reasonableness of a protective sweep. The State must prove that the police presence occurred pursuant to a recognized exception to the warrant requirement. The court must consider the validity of the basis asserted to justify the police presence, and whether there was an articulable need to perform a sweep due to a perception of danger truly unforeseen and spontaneous. On remand, the court will need to make a specific finding that the police went to the apartment for a legitimate purpose, not with the intent to obtain consent as a pretext for conducting a warrantless search. The police must be able to articulate specific facts demonstrating a reasonable suspicion, developed after they arrived, that another person is present, as well as a reasonable basis for believing that the person present is a danger to those at the scene. The search must be confined to a cursory visual inspection of places where a person might hide, and it must last no longer than needed to dispel the reasonable suspicion of danger. (pp. 40-44)
9. In this case, there was sufficient evidence for the trial court to find that the officers entered the apartment with consent. Questions remain about the legitimacy of the investigative technique used. The trial court is directed to consider specifically whether the knock-and-talk technique used by the officers was a pretext to gain access to conduct an unconstitutional search. The factors established by the trial court as providing articulable suspicion, though relevant, are insufficient to justify the invasion that occurred in this case. The Court reverses and remands for supplemental proceedings to determine whether the police entry can be shown to meet the directives contained in the Court's opinion. (pp. 44-46)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for supplemental proceedings to determine whether the police entry meets the directives contained in the Court's opinion.
CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LaVECCHIA's opinion.
The opinion of the court was delivered by: Justice LaVECCHIA
A warrantless search of a dwelling led to the arrest of defendant Johnnie Davila. Defendant moved to suppress the evidence obtained as a result of that search. He contested the asserted consensual nature of the entry of six officers into the apartment and, further, challenged the officers' right to search the entire apartment under the rubric of conducting a protective sweep for purposes of officer safety. The trial court's denial of defendant's motion led to his plea. Defendant appealed and the Appellate Division affirmed.
We granted certification to address two important issues arising out of Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed. 2d 276 (1990). There, the United States Supreme Court recognized that law enforcement officers must be able to conduct, when necessary for safety's sake, a "quick and limited search" of a dwelling incident to an arrest, and authorized a "protective sweep" exception to the Fourth Amendment's warrant requirement. Id. at 327, 110 S.Ct. at 1094, 108 L.Ed. 2d at 281. In this matter we consider for the first time Buie and its application in a non-arrest setting in which entry was based on consent. The issue is squarely presented. The State's argument throughout this matter has been that once the investigating officers' door knock was answered and an apartment occupant consented to speak to the officers, the officers were entitled to conduct a protective sweep of the entire apartment because the crime under investigation involved a double murder and the officers at the doorway thought that they might find perpetrators of the murders in the apartment. That assertion is in juxtaposition to the State's admission that the officers knew when they went to the apartment that they lacked both probable cause to arrest and probable cause to search the premises.
We hold that the existence of the arrest warrant in Buie was not essential to the Supreme Court's rationale for approving the officers' use of a protective sweep in that matter.
However, to permit a warrantless protective sweep of a home whenever officers are lawfully within premises, without appropriate limitations, risks swallowing whole the salutary aims of requiring an advance warrant to search. Individuals are possessed of a constitutional right to be free from unreasonable searches and seizures, particularly when in the sanctity of a home. That right expressly recognizes, however, that governmental officers, tasked with the maintenance of peace within society, occasionally may infringe on the privacy of the individual, even when lacking a warrant issued by a neutral magistrate, when exigent circumstances demand immediate action.*fn1
It falls to the courts to evaluate those competing interests.
The ability of law enforcement officers to take reasonable steps to protect themselves from harm while performing their lawful duties has been a matter of concern to this Court that has weighed in the balancing of the reasonableness of officer behavior. In seeking proper balance in this non-arrest context, we recognize that a protective sweep --- in appropriate circumstances -- is a necessary and important tool for law enforcement safety. We therefore hold that officers may employ the technique of a protective sweep of a dwelling subject to the following restrictions.
A protective sweep may only occur when (1) police officers are lawfully within private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. Where those substantive conditions are met, as a matter of procedure, the sweep will be upheld only if (1) it is conducted quickly; and (2) it is restricted to places or areas where the person posing a danger could hide. Importantly, when an arrest is not the basis for officer entry, the legitimacy of the police presence must be carefully examined as well as the asserted reasons for the protective sweep. Enhanced precautions are necessary to stem the possibility that a protective sweep is nothing more than an unconstitutional warrantless search. The police cannot create the danger that becomes the basis for a protective sweep, but rather must be able to point to dangerous circumstances that developed once the officers were at the scene. Where police are present in a home in a non-arrest context, there is too great a potential for the pretextual use of a protective sweep to turn an important tool for officer safety into an opportunity for an impermissible law enforcement raid.
Because the standard we articulate today was not available to the trial court and because the record as developed does not address, let alone satisfy, the limitations announced, we reverse and remand for supplemental proceedings to determine whether the police entry can be shown to meet the directives contained herein.
In the early afternoon hours of November 13, 2003, defendant and three acquaintances embarked on a crime spree that began with a car theft and left two homicide victims in its wake.*fn2 Defendant and his conspirators, disguised in ski masks and armed with guns, stole a Jeep Cherokee in the City of Newark and drove to East Orange with a plan to commit random robberies. In East Orange, they spied Shanfidine Sutton and shot him as they approached to rob him. Defendant and his conspirators left their victim to die from his wounds. A short time later, they stopped near West Side High School in Newark. Defendant saw fifteen-year-old A.B. wearing a leather jacket and targeted the high school student as the next robbery victim. When the young man resisted their effort to steal his jacket, he was shot in the chest. He also died from his wounds.
Later that day, police discovered the stolen vehicle abandoned in Newark. A joint force comprised of officers from the Essex County Prosecutor's Office, the Newark Police Department, and the East Orange Police Department assembled to investigate the case. The primary lead was a cellular telephone belonging to the Jeep's owner that was missing from the stolen vehicle when recovered and was presumed to have been taken by one of the perpetrators. With the assistance of the United States Marshals Service, which obtained a communications data warrant for records of the stolen cellular telephone, the police investigators learned that the telephone had been used with some frequency in the hours after the homicides, including seven calls made to a particular apartment located in Newark (the apartment).*fn3 The first call to the apartment was placed on November 13, 2003, at 10:42 p.m. Three calls were made on the morning of November 14, 2003, and three calls were also made to the apartment in the early morning of November 15, 2003. A call to the apartment at 1:01 a.m. on November 15, 2003, was the last known use of the phone.
At approximately 11:30 a.m., eleven hours after the last known call from the cell phone was made, six plain-clothed members of the joint police team and two uniformed officers headed to the apartment to further the homicide investigation. The officers, admittedly aware that they lacked probable cause to search the premises, did not attempt to obtain a warrant. Nor did the officers endeavor to identify to whom the apartment belonged, or who might reside within it. Instead, they knocked on the apartment door in the hope that someone would answer and allow them inside. The two uniformed officers remained outside the apartment building to guard the perimeter.
Jayaad Brown, an overnight guest at the apartment, heard the knock on the door and responded. At the suppression hearing, one officer testified that when Brown opened the apartment door, the officers identified themselves, asked "can we come in," and Brown opened the door wider to facilitate their entry. Brown's testimony at the suppression hearing differed substantially. He said that when he opened the door to the apartment in response to the knock, he was confronted by six unidentified men who had guns drawn and pointed at him. He denied inviting the officers inside, and said that the officers immediately restrained him and placed him on the ground.
Notwithstanding the divergence over whether the officers entered the apartment based on Brown's invitation and consent, the testifying officer conceded that neither Brown's demeanor nor his behavior was threatening and that officers did not perceive anything suspicious occurring in the apartment. Nevertheless, once inside the apartment, the police team immediately dispersed throughout the residence for purposes of "secur[ing] any other individuals that may have been in that apartment" because of the suspicion that the occupants might be "implicated or connected to the homicide[s]." Thus, within moments of entering the apartment, the investigative force fanned out. Two officers remained in the entry area to secure Brown, while two others went to the apartment's rear bedroom, where they found Shawn Upshaw seated on a bed with a clear plastic bag containing suspected crack cocaine on a dresser nearby. The remaining two officers went to a middle bedroom, where they discovered defendant and Asia Coleman lying together in a bunk bed.
As a result of the narcotics discovered in the rear bedroom, all individuals in the apartment were placed under arrest. In the process of taking the occupants into custody, the officers discovered the stolen cellular device sought in connection with the homicides in the middle bedroom near where defendant and Asia Coleman were found. Following his arrest, defendant, who was the only apartment occupant connected to the homicides, provided a full statement that implicated the three ...