NJ: Waiting for a SW isn’t exigency to enter a home, but that wasn’t clearly established in 2008 for § 1983 purposes

In 2008, officers entered and seized plaintiff’s home while waiting for a search warrant. In a § 1983 and N.J. Civil Rights Act case, it was not clearly established at the time that that was unreasonable. He gets qualified immunity, but henceforth that’s not exigency. Brown v. State, 2017 N.J. LEXIS 805 (July 24, 2017). From the court’s syllabus:

In light of the context in which these circumstances arose—i.e., the lack of clarity in the law governing the lawful means by which law enforcement may secure a home pending issuance of a warrant and, significantly, that law’s intersection with the law governing the exigent circumstances exception to the warrant requirement—defendant did not violate a “clearly established” right when he entered Brown’s home to secure it, and qualified immunity applies.

1. Whether a governmental official is entitled to qualified immunity requires inquiries into whether: (1) the facts, taken in the light most favorable to the party asserting the injury show the officer’s conduct violated a constitutional right; and (2) that constitutional right was clearly established at the time that defendant acted. (pp. 15-17)

2. Ordinarily, application of the defense of qualified immunity is a legal question for the court rather than the jury. The record does not clearly indicate that the trial court made a ruling as to the legality of the initial entry into Brown’s apartment prior to trial. In the future, it would be more helpful for proceedings to identify with transparency the reasons for delaying a decision on qualified immunity. (pp 17-19)

3. Brown alleges that the police entry into her apartment violated the right of New Jerseyans “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” N.J. Const. art. I, ¶ 7. Under that provision, a warrantless search is presumptively invalid unless the search falls within one of the few well-delineated exceptions to the warrant requirement. One exception is a search justified by probable cause and exigent circumstances. The Attorney General has expressly conceded that, on these facts, “the officers could not have relied on exigent circumstances to search Brown’s home while they awaited the warrant.” (pp. 19-20)

4. Instead, the Attorney General argues that the entry was lawful under United States Supreme Court case law that has specifically addressed the propriety of securing premises from within to preserve evidence while a search warrant was sought. In a 1984 case, the United States Supreme Court splintered on that pertinent issue. Segura v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984). Confusion engendered by Segura was alleviated to some degree by the Supreme Court’s decision in Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001), which held that a police officer was justified in temporarily preventing a defendant from entering his home until a search warrant issued. To the extent that Segura and McArthur can be argued to justify a discrete set of warrantless home entries pending receipt of a requested warrant, they do so specifically in connection with “a plausible claim of specially pressing or urgent law enforcement need, i.e., ‘exigent circumstances.'” Id. at 331. (pp. 20-24)

5. In the seven years between McArthur and the conduct at issue in this case, the New Jersey Supreme Court did not opine on the constitutionality of seizing a home by securing it and preventing all access, or alternatively entering it with the occupant, while awaiting a search warrant. Appellate court decisions that considered the issue have not advanced a uniform interpretation of the law. The Court has recently touched on issues presented in Segura and McArthur. State v. Wright, 221 N.J. 456, 114 A.3d 340 (2015); State v. Legette, 227 N.J. 460, 152 A.3d 887 (2017). That guidance cannot inform the analysis of the conduct in this case because it came years after the contested home entry. (pp. 24-28)

6. As of November 20, 2008, precedent was not sufficiently clear to support a conclusion that Detective Steet violated clearly established law when he entered Brown’s home to secure it. And although police department policies do not hold compelling weight in a qualified immunity analysis, Detective Steet’s reliance on State Police training and policy is informative when determining the reasonableness of his conduct. Detective Steet is entitled to qualified immunity as to Brown’s NJCRA claim because regardless of whether his conduct amounts to a violation of a constitutional right, that right was not clearly established at the time that he acted. (pp. 28-35)

7. The Court adds guidance going forward. In a case of true exigency and probable cause, the police can enter a dwelling. However, police-created exigency designed to subvert the warrant requirement has long been rejected as a basis to justify a warrantless entry into a home. Further, invocation of a person’s right to refuse an officer’s request for a consent search is not probative of wrongdoing and cannot be the justification for the warrantless entry into a home. In the future, law enforcement officials may not rely on McArthur to enter an apartment to secure it while awaiting a search warrant. Although McArthur does not explicitly permit or forbid entry into a home under those circumstances, this ruling makes clear that officers may not do so. They must get a warrant and, if reasonably necessary, may secure the apartment for a reasonable period of time from the outside. (pp. 35-37)