State Of N.J. v. Crosby

• Decision Date: 14 July 2010
• Citation: 203 N.J. 97,999 A.2d 1116
• Parties: STATE of New Jersey, Plaintiff-Respondent,v.Johnnie DAVILA aka Johnny Christopher aka Johnnie Crosby, Defendant-Appellant.
• Court: New Jersey Supreme Court

203 N.J. 97

999 A.2d 1116

STATE of New Jersey, Plaintiff-Respondent,v.Johnnie DAVILA aka Johnny Christopher aka Johnnie Crosby, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Feb. 2, 2010.

Decided July 14, 2010.

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Susan Brody, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General of New Jersey, attorney).

Justice LaVECCHIA delivered the opinion of the Court.

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.¹ 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.

I.

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.² 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).³ 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,...