The New Jersey Supreme Court recently had the opportunity to review two cases concerning the protective sweep of a home that occurred when an arrest was made outside the home. As a brief reminder, protective sweeps are quick and limited to an area that could harbor an individual posing a danger. Remember, the central privacy interests of a person’s home are protected by our constitutions (U.S. and N.J.). As such, the warrantless search of a home is permissible only if it occurs under one of the few specifically established and well-delineated exceptions to the warrant requirement. One such exception is the protective sweep doctrine.
Past court decisions recognized that an in-home arrest puts the officer at the disadvantage of being on his adversary’s turf and in possible jeopardy of an ambush in a confined setting of unknown configuration. Under the protective sweep doctrine, officers may conduct a quick and limited search for an individual posing a danger to those on the scene of an arrest. This can be done automatically in the room of an in-home arrest and may include the spaces immediately adjoining the room of arrest. Any protective sweeps beyond that must be based on a reasonable and articulable suspicion to believe that the area to be swept harbors an individual posing a danger. It is also important to be reminded that protective sweeps are not allowed to be used to locate contraband or evidence.
In the New Jersey Supreme Court’s recent decisions in State v. Christopher Radel (A-44-20) and State v. Keith Terres (A-45-20), the court had an opportunity to examine two different circumstances and determine if it was constitutional for the police to make a warrantless home entry and conduct a protective sweep once inside. Here, the court balanced two fundamental values: a citizen’s privacy right in a home and the significant state interest in officer safety. Since the entry into a home without a warrant is presumptively unreasonable, the state bears the burden of proving the necessity of entering the home to conduct a protective sweep. Going forward, officers making an arrest just outside must have a reasonable and articulable suspicion of a safety threat necessitating a protective sweep of the residence, and this will depend on the facts known to the officers at the time.
Under the new framework, courts will be required to evaluate the totality of the circumstances to determine if there is an individualized, rather than generalized, suspicion that led to the entry and subsequent protective sweep. Remember, our courts have previously held that entry into the home and a protective sweep cannot be based on a self-created exigency by the police. According to this recent decision, factors that may be considered in determining whether a protective sweep is justified when an arrest is made outside the home are:
- 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;
- the imminence of any potential threat;
- the proximity of the arrest to the home;
- whether the suspect was secured or resisted arrest and prolonged the police presence at the scene; and
- any other relevant circumstances.
The following is a brief synopsis of the facts leading up to the home entry and protective sweeps that were conducted in the cases reviewed by the court.
In State v. Radel, officers executed a controlled arrest in the driveway of a home, a distance from the home’s entrance, while there were officers observing the front and rear doors of the home. According to the court, the officers did not face a distinct threat. The court also decided that the officers had no specific information that another person was in the house and had no information that they could reasonably infer that someone inside posed an imminent danger. The court concluded that nothing unforeseeable had occurred at the scene and that no danger arose which would justify a home entry and subsequent protective sweep without a warrant.
In State v. Terres, the officers faced unexpected and fast-evolving circumstances that signaled danger and the need for prompt action to safeguard their lives. According to the court, the officers received a warning to be careful and that another male was present, a clear signal of a potential threat. In addition, officers had been told that there were loose bullets and that shell casings were observed in the location where the second suspect had fled when the first suspect was arrested feet from the open front door. The court determined that this situation was fluid and not stabilized as officers attempted to retrieve a hypodermic needle when the suspect fled. The court ruled that those specific and articulable facts provided a reasonable basis for entry into the home and a subsequent protective sweep inside the home based on a very real and potential danger.