State v. Bryant, 227 N.J. 60 (2016). As has been noted before, a new Justice’s first opinion is customarily a unanimous one in a relatively uncomplicated case. Today, Justice Timpone authored his first opinion since taking the bench. Fittingly, given Justice Timpone’s experience in criminal law, that first opinion deals with search and seizure issues.
More specifically, the case involved the protective sweep doctrine. A woman had called 911 to report that she had been assaulted. In that call, she did not give her name or her alleged assailant’s name, but she did provide an address When police responded, she gave her name, the name of her alleged attacker, and his address, an apartment. Two policemen responded and went to the apartment. Two other policemen also responded. They found the woman in her car, and she eventually told them that she had been attacked by defendant Bryant, her boyfriend. One of those policemen, Corporal Newbon, then went to defendant’s apartment to see what was happening there.
Newbon found that one of the officers was with defendant, who had been instructed to sit on a couch and be questioned, while the other officer (who could not hear the questioning) was conducting a protective sweep of the apartment, looking in all of its rooms for potential weapons or other persons who might pose a threat. During that protective sweep, the officer smelled an “overwhelming odor” of marijuana in a bedroom. Looking into a closet, the officer saw a plastic bag with vegetation that he believed was marijuana through a hole in a shoebox that was on a shelf in that closet. He called Newbon, who also smelled the marijuana and directed that the plastic bag be seized. Defendant was arrested and taken from the apartment while the police obtained a search warrant. A subsequent search revealed an assault weapon, marijuana, and marijuana packaging materials.
Defendant was indicted on various drug and firearms charges. He moved to suppress the drug-related evidence and the gun, claiming that the search was illegal. The Law Division denied that motion, and the Appellate Division affirmed. Defendant petitioned for certification, and the Supreme Court granted review on the issue of whether the protective sweep was lawful. Today, the Court unanimously reversed and held that the sweep was unlawful.
After laying out some fundamental Fourth Amendment principles, Justice Timpone noted that protective sweeps are an exception to the warrant requirement. They are appropriate as long as police have a “reasonable [and] articulable suspicion,” which must be “individualized, rather than generalized,” that “the area to be swept harbors an individual posing a danger.” “Visual or auditory cues,” or other factors such or police knowledge of a particular accused person, “overly nervous conduct,” or inconsistent responses to questioning, can all suffice to validate a protective sweep.
Here, however, none of those factors were present. There was no testimony that any sights or sounds prompted the sweep. Nor was there evidence of excessive nervousness or inconsistent answers by defendant. Indeed, the officer performing the sweep could not even see or here defendant as the other officer was questioning him. Instead, the officer relied on his own general practice to conduct a sweep, as well as the possibility that someone else could have been in the apartment. That made the basis for the search “nothing more than a hunch, not a reasonable and articulable suspicion.”
Though Justice Timpone recognized that domestic violence is a serious problem, and that police face difficulty in responding to domestic violence reports, the sweep could not be sustained. The Court accepted the Law Division’s fact findings, but applied the de novo standard of review to the legal issue and found that reversal was mandated.