Date: 11-23-2016

Case Style:

Case Number: (A-2-15) (075958)

Judge: Walter F. Timpone

Court: SUPREME COURT OF NEW JERSEY

Plaintiff's Attorney:

Sara M. Quigley, Deputy Attorney General

Defendant's Attorney:

Susan Brody, Deputy Public Defender

Description: Certain core principles underpin our search and seizure
jurisprudence. Individual privacy rights, especially in the
home, are among the most protected. As Justice Robert L.
Clifford wrote for the Court, “we are not dealing with a mere
formality but with an underlying great constitutional principle
embraced by free men and expressed in substantially identical
language in both our federal and state constitutions.” State v.
Fariello, 71 N.J. 552, 559 (1976) (citation omitted). In the
present case, we must balance those important privacy interests
with the practical and safety concerns of law enforcement.
Specifically, we focus on the guidelines surrounding law
enforcement’s use of a warrantless “protective sweep” when
investigating allegations of criminal activity.
When a woman called 911 to report that her boyfriend had
struck her, officers were dispatched to the address she
provided. While two officers stayed with the woman, who was in
a car in a nearby parking lot, two other officers knocked on the
door of defendant Charles Bryant, Jr.’s home. When defendant
answered, an officer instructed him to take a seat on the couch.
As defendant followed this instruction, the officers entered.
One conducted a protective sweep of the apartment while the
other questioned defendant. All of this was done without
knowing the name of the woman’s alleged attacker or defendant’s


3

name, and without any indication that there were either other
people or any weapons present in the apartment.
Under such circumstances, we find that the law enforcement
officers did not adhere to the rigorous standards for proceeding
without a warrant under the protective sweep doctrine.
Accordingly, we hold that the evidence obtained as a result of
their impermissible search must be suppressed. We therefore
reverse the judgment of the Appellate Division and remand the
matter to the trial court for further proceedings consistent
with this opinion.
I.
We glean the following facts from the testimony given by
witnesses at defendant’s suppression hearing. On January 27,
2013, just before 3 a.m., officers from the Plainsboro Police
Department were dispatched to respond to a report of domestic
violence. A woman, via a 911 call, frantically reported that
she had been assaulted and that she was outside in her vehicle;
she did not give her name or her attacker’s, but did supply an
address.
Patrolmen Schroeck and McCall were in the first two cars to
arrive at the scene, and they proceeded directly to the
apartment. Corporal Newbon and Patrolman Lapham, who were in
the third vehicle to arrive, encountered a woman in a car in the
parking lot. When Newbon approached her to ask what was going


4

on, he discovered that she was the caller. He also noted that
she was intoxicated, crying, and excited. He had trouble
obtaining information from the woman, who was incoherent and had
scratches and marks on her face. Eventually, the woman told
Newbon that she had been attacked by Charlie Bryant, her
boyfriend. She did not indicate the number of people in the
apartment or whether there were any weapons inside. Newbon then
left the woman with Lapham and went to the apartment to
determine what was happening there.
When Newbon arrived at the apartment, he found that
Schroeck and McCall had already entered. McCall was with
defendant, who was seated on the couch, and Schroeck called to
Newbon from the back bedroom. Schroeck testified that he and
McCall, who had been told only the address of the apartment,
knocked on the door when they arrived. According to Schroeck,
defendant answered after about a minute. McCall then instructed
defendant to sit on the couch, which defendant did, and both
officers entered the apartment. While McCall questioned
defendant, Schroeck conducted a protective sweep of the
apartment, searching the kitchen, bathroom, bedroom, and bedroom
closet –- all locations that potentially could harbor another
person.
Schroeck, whose testimony the trial court found forthright,
stated that it is his experience to conduct protective sweeps


5

and that he did so for officer safety, because it was not known
whether there were any people or weapons in the apartment.
Schroeck added that he was particularly interested in ensuring
that no one was hiding in the apartment because domestic
disturbances are generally very emotional.
While searching the bedroom, Schroeck detected an
“overwhelming odor” of marijuana coming from the closet.
Peering into the closet, Schroeck saw a Ziploc bag with green
vegetation that he believed to be marijuana protruding through a
hole in a shoe box on a shelf just above eye-level in the
closet. When Newbon heard Schroeck call to him and entered the
bedroom, he also detected the odor of marijuana. Newbon ordered
the marijuana seized and had defendant arrested and removed from
the apartment.
After defendant was removed, officers locked down the
apartment while awaiting a search warrant. The warrant was
issued, and the subsequent search yielded multiple items of
contraband including a Tec-9 9mm assault weapon, approximately
fifty-five grams of marijuana, and marijuana packaging
materials.
Defendant was indicted on March 6, 2013, and charged with
fourth-degree possession of a controlled dangerous substance
(“CDS”), N.J.S.A. 2C:35-10(a)(3); third-degree possession with
intent to distribute, N.J.S.A. 2C:25-5(a)(1) and (b)(11);


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second-degree unlawful possession of an assault firearm,
N.J.S.A. 2C:39-5(f); and second-degree possession of a firearm,
N.J.S.A. 2C:39-4.1. On the same date, defendant was separately
indicted on a charge of second-degree certain persons not to
possess a firearm, N.J.S.A. 2C:39-7(b).
Defendant moved to suppress all of the evidence seized from
the apartment as fruit of an illegal search. After a
suppression hearing, the trial court denied defendant’s motion.
The trial court found that the officers were lawfully present in
the apartment because they were looking for the suspect in a
domestic violence case where the victim presented physical signs
of injury. Moreover, the trial court reasoned that, because the
officers did not know if the suspect was the man who answered
the door or was somewhere else inside the apartment, Schroeck
had a reasonable and articulable suspicion that the area to be
swept could be harboring an individual posing danger. With
those findings, the trial court held that the protective sweep
doctrine obviated the need for a warrant. The trial court also
held that the marijuana discovered during the protective sweep
was properly seized under the plain view doctrine.
Defendant appealed the denial of the motion to suppress,
arguing that the search was illegal. In an unpublished opinion,
an Appellate Division panel affirmed the denial of the motion to
suppress, on substantially the same grounds.


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We granted defendant’s petition for certification, limited
to the issue of whether the protective sweep of defendant’s
residence was lawful. State v. Bryant, 223 N.J. 162 (2015). We
also granted the American Civil Liberties Union of New Jersey
(“ACLU”) leave to appear as amicus curiae.
II.
Defendant makes two primary points: first, that entry of
the officers into the apartment was unjustified because they did
not have defendant’s consent to enter; and second, that the
protective sweep was pretextual in that the officers lacked a
reasonable and articulable suspicion that the area to be swept
could be harboring an individual posing danger.
The State’s justification for its exception to the warrant
requirement essentially relies on two grounds: (1) the police
were lawfully present in defendant’s apartment because in mid
winter it was unreasonable to have any conversation with
defendant outside; and (2) the police had good cause to perform
a protective sweep in this matter because of the danger often
inherent in domestic violence calls coupled with the officers’
incomplete knowledge of any potential danger awaiting them. In
combination, the State contends, those factors created a
reasonable and articulable suspicion that the apartment might
harbor a hidden, dangerous person.


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The ACLU, as amicus curiae, disputes the State’s rationale.
The ACLU asserts the officers were not lawfully present in
defendant’s apartment, on the grounds that the officers had no
consent to enter the apartment and were not facing exigent
circumstances. The ACLU adds that mere uncertainty is
insufficient to establish a reasonable and articulable suspicion
that the apartment was harboring a hidden, dangerous person.
III.
We review the relevant case law relating to search and
seizure. The nearly identical language of the Fourth Amendment
of the United States Constitution and Article I, Paragraph 7 of
the New Jersey Constitution guarantees “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV; N.J. Const. art. I, ¶ 7. On numerous
occasions, we have considered “New Jersey’s unique interests and
values” and in doing so, have “construed Article I, Paragraph 7
[of the New Jersey Constitution] to afford our citizens greater
protection against unreasonable searches and seizures than
accorded under the Federal Constitution.” State v. Johnson, 193
N.J. 528, 541 (2008) (citing State v. Eckel, 185 N.J. 523, 537
38 (2006)). Indeed, we “accord the highest degree of protection
to privacy interests within the home,” Johnson, supra, 193 N.J.
at 532, because “[t]he sanctity of one’s home is among our most


9

cherished rights,” State v. Frankel, 179 N.J. 586, 611, cert.
denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004).
Toward that end, “[o]ur constitutional jurisprudence
expresses a clear preference for government officials to obtain
a warrant issued by a neutral and detached judicial officer
before executing a search.” Edmonds, supra, 211 N.J. at 129
(citing Frankel, supra, 179 N.J. at 597-98). “[A]ll warrantless
searches or seizures are ‘presumptively unreasonable.’”
Johnson, supra, 193 N.J. at 552 (quoting State v. Elders, 192
N.J. 224, 246 (2007)). As a result, “when the police act
without a warrant, the State bears the burden of proving by a
preponderance of the evidence not only that the search or
seizure was premised on probable cause, but also that it ‘f[ell]
within one of the few well-delineated exceptions to the warrant
requirement.’” Ibid. (alteration in original) (quoting State v.
Pineiro, 181 N.J. 13, 19-20 (2004)).
One such exception is the protective sweep doctrine. State
v. Davila, 203 N.J. 97, 125 (2010). The Supreme Court of the
United States first recognized this exception in the context of
an arrest in Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct.
1093, 1094, 108 L. Ed. 2d 276, 281 (1990). There, the Court
found that protective sweeps are appropriate when necessary for
officer safety reasons so long as the sweep is “narrowly


10

confined to a cursory visual inspection of those places in which
a person might be hiding.” Ibid.
Twenty years later, this Court extended the protective
sweep doctrine to non-arrest settings. Davila, supra, 203 N.J.
at 125–26. Recognizing the practical concerns and danger that
law enforcement officers are faced with, we held in Davila that,
when relying on the protective sweep doctrine to obviate the
need for a warrant, the State has the burden of proving the
following: “(1) law enforcement officers are lawfully within the
private premises for a legitimate purpose, which may include
consent to enter; and (2) the officers on the scene have a
reasonable [and] articulable suspicion that the area to be swept
harbors an individual posing a danger.” Id. at 125. The test
is conjunctive; the failure of either element is fatal to the
application of the exception. See ibid.
In the context of the reasonable and articulable suspicion
prong, we have held that courts will look at the totality of the
circumstances to determine if there is an “individualized,
rather than generalized, suspicion.” Id. at 129. There is no
mathematical formula to determine what amount of suspicion is
reasonable. Pineiro, supra, 181 N.J. at 27. Visual or auditory
cues are certainly sufficient to establish that another person
may be present. Davila, supra, 203 N.J. at 128. In the absence
of visual or auditory signs, courts may consider factors such as


11

preexisting police knowledge that a specific individual presents
a danger or has a propensity for violence, some sort of surprise
while the police are on scene, overly nervous conduct, and
inconsistent or dishonest responses. Id. at 129 (citations
omitted). Those signs must lead an officer to believe not only
that another individual is present, but also that the other
individual presents a danger to officer safety. Ibid.
Reasonable and articulable suspicion is critical and, therefore,
“[a] seizure cannot . . . be justified merely by a police
officer’s subjective hunch.” Id. at 128 (quoting Pineiro,
supra, 181 N.J. at 27).
When the seizure of evidence is the result of the State’s
unconstitutional action, the principal remedy for violation of
the constitutional right to be free from unreasonable searches
and seizures is exclusion of the evidence seized. State v.
Burris, 145 N.J. 509, 520 (1996). The exclusionary rule is not
a “remedy,” in the classic sense of the term; rather, its
purpose is to deter future illegal conduct by the State. State
v. Novembrino, 105 N.J. 95, 137–38 (1987) (citing United States
v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 619, 38 L. Ed. 2d
561, 571 (1974)). In order to achieve the full deterrent effect
of the exclusionary rule, evidence that is seized in a search
incident to the original unlawful search is also excluded under


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the fruit of the poisonous tree doctrine. State v. Gibson, 218
N.J. 277, 298 (2014).
IV.
In applying these principles to analyze whether the trial
court erred in the present case by invoking the protective sweep
exception to the search warrant requirement, we “uphold the
factual findings underlying the trial court’s decision so long
as those findings are supported by sufficient credible evidence
in the record.” State v. Brown, 216 N.J. 508, 538 (2014)
(quoting Elders, supra, 192 N.J. at 243). However, we do “not
defer . . . to a trial or appellate court’s interpretation of
the law,” which we review de novo. State v. Vargas, 213 N.J.
301, 327 (2013).
Here, there is sufficient evidence in the record to support
the trial court’s factual finding that Patrolmen Schroeck and
McCall lacked information when approaching the apartment,
including the name or description of the assailant, the number
of parties involved, or whether there were weapons involved.
Although we accept these findings as true, we cannot conclude
from these findings that a protective sweep was justified.
Rather, we find that Schroeck’s suspicion, at most, was a
subjective hunch. See Davila, supra, 203 N.J. at 128.
Schroeck did not testify that any visual or auditory signs
existed that led him to believe there was another person in the


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apartment. Cf. United States v. Taylor, 248 F.3d 506, 514 (6th
Cir.) (holding that shuffling noises heard before officers
entered apartment were sufficient to establish reasonable and
articulable suspicion), cert. denied, 534 U.S. 981, 122 S. Ct.
414, 151 L. Ed. 2d 315 (2001). Moreover, there is no evidence
that Schroeck knew defendant. Cf. United States v. Gould, 364
F.3d 578, 591-92 (5th Cir.) (holding that an officer’s prior
knowledge of the suspect contributed to the totality-of-the
circumstances analysis), cert. denied, 543 U.S. 955, 125 S. Ct.
437, 160 L. Ed. 2d 317 (2004). Nor is there any evidence that
the officers were suddenly surprised once inside the apartment,
that defendant appeared overly nervous, or that his behavior
suggested the presence of another person. Cf. United States v.
Caraballo, 595 F.3d 1214, 1225 (11th Cir. 2010) (holding that
overly nervous conduct, combined with inconsistent or dishonest
answers, could lead to reasonable and articulable suspicion).
In fact, Schroeck conducted the sweep without waiting to hear
defendant’s answer to McCall’s questions. There was therefore
no opportunity for Schroeck to determine whether any of
defendant’s statements were inconsistent or dishonest.
Instead of relying on any situation-specific indication
that another person might be present, Schroeck testified that it
was “generally [his] experience . . . to conduct a protective
sweep to make sure there are no surprises.” Additionally,


14

Schroeck testified that it was usually “possible” that more than
two people were involved in domestic disturbances. Those
statements by Schroeck amount to nothing more than a hunch, not
a reasonable and articulable suspicion.
We thus conclude that there is no record of a reasonable
and articulable suspicion propelling the protective sweep in
this case, without which the authority for the protective sweep
dissolves. As such, the evidence seized as a result of the
warrantless search should have been suppressed. We need not
reach the question of consent to enter except to say on these
facts, silence does not equate to consent to enter.
V.
In reaching this conclusion, we are mindful that the
privacy interests discussed must be viewed in light of the daily
difficulties facing law enforcement officers. We recognize that
officers are faced with the difficult task of running toward
danger, often with little to no information about the danger
they face.
This is especially true in the context of domestic violence
calls -- some of the most dangerous calls officers will face.
Family violence researchers report that “more police officers
die answering family disturbance calls . . . than die answering
any other single type of call.” Joel Garner & Elizabeth
Clemmer, Nat’l Inst. of Justice, U.S. Dep’t of Justice, Danger


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to Police in Domestic Disturbances -- A New Look, Research in
Brief 2-3 (Nov. 1986),
http://files.eric.ed.gov/fulltext/ED295090.pdf (citing one
report indicating twenty-two percent of all police fatalities
occur during response to domestic violence disputes).
Domestic violence is a serious problem in New Jersey. Our
Legislature addressed this problem by passage of the Prevention
of Domestic Violence Act (“PDVA”), N.J.S.A. 2C:25-17 to -35.
Recognizing the dangers posed by domestic violence calls, the
Legislature has mandated that officers receive training “on the
handling, investigation and response procedures concerning
reports of domestic violence.” N.J.S.A. 2C:25-20(a).
The PDVA also includes a mandatory arrest provision. See
N.J.S.A. 2C:25-21(a). However, that provision must always be
read and construed with deep respect for, and adherence to, the
constitutional underpinnings of our search and seizure
protections. See, e.g., State v. Younger, 305 N.J. Super. 250,
258 (App. Div. 1997) (underscoring that the PDVA is subject both
to the Fourth Amendment and “to the New Jersey constitutional
guarantee against unreasonable searches and seizures”). And, as
we have held in the past, hunches or lack of information are
insufficient to satisfy the need for reasonable and articulable
suspicion in countermanding the search warrant requirement and
defeating the right of New Jersey citizens to be secure in their


16

homes, free of unreasonable searches and seizures. Davila,
supra, 203 N.J. at 128.
In the present case, the officers might have obtained the
information they needed by asking defendant preliminary
questions, such as: “Were you just in an argument with your
girlfriend?” and “Is there anyone else here in the apartment?”
Had the officers asked those, or similar, questions and waited
for defendant’s response, their fears could have been allayed or
a reasonable and articulable suspicion formed. Patrolman
Schroeck’s failure to pose these basic questions, or wait for a
response to the other officer’s questions, reduced his actions
to, at best, nothing more than acting on a hunch.
Officers’ diligence in asking the correct questions and
assessing the response or the responder’s demeanor before
conducting a protective sweep of the home ensures the proper
balance between the rights of citizens to be secure in their
homes and the need for law enforcement to protect themselves in
these dangerous situations.
The officers here lacked reasonable and articulable
suspicion that another party was present, much less that another
party posed a danger to officer safety. Because there was no
evidence of reasonable and articulable suspicion, the State
failed to meet its burden of presenting evidence sufficient to


17

establish an exception to the warrant requirement. See Johnson,
supra, 193 N.J. at 552.
This failure fatally taints the “plain view” evidence
seized from the initial limited protective sweep search of
defendant’s apartment. Even if the marijuana was in plain view
-- a point on which we need not rule in this case -- it was seen
only in the course of an illegal protective sweep. The sweep’s
illegality infected both the basis for the follow-up search
warrant and the evidence seized under that warrant as “fruits of
the poisonous tree.” The snowball effect of the illegal
searches and seizures demands that all the evidence seized from
initial sweep to final search be excluded and suppressed.

Outcome: