Saturday, May 11, 2013

Police in New Jersey Cannot Enter Home Because Landlord Gives Permission

New Jersey Supreme Court Rule in State v. Vargas 
that the Police with Landlord's Permission, and 
Request, Cannot Enter the Home Without Warrant.
New Jersey's highest court again scores another victor for constitutional rights by curbing the power of police to enter and search a home on the pretext of concern for the health and safety of its occupant.

The Supreme Court held, 6-1, that the "community caretaking" doctrine, which permits a warrantless search of vehicles in limited circumstances, cannot be used to justify a home search, with the consent and request of the landlord, absent “some form of an objectively reasonable emergency."

The ruling, in State v. Vargas, A-56-11, reinstated a trial judge's suppression of narcotics and weapons seized in the apartment of Cesar Vargas, who resided in the City of Vineland,  by police responding to a landlord's report that he had not been seen for several weeks nor had received rent that was due.

After the officers knocked on the door to Vargas' apartment with no response, the landlord, Henry Olaya, used his keys to open the back door and entered the apartment with the officers. In the living room, the officers observed a glass jar about six to eight inches high with green vegetation inside that appeared to be marijuana. Olaya, on his own, opened one a kitchen drawer and found two canning jars full of marijuana.

After the officers made this discovery they left and obtained a search warrant. The search resulted in the seizure of $47,001 in U.S. currency, a shotgun, a rifle, ammunition, two ballistic vests, a clear plastic bag containing white powder, eight mason jars with pot, two digital scales, and measuring cups and pots with white powder residue (in other words a "jackpot" for the police).

Eventually the police learned that Mr. Vargas had been in custody for 10 days after being arrested by the State Police in connection with another investigation.

Cumberland County Superior Court Judge Benjamin Telsey ordered the suppression of the contraband.  However, the Appellate Division reversed, saying the conduct was based a legitimate concern for Vargas' welfare and was not part of any criminal investigation.

Justice Barry Albin, writing for the majority said Olaya knew nothing of Vargas' personal or work life, his comings and goings, his vacation habits or whether he often left to visit family. There was no reason, he said, why the police could not attempt to obtain a warrant before entering his apartment.

The community-caretaking doctrine has its origins in the seminal U.S. Supreme Court's ruling in Cady v. Dombrowski, 413 U.S. 433 (1973).  In that case the court upheld the search of a motor vehicle of a suspected drunken driver after it had been towed to a private garage.  Judge Albin held, however, that the Supreme Court "never suggested that community-caretaking responsibilities constituted a wholly new exception to the warrant requirement that would justify the warrantless search of a home.”

Additionally, distinguishing State v. Bogan, 200 N.J. 61 (2009), that the community-caretaking doctrine could apply in the case of police taking "de minimis" steps to ensure the safety of a child in an apartment building where there had been a recent rape, Albin said.

Again citing its ruling in State v. Edmonds, 211 N.J. 117 (2012), Justice Albin stated that there must generally be exigent circumstances to search a home without a warrant, and even then the exception is "not a roving commission to conduct a nonconsensual search of a home…"

In every criminal case you must consult with an experienced New Jersey Criminal Defense Attorney to determine whether you have a viable motion to suppress.

Finally, the Court held, "[W]e now expressly disapprove of language suggesting that the community-caretaking doctrine permits the warrantless entry into or search of a home in the absence of some form of exigent circumstances ... We reject the State's position that the community-caretaking doctrine, standing alone and in the absence of some form of exigent circumstances, allows the police to conduct warrantless searches of homes.”
"To accept the State's argument would render the emergency-aid doctrine obsolete and undermine the heightened protections afforded to the home under our Federal and State Constitutions," Albin said.

If you have been charged with possession with intent to distribute CDS, controlled dangerous substance such as  Heroin, Cocaine, and Marijuana and other prescription narcotics or charged with a weapons offense such as unlicensed handgun or other firearm, you should consult with Attorney Sanzone who has achieved successful results in filing motions to suppress and suppressing CDS in Union, Essex, Hudson, Somerset, Bergen, Monmouth, Ocean, Middlesex, Mercer counties.
Law Office of Vincent J. Sanzone, Jr.
277 North Broad Street
P.O. Box 261
Elizabeth (Union County), New Jersey 07207
Office Phone No. (908) 354-7006
Cell Phone No.   (201) 240-5716
Dated: May 11, 2013

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