Home Entries
December 4, 2020 - Posted by Ed Esposito
Many times, officers are confronted with a situation where they are at the doorstep of a person’s home and they need decide if they can lawfully enter. However, the decision to enter – or not to enter – is one that must be made considering many different cases involving home entries that have been decided by our courts. While our courts are sure to issue new rulings that will refine, modify and, in some instances, set forth new case law on home entries, I will summarize the most common case law referenced on this topic.
As a basic fundamental principle, our Constitution clearly provides protections to individuals from unreasonable government invasion. With regard to private homes, the expectation of privacy is so important and society's acceptance of it so apparent that warrantless entries are viewed as being unreasonable unless the entry falls into one of the recognized exceptions to warrant requirement.
As a starting point, in Payton v. New York, 445 U.S. 573 (1980), the United States Supreme Court held that “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” The same principles apply to a home entry when an officer is in possession of a search warrant issued upon a finding of probable cause. Of course, the location entered under the authority of a search warrant must be listed in the warrant to satisfy the “particularity requirement.” With respect to multi-family homes and apartment buildings, the search warrant has to describe the specific apartment or unit within to satisfy the “particularity requirement.”
Generally, unless a “no-knock” warrant is issued, prior to entry under the authority of a warrant, an officer must knock and announce their presence, authority and purpose, and demand entry. During daytime warrant executions, our courts have ruled that 15 to 20 seconds is a “reasonable” time under the Fourth Amendment to wait between the initial “knock-and-announce” and the forced entry. According to State v. Robinson, 200 N.J. 1 (2009), “[t]here are common factors to be applied in determining the reasonableness of the delay between knocking and announcing and a forcible entry. They include, but need not be limited to: a suspect's violent criminal history, an informant's tip that weapons will be present, the risks to officers' lives and safety, the size or layout of defendant's property, whether persons other than defendant reside there, whether others involved in the crime are expected to be present, and the time of day[.]” Robinson at 17 (internal citations omitted).
The United States Supreme Court addressed the issue of when officers do not “knock-and-announce” during a warrant execution when a judge had originally refused to issue a “no-knock” warrant. In Richards v. Wisconsin, 520 U.S. 385 (1997), the court stated that a “decision not to authorize a no-knock entry should not be interpreted to remove the officers' authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.” In other words, the doorstep events trump the judge for this limited purpose. According to the Court, “[i]n order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards at 1421-22.
When officers are waiting for a search warrant to be issued, the must rely on the New Jersey Supreme Court ruling in Brown v. State, 230 N.J. 84 (2017), which generally requires officers to “get a warrant and, if reasonably necessary, [they] may secure the [location] for a reasonable period of time from the outside." In Brown v. State, the Court as stated that “New Jersey recognizes the exigency exception to the warrant requirement. In a case of true exigency and probable cause, the police can enter a dwelling.”
Officers also provide a “community caretaking” function and have an obligation to respond to and investigate emergencies. However, such entries must be based on the officer having “an objectively reasonable basis to believe that an emergency requires that [they] provide immediate assistance to protect or preserve life, or to prevent serious injury,” and that there is a “reasonable nexus between the emergency and the area or places to be searched.” Quoting State v. Edmonds 211 N.J. 117 (2012).
Finally, when officers ask to enter a home, they are not required to advise an occupant of a premises of the “right to refuse” the officer’s request to enter. This is limited to the entry itself and does not extend to a consent search requested by an officer once inside. Lawful consent searches require that a person’s consent be “unequivocal and specific” and “freely and intelligently” given. We often refer to this as being “voluntary, knowing and intelligent,” and that includes a person knowing they have the right to refuse.
Many times, officers are confronted with a situation where they are at the doorstep of a person’s home and they need decide if they can lawfully enter. However, the decision to enter – or not to enter – is one that must be made considering many different cases involving home entries that have been decided by our courts. While our courts are sure to issue new rulings that will refine, modify and, in some instances, set forth new case law on home entries, I will summarize the most common case law referenced on this topic.
As a basic fundamental principle, our Constitution clearly provides protections to individuals from unreasonable government invasion. With regard to private homes, the expectation of privacy is so important and society's acceptance of it so apparent that warrantless entries are viewed as being unreasonable unless the entry falls into one of the recognized exceptions to warrant requirement.
As a starting point, in Payton v. New York, 445 U.S. 573 (1980), the United States Supreme Court held that “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” The same principles apply to a home entry when an officer is in possession of a search warrant issued upon a finding of probable cause. Of course, the location entered under the authority of a search warrant must be listed in the warrant to satisfy the “particularity requirement.” With respect to multi-family homes and apartment buildings, the search warrant has to describe the specific apartment or unit within to satisfy the “particularity requirement.”
Generally, unless a “no-knock” warrant is issued, prior to entry under the authority of a warrant, an officer must knock and announce their presence, authority and purpose, and demand entry. During daytime warrant executions, our courts have ruled that 15 to 20 seconds is a “reasonable” time under the Fourth Amendment to wait between the initial “knock-and-announce” and the forced entry. According to State v. Robinson, 200 N.J. 1 (2009), “[t]here are common factors to be applied in determining the reasonableness of the delay between knocking and announcing and a forcible entry. They include, but need not be limited to: a suspect's violent criminal history, an informant's tip that weapons will be present, the risks to officers' lives and safety, the size or layout of defendant's property, whether persons other than defendant reside there, whether others involved in the crime are expected to be present, and the time of day[.]” Robinson at 17 (internal citations omitted).
The United States Supreme Court addressed the issue of when officers do not “knock-and-announce” during a warrant execution when a judge had originally refused to issue a “no-knock” warrant. In Richards v. Wisconsin, 520 U.S. 385 (1997), the court stated that a “decision not to authorize a no-knock entry should not be interpreted to remove the officers' authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.” In other words, the doorstep events trump the judge for this limited purpose. According to the Court, “[i]n order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards at 1421-22.
When officers are waiting for a search warrant to be issued, the must rely on the New Jersey Supreme Court ruling in Brown v. State, 230 N.J. 84 (2017), which generally requires officers to “get a warrant and, if reasonably necessary, [they] may secure the [location] for a reasonable period of time from the outside." In Brown v. State, the Court as stated that “New Jersey recognizes the exigency exception to the warrant requirement. In a case of true exigency and probable cause, the police can enter a dwelling.”
Officers also provide a “community caretaking” function and have an obligation to respond to and investigate emergencies. However, such entries must be based on the officer having “an objectively reasonable basis to believe that an emergency requires that [they] provide immediate assistance to protect or preserve life, or to prevent serious injury,” and that there is a “reasonable nexus between the emergency and the area or places to be searched.” Quoting State v. Edmonds 211 N.J. 117 (2012).
Finally, when officers ask to enter a home, they are not required to advise an occupant of a premises of the “right to refuse” the officer’s request to enter. This is limited to the entry itself and does not extend to a consent search requested by an officer once inside. Lawful consent searches require that a person’s consent be “unequivocal and specific” and “freely and intelligently” given. We often refer to this as being “voluntary, knowing and intelligent,” and that includes a person knowing they have the right to refuse.