Part II Exceptions to the Warrant Requirement:
A basic principle of Fourth Amendment law is that "searches and seizure inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 5861980). The State bears the burden of proving that a warrantless search falls within one of the few, narrowly circumscribed exceptions to the warrant requirement. State v. Patino, 83 N.J. 1, 7 (1980). Of course, if police have entered your home without permission without a warrant resulting in criminal charges, you should contact an attorney immediately.
One such exception is the "protective sweep." In Maryland v. Buie, 494 U.S. 325 (1990), the Unites States Supreme Court determined the circumstances under which the police may perform a warrantless protective sweep of a defendant's premises incident to an arrest in order to ascertain the presence of any dangerous third parties. The Court held that the Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Id. at 327, 334, 337. Such a protective sweep is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. Id. at 335. The sweep is to last no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Id. at 336. Thus an officer's search for contraband or other evidence incident to an arrest does not constitute a protective sweep, and therefore cannot be based upon merely a reasonable suspicion.
New Jersey also has addressed protective sweeps. In State v. Henry, 133 N.J. 104, 118 (1993), the Court held that upon arresting an individual, "[t]he police may also 'fan out' and conduct a protective sweep of the area if they have reason to believe that they may be in danger from other parties on the premises." In State v. Doyle, 42 N.J. 334 (1964), the New Jersey Supreme Court found that the key to the propriety of a search is when the defendant was arrested. Police may not search in order to arrest, and a search to uncover evidence upon which to arrest is not made lawful because the desired evidence is obtained. Id. at 342. Absent a valid search warrant, the police must actually perform a valid arrest at same time that they performed the search that police justify as incident to an arrest. Id. at 342-43.
It is important to note that the scope of the sweep is a crucial factor. In Chimel v. California, 395 U.S. 752 (1969), the Court held that in the absence of a search warrant, the justifiable search incident to an in-home arrest could not extend beyond the arrestee's person and the area from within which he might have obtained a weapon. A search of a person or things within his immediate control or of the place of arrest to the extent that it is within his immediate possession or control is considered incidental to the arrest. Doyle, supra, 42 N.J. at 344. If police fish around beyond the area where a person might be able to reach, for example, evidence they find is not permissible in Court. Police then arguably must be able to convince the court that the evidence of danger was in reach. The experience of a police search and seizure at the home can be overwhelming, which is why these facts are best examined by a skilled attorney in order to determine the best defense strategy.
