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New Jersey Criminal Lawyer - Appellate Opinions
State v. Davila, 203 N.J.
97 (2010)
We hold that a
protective sweep of a home may only occur when (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 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 cursory, and (2) it is limited in
scope to locations in which an individual could be concealed. As
additional guidance we add the following. The search should be
strictly limited in duration to the time frame during which police
are lawfully within the premises. Moreover, when
a protective sweep is performed in a non-arrest setting, as when
police presence in the home is not due to the execution of an arrest
warrant, the legitimacy of the police presence must be probed. And,
a careful examination must be undertaken of the basis for the
asserted reasonable articulable suspicion of dangerous persons on
the premises. The law enforcement officers cannot have created the
danger to which they became exposed by entering the premises, and
thereby bootstrap into an entitlement to perform a protective sweep.
Thus the inquiry should examine whether the request for entry was
legitimate or a ruse and whether the officers can identify
articulable reasons for suspecting potential harm from a dangerous
person that arose once the officers arrived at the scene.
In summary,
the review of a protective sweep search and seizure shall require
the State to bear the burden of proving, in these warrantless search
contexts, the reasonableness of the protective sweep. That requires
a demonstration that the police presence at the property that was
swept was both lawful and legitimate.
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