NJ: Protective sweep of house for gun inside was unreasonable where defendant was arrested outside

Protective sweep of house for gun inside was unreasonable where defendant was arrested outside. State v. Radel, 2020 N.J. Super. LEXIS 222 (Oct. 20, 2020):

Even though a protective sweep does not have to be “incident to an arrest,” Buie and Davila presuppose that law enforcement officers who believe themselves or others in potential danger would actually be in the premises or location to be swept. In both cases, officers were properly inside the defendant’s home either to execute an arrest warrant or by consent, thus presenting the heightened concern for their safety that the protective-sweep doctrine requires.

This case differs. No one disputes that defendant was outside his home, under arrest, and in handcuffs before police made the decision to enter his home, ostensibly for their protection. Despite this distinguishing fact, the judge found that Davila’s first prong “can be extended to the circumstances of this case” and he then justified that extension by reference to facts he found supportive of the second prong. We reject the judge’s legal analysis.

The first prong requires that the officers have a legitimate purpose for being within the private area to be swept. The officers were in the vicinity to either obtain the handgun described in the October 27 forfeiture order or to execute the municipal warrants calling for defendant’s arrest. The October 27 order only directed them to 103 Browertown, not 81 Browertown; it did not explicitly authorize a search of the former, let alone the latter. And, the municipal warrants only provided authority to arrest defendant. Once the arrest was accomplished, the arrest warrants were fulfilled, and the officers had no further legitimate purpose for remaining on the property. See State v. Lane, 393 N.J. Super. 132, 154-55, 157-58 (App. Div. 2007). We, thus, reject the judge’s legal conclusion that the first prong of the Davila test was met.

Even assuming the first prong was satisfied, we conclude that the circumstances offered on the second prong were insufficient to support a permissible protective sweep. In finding that the State sufficiently demonstrated the officers had a reasonable and articulable suspicion that the place to be swept harbored a danger, the judge relied on:

• the forfeiture order;

• one officer’s fleeting observation that someone dressed in blue in the backyard entered the home from the rear a few minutes before defendant, also dressed in blue, exited from the front;

• that same officer heard a “loud bang”;

• two cars were in the driveway; and

• what the judge referred to as defendant’s “contradictory answers to the police.”

We conclude that, whether considered individually or collectively, these circumstances could not support a reasonable and articulable suspicion that both a weapon and at least one other person were inside 81 Browertown and posed a threat to the officers or others.