Entering a Home Without a Warrant

The U.S. Supreme Court is wrestling with a case that could give police greater power to forcibly enter a home without a warrant.

The Constitution bars warrantless searches except in certain circumstances — for example, an emergency search to prevent the destruction of evidence. But on Wednesday, the question before the court was whether police, by themselves creating such exigent circumstances, are unconstitutionally evading the warrant requirement.

The case before the court began in 2005 when Lexington, Ky., police banged on the door of an apartment where they thought they smelled marijuana. After loudly identifying themselves, police heard movement inside, and fearing the destruction of evidence, they broke in. Inside they found Hollis Deshaun King smoking marijuana. Police also found marijuana and cocaine on the kitchen counter. King was convicted of drug trafficking and related offenses.

But the Kentucky Supreme Court reversed the conviction. The state court ruled that the drugs found in the apartment could not be used as evidence against King because police had no warrant for the search, and the only emergency circumstances were those created by the police themselves when they loudly alerted the suspect to their presence.

Prosecutors appealed to the U.S. Supreme Court, which heard arguments in the case Wednesday.

Kentucky Assistant Attorney General Joshua Farley told the justices that since the smell of marijuana gave police probable cause to believe a crime was occurring in the apartment, and since police heard movement inside after they knocked, they lawfully broke in to prevent the evidence from being destroyed.

Chief Justice John Roberts tested Farley's theory. "So, you have an apartment building where the police know from experience there is a lot of illegal activity, a lot of drugs." Can police every two weeks "walk through and knock on every door" and break in when they hear movement inside? "Is that all right?"

Farley responded that it would be all right as long as police had separate probable cause to believe a crime was occurring. In this case, he said, the probable cause was the smell of marijuana.

Justice Ruth Bader Ginsburg asked whether this meant that police could merely "sniff at every door," knock on those doors where they smelled marijuana, and break in once they heard a noise.

It "would be perfectly fine for the officers to do that," Farley responded.

Fourth Amendment Issue

But Ginsburg noted that the smell of marijuana would be enough to get a warrant. "We start out with a strong presumption that the Fourth Amendment requires a warrant," she observed. Why wouldn't the police just get a warrant, she asked, rather than knocking on the door and alerting the people inside?

Justice Antonin Scalia pointed out that if the suspects had quickly answered the door and simply refused to permit entry, the police would have been powerless to do more. "The police," he said, "were taking advantage of the stupidity of the criminals."

Justice Elena Kagan worried that allowing police to create exigent circumstances would be "essentially eviscerating the warrant requirement in ... the one place that the Fourth Amendment was most concerned about."

"[I]f there is one place where the warrant requirement has real force," she said, "it's in the home." Without a warrant, she suggested, "all the police really have to say is: 'We saw pot, we heard noise,' " and they would be able to break in.

Kentucky public defender Jamesa Drake, arguing on behalf of the defendant, urged the court to consider the consequences for all citizens if the warrant requirement is diluted.

"There is no difference between what happened in this case and how an innocent person would respond," she said, noting that police had banged on the door loudly at 10 p.m., and all they heard inside was movement — a noise that she seemed to suggest did not necessarily indicate the destruction of evidence.

But Drake seemed unable to persuade the justices that she had a workable rule to supplant the broad one suggested by prosecutors. And she struggled to draw a distinction between this case and what she saw as genuinely exigent circumstances that justify a warrantless search.

A decision in the case is expected by summer.

New Jersey Child Support

New Jersey Statute N.J.S.A 2A:17-56.23b (1) (a) provides that a judgment for child support entered and docketed with the Clerk of the Superior Court constitutes "a lien against the net proceeds of any settlement negotiated prior or subsequent to the filing of a lawsuit, civil judgment, civil arbitration award, inheritance or workers' compensation award." This lien has "priority over all other levies and garnishments...unless otherwise provided by the Superior Court, Chancery Division, Family Part.

The lien shall not have priority over levies to recover unpaid income taxes owed to the State. The lien shall stay the distribution of the net proceeds to the prevailing party or beneficiary until the child support judgment is satisfied." What this means is that the net proceeds of your personal injury settlement is subject to a lien that must be satisfied before you can recover the proceeds of the settlement. "Net proceeds" of the settlement is defined as "any amount of money, in excess of $2,000...after attorney fees, witness fees, court costs, fees for health care providers, payments to the Medicaid program..., reimbursement to the Division of Employment Security in the Department of Labor, the employer or employer's insurance carrier for temporary disability benefits that may have been paid pending the outcome of a workers' compensation claim..., reimbursement to an employer or the employer's workers' compensation insurance carrier..., and other costs related to the lawsuit, inheritance or settlement are deducted from the award, proceeds or estate..." Therefore, if the net proceeds are $2,000 or less, there is no lien and no need for a search. In addition, the Appellate Division has held that only the amount of the plaintiff's settlement after litigation costs which exceeds $2,000 is subject to the lien imposed by N.J.S.A. 2A:17-56.23b. Simpkins v. Saiani, 811 A. 2d 474, 356 N.J. Super. 26 (App. Div. 2002). Attorneys who represent injured parties in New Jersey are required by law to conduct a search before distributing any settlement proceeds to determine whether the settling party has any child support judgment again him or her.

N.J.S.A 2A:17-56.23b (1) (b) provides that before distributing any net proceeds of a settlement, judgment, inheritance or award to the prevailing party or beneficiary, "(1) the prevailing party or beneficiary shall provide the attorney, insurance company or agent responsible for the final distribution of such funds with a certification that includes the prevailing party's or beneficiary's full name, mailing address, date of birth and Social Security number; and (2) the attorney representing the prevailing party or beneficiary shall initiate a search of child support judgments, through a private judgment search company that maintains information on child support judgments, to determine if the prevailing party or beneficiary is a child support judgment debtor." If the child support search certification shows that the prevailing party or beneficiary is a child support judgment debtor, the attorney that initiated the search shall contact the Probation Division of the Superior Court to arrange for the satisfaction of the child support judgment. The attorney shall notify the prevailing party or beneficiary of the intent to satisfy the child support judgment prior to the disbursement of any funds to the prevailing party or beneficiary. Upon receipt of a warrant of satisfaction for the child support judgment, the attorney shall pay the balance of the settlement to the prevailing party or beneficiary. If the net proceeds are less than the amount of the child support judgment, the entire amount of the net proceeds shall be paid to the Probation Division as partial satisfaction of the judgment.

State v. Hand

Yesterday in State v Hand, approved for publication, the App Div affirmed the dismissal on double jeopardy grounds of a DWI that was downgraded after a plea to the accompanying indictable reckless endangerment charge (risk of widespread injury). The factual basis at the county was based on this def's 4-50 and driving on a playing field. The court affirmed the use of the "same evidence" test. The court indicted that had the factual basis not included the evidence of driving while intoxicated, the result in this case would not have been dismissal of the 4-50.

With more and more DWIs being sent to the county for 4th and 3rd degree Assault by Auto (which this case was not because there was no actual injury) and the new indictable 3-40 kicking in now, this issue will arise more often if county prosecutor's are not careful with how the accompanying DWI is disposed. The common method is to require a plea to the DWI and merge the offense with the indictable for sentencing.

State of NJ v. Mai

Argued Oct. 13, 2009

Decided May 6, 2010.

Background: Following a conditional guilty plea after denial of motion to suppress, defendant was convicted in the Superior Court, Law Division, Hudson County, of third-degree unlawful possession of a handgun. Defendant appealed. The Superior Court, Appellate Division, 2009 WL 276716, reversed and remanded. State petitioned for certification.

Holdings: The Supreme Court, Rivera-Soto, J., held that:

(1) police officer making traffic stop had authority to open van's passenger-side sliding door as part of ordering defendant, a passenger, to exit the vehicle;

(2) seizure of loaded gun from floor of van was proper under plain view doctrine;

(3) plain view discovery of gun on floor of van provided sufficient probable cause to arrest defendant; and

(4) loaded ammunition magazine and gun holster were properly seized as fruits of proper search incident to arrest.

Judgment of Appellate Division reversed; judgment of Law Division reinstated.

State of NJ v. Davila

Argued Feb. 2, 2010.

Decided July 14, 2010.

Background: Defendant was convicted on his guilty plea in the Superior Court, Law Division, Essex County, of two counts of felony murder and one count of conspiracy to commit robbery. Defendant appealed. The Superior Court, Appellate Division, 2009 WL 1010931, affirmed. Defendant petitioned for certification.

Holdings: The Supreme Court, LaVecchia, J., held that:

(1) trial court's conclusion that occupant consented to police officers' entry into apartment rested on a credibility determination for which there was adequate, substantial, and credible support in the record;

(2) as a matter of first impression, a protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest;

(3) a protective sweep may occur when law enforcement officers are lawfully within the private premises for a legitimate purpose and the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger; and

(4) remand was required.

Judgment of Appellate Division reversed; matter remanded.

Another Opinion

State v. Dunlap, 185 N.J. 543 (2006)

In addition, we reject the State's argument that “it would have been unduly burdensome and unreasonably restrictive to require the police to post a guard and repair to the courthouse for a warrant,” There were at least ten officers present on the evening in question and even assuming that some were needed for other duties in connection with defendant's arrest and the on-going investigation, the State did not establish that an insufficient number **1283 would have been left to guard the car. To say that the late hour made access to a judge difficult or unpracticable, is to ignore the procedures in place for emergent duty judges in every vicinage and the existence, since 1984, of the telephonic warrant procedure. R. 3:5-3(b). Indeed, it is not without significance that the investigators here had time to call the prosecutor's office at about 10:00 pm and obtain verbal authorization for the consensual recording of defendant's conversation with Tiaa.

One final note. Nothing in this opinion should be viewed as a retrenchment from the well-established principles governing the automobile exception to the warrant requirement. The standards remain the same: probable cause and exigent circumstances, each of which to be determined on a case-by-case basis. Here, the unique facts, particularly the presence of ten officers, fully justified the Appellate Division's conclusion that exigency was absent. Different facts, such as a roadside stop effectuated by only one or two officers, would likely have changed the calculus. Police safety and the preservation of evidence remain the preeminent determinants of exigency.

Appellate Opinion

State v. Cooke, 63 N.J. 657 (2000)

We emphasize that there is a constitutional preference for a warrant, issued by a neutral judicial officer, supported by probable cause. “The cautionary procedure of procuring a warrant ensures that there is a reasonable basis for the search and that the police intrusion will be reasonably confined in scope. The automobile exception applies only in cases in which probable cause and exigent circumstances are evident, making it impracticable for the police to obtain a warrant.