NJ: private search doctrine doesn’t give the police the opportunity to do a search of the home without a warrant

The private search doctrine doesn’t give the police the opportunity to do a search of the home without a warrant. State v. Wright, 2015 N.J. LEXIS 549 (May 19, 2015). Syllabus by the court:

The third-party intervention or private search doctrine does not exempt law enforcement’s initial search of defendant’s home from the warrant requirement. Absent exigency or some other exception to the warrant requirement, the police must get a warrant to enter a private home and conduct a search, even if a private actor has already searched the area and notified law enforcement.

1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guard against warrantless searches. The first clause of each guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The United States Supreme Court recently reaffirmed the heightened status of the home under the Constitution. The Court observed that “when it comes to the Fourth Amendment, the home is first among equals” and stands “at the Amendment’s very core.” Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013). A warrantless search of a private dwelling is “presumptively invalid,” State v. Lamb, 218 N.J. 300, 315 (2014), and calls for “particularly careful scrutiny,” State v. Bolte, 115 N.J. 579, 583 (1989). To overcome that presumption, the State must show that a warrantless search falls within a recognized exception to the warrant requirement. (pp. 12-15)

2. The third-party intervention doctrine has its roots in Burdeau v. McDowell, in which the Supreme Court held that the Fourth Amendment’s warrant requirement applies only to government agents, not private actors. 256 U.S. 465 (1921). The Supreme Court reaffirmed that principle in Walter v. United States, 447 U.S. 649 (1980). Neither the United States Supreme Court nor this Court has applied the third-party intervention or private search doctrine to the search of a private home. That would represent a significant expansion of the doctrine. Police would no longer simply be asked to view a discrete set of items turned over to them. Instead, they would walk through a private residence and observe far more. Courts around the country have wrestled with this question. Some have expressly declined to expand the doctrine to private dwellings. Other courts have permitted warrantless searches of a private home that did not exceed the scope of an earlier private search. (pp. 15-26)

3. The United States Supreme Court has never applied the private search doctrine to the home, and this Court does not glean from recent decisions that it would allow such an extension. Relying on the protections in the State Constitution, the Court concludes that the private search doctrine cannot apply to private dwellings. Absent exigency or some other exception to the warrant requirement, the police must get a warrant to enter a private home and conduct a search, even if a private actor has already searched the area and notified law enforcement. A landlord, like any other guest, may tell the police about contraband he or she has observed. And the police, in turn, can use that information to apply for a search warrant. But that course of events does not create an exception to the warrant requirement. To hold otherwise would result in a sizeable exception to the requirement and expand the private search doctrine beyond the minimal intrusion it originally sanctioned. An invitation to a plumber, a dinner guest, or a landlord does not open the door to one’s home to a warrantless search by a police officer. In addition, in this case, the State cannot rely on the plain view doctrine to justify the seizure of the scale because the officer was not “lawfully in the viewing area.” (pp. 26-30)

4. The third-party intervention or private search doctrine does not exempt law enforcement’s initial search of defendant’s home from the warrant requirement. Nothing in this opinion, however, is intended to cast doubt on the private search or third-party intervention doctrine in its original form. When the police reexamine property that has been searched by a private actor and presented to law enforcement in a non-residential context, neither the Fourth Amendment nor the State Constitution requires a warrant. (pp. 30-32)