New Jersey Criminal Lawyer Blog

Part III: More Exceptions
Another exception is the "community caretaking" exception, which means what the name implies, that the search is performed without a warrant in the interests of the safety of the people or citizenry. In State v. Hill, 115 N.J. 169, 178 (1989), the Court noted that the community caretaking exception has been applied mainly to the context of an impounded vehicle. This exception has been extended under the "Special Needs" rule. When the State can show that the purpose of a warrantless search was to protect the property or safety of its citizens, the courts assess the lawfulness of police conduct on the flexible standard of reasonableness of the police action under the particular circumstances of the case. See State v. Diloreto, 180 N.J. 264, 275-76 (2004). To the average person, this wouldn't instill a whole lot of confidence. But consider, for examples of what reasonableness means, that the person in the presence of police may have recently been involved in a major crime, Cf. State v. Faretra, 330 N.J.Super. 527 (App. Div.), certif. den. 165 N.J. 530 (2000), or there a weapon is at the scene, Cf. State v. Navarro, 310 N.J.Super. 104 (App. Div.), certif. den. 156 N.J. 382 (1998) and State v. Padilla, 321 N.J.Super. 96 (App. Div. 1999), aff'd 163 N.J. 3 (2000).

Further, "exigent circumstances" is a narrowly construed exception, in the medical sense. The medical emergency exigency test is met upon "a prudent and reasonably based belief that there is a potential medical emergency of unknown dimension." State v. Castro, 238 N.J.Super. 482, 489 (App. Div. 1990). In State v. Scott, 231 N.J.Super. 258, 275 (App. Div. 1989)(Ashbey, J., dissenting), rev'd on dissent below 118 N.J. 406 (1990), the court articulated the three elements to the emergency-aid exception: (1) the existence of an emergency as viewed objectively; (2) a search not motivated by a desire to find evidence; and (3) a nexus between the search and the emergency were satisfied by the facts of the case. The circumstances should present "sufficient exigency created by the information imparted ... to justify immediate action by [the officer], as distinct from retreating and initiating warrant procedures." State v. Castro, supra, 238 N.J.Super. at 487. That should make the average person feel a little better.

These principals are important to know if a police officer knocks on your door because it is the only way you can protect your rights. After the fact, an attorney can help sort through the details to determine the best criminal defense.

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.

Part I
The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States Dist. Court, 407 U.S. 297, 3131972). Accordingly, it is well established that "searches and seizures inside a home without a warrant are presumptively unreasonable," Payton v. New York, 445 U.S. 573, 586 (1980), and so "prohibited by the Fourth Amendment, absent probable cause and exigent circumstances." Welsh v. Wisconsin, 466 U.S. 740, 749 (1984). This is a constitutional right that should be protected by your attorney in any criminal defense case.

As noted in Welsh: Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate. 466 U.S. at 750.

In other words, the Court assumes that entry without a warrant is barred, and the burden is on the state to prove that the police had an urgency reason that prevented the ability to first obtain a warrant. If they cannot, any type of evidence obtained as a result of that entry will not be permitted to be relied upon at trial (fruit of the poisonous tree).

For example, in State v. Holland, 328 N.J.Super. 1 (App. Div. 2000), the officers conducted a warrantless search of a residence based upon the smell of burning marijuana emanating from the home. The average person would assume that the police could use that scent to generate probable cause. Probable cause should justify a warrant, not warrantless entry or entry without consent. If the suspect voluntarily permitted the police in, or if the suspect voluntarily left the home, that is a different legal situation. In this instance, relying upon several rulings of the United States Supreme Court which stress the sanctity of a person's home, the Holland Court found that there was probable cause to believe someone possessed marijuana, which is a disorderly persons offense, but the minor offense did not generate the exigent circumstances which would justify a warrantless search or arrest in the suspect's home. 328 N.J.Super. at 7. In that type of situation, anything the police found or were told when they entered the home without consent that would incriminate a suspect is barred.

Police found weapons, cash, and drugs in the Asbury Park home of a local dentist.  Dr. Raymond Pacholec had more than 40 marijuana plants, two pounds of cultivated marijuana, $10,000 cash, handguns and rifles located in his home.  He choose to protect these items with a burglar alarm.  Unfortunately for him, the alarm was somehow tripped and no one was home to answer the phone calls.  Thus, local police went to the residence to check for signs of a break-in.  While there the police detected a strong odor of marijuana, they searched the premises to discover the other contraband.

New Jersey Criminal Lawyer Blog's Take: One might be asking how the police were able to get into house with no one home.  The answer is probable cause.  The police were able to obtain probable cause that illegal activity might be found within the home when they detected the strong odor of marijuana.  Dr. Pacolec's defense attorney will surely make a motion to have the search invalidated, but it will be a tough motion to prevail.  It is true that the 4th Amendment protects us from unlawful search and seizures, but there are many exceptions.  If a person can smell marijuana, or even look into a window and see contraband, either event gives rise to probable cause.

Dentist charged with marijuana in home (March 17, 2009 - Asbury Park Press)