Date: 09-15-2015

Case Style: DENISE BROWN VS. STATE OF NEW JERSEY AND JOHN STEET, DETECTIVE (NJSP), ET AL.

Case Number: A-4796-12T3

Judge: Superior Court Judge Thomas V. Manahan

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: William A. Ribac

Defendant's Attorney: William P. Flahiv

Description: Two members of the New Jersey State Police entered
plaintiff Denise Brown's home without a warrant and without
consent in order to "secure the apartment" while they sought a
search warrant for the premises. They were looking for evidence
of a home invasion they believed had been committed by her
boyfriend, and, specifically, for a stolen piece of jewelry they
had reason to suspect he had given her.
The officers were able to secure a warrant several hours
after entering Brown's apartment. A search, however, did not
uncover the jewelry or any useful evidence. Brown was not a
suspect in the investigation and was never arrested or charged
with any crime. The charges against Brown's boyfriend were
dismissed before trial.

Brown sued the State and New Jersey State Police detective
John Steet1 for violating her state constitutional rights under
the New Jersey Civil Rights Act, N.J.S.A. 10:6-2c. A jury
returned a verdict for defendants and the judge denied Brown's
motion for judgment notwithstanding the verdict (JNOV) and for
an injunction requiring the State Police to take all steps
necessary to come into compliance with the warrant requirement.
Brown appeals from the denial of her JNOV motion contending
that she is entitled to judgment and an injunction "because it
is indisputable the [State Police] seized and entered her
residence absent a warrant, consent, or exigent circumstances
according to policy and training." We affirm the denial of the
motion as to the State, as well as the denial of an injunction
because the State is immune from suit under the Civil Rights
Act. We reverse the denial of the motion as to Steet and remand
for a trial on damages because the troopers' testimony
establishes, indisputably, that their entry into Brown's
residence before securing the warrant was unlawful as a matter
of law.

We review the denial of a JNOV motion using the same
standard as the trial court and thus consider "'whether the
evidence, together with the legitimate inferences therefrom,
could sustain a judgment in . . . favor of the party opposing
the motion.'" Sons of Thunder, Inc. v. Borden, Inc., 148 N.J.
396, 415 (1997) (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6
(1969)). To the extent the trial court's denial of Brown's
motion was premised upon an interpretation of the law relating
to warrantless searches, our review is de novo. See Hitesman v.
Bridgeway, Inc., 218 N.J. 8, 26 (2014).
We take the facts from the trial testimony of the State
Police detectives. The detectives were investigating a home
invasion that had happened about three weeks before the events
at Brown's home. Two men wielding revolvers had forced their
way into a home in Dennis Township in Cape May County and made
off with some jewelry.2 Witnesses saw two men, one carrying a
2 The home invasion was apparently a case of drug dealers stealing from drug dealers. The victim told police that the robbers had attempted to force her to open a safe in the basement belonging to her boyfriend, the target of a narcotics investigation by the Cumberland County Prosecutor's Office, who also resided in the home. When she was unable to open the safe, the robbers fled. The victim gave the officers consent to search her home. They recovered $20,000 cash in the safe, and (continued)
A-4796-12T3 5
black drawstring, backpack-type bag, get into a blue BMW and
drive away. The detectives identified Brown's boyfriend as a
suspect. They also acquired information from two different but
related sources that he had given Brown a locket stolen in the
robbery.3
Over a week later, Vineland police stopped a blue BMW
matching the one witnesses saw in Dennis and arrested the three
occupants. The BMW belonged to Brown and was being driven by
her boyfriend. State Police impounded the car intending to get
a search warrant for its contents. The detectives waited over a
week to apply for a warrant to search the car. In the interim,
one of the detectives, the lead investigator, spoke several
times to Brown, who was anxious to recover her car. Upon
obtaining the warrant, the lead investigator called Brown to
(continued) $1000 in the pocket of a jacket in the master bedroom as well as a quantity of marijuana. The victim's mother reported that her ex-boyfriend spoke frequently about robbing her daughter's boyfriend, and that she told him if he was going to do it, he should do it when her grandchildren were not home. She also told police that Brown's boyfriend committed the robbery for her ex-boyfriend.
3 The mother's ex-boyfriend was the source of the information that "the girl who owns the BMW" was wearing the stolen locket several days after the robbery. Although Cape May detectives reported to State Police that the victim's mother told them that Brown "was currently in possession" of the locket, they did not say whether the information came from her discussions with her ex-boyfriend, as had her other information, or whether she had some independent source of knowledge.
A-4796-12T3 6
tell her they would be searching her car the next morning, and
she could pick it up afterward. When she said she was without a
ride to Buena where the car was impounded, the investigator
offered to pick her up and take her to her car.
When the detectives searched Brown's car, they found crack
cocaine, marijuana and heroin, as well as a holster for a small
caliber gun, like the ones used in the robbery, and some
jewelry. They immediately decided that the next step in their
investigation should be to search Brown's house for additional
evidence. As they were already scheduled to pick Brown up to
take her to her car, they drove directly to her home to seek her
consent for a search.
The lead investigator and Detective Steet met with Brown
just outside her apartment. The lead investigator testified
that Brown refused their request to search her home. His
counsel then asked:
[Defendants' counsel:]
Trooper, what are you trained to do in this situation, where you go to a place, you go to an apartment and you ask for consent, consent is denied, validly denied? What's your obligation in terms of the training you've received through the State Police?
[Lead investigator:]
We have to preserve the scene, to keep the integrity of possible evidence, and then we
A-4796-12T3 7
have to make the application for the search warrant.
The investigator explained in response to further questioning
that State Police has "the right to maintain the scene," which
includes "entering the residence" when the occupant has refused
a request to search supported by probable cause. The detectives
testified they gave Brown two options. "[W]e gave her choices
to, she could leave. Just lock up the property and give us a
key so that when we get the search warrant, we can unlock it."
"The other option is if she is insistent in going into her own
home, then we would have to accompany her with that time that
we're waiting for the search warrant."
Detective Steet testified when Brown "was adamant to say,
no I'm going into my own house," the officers followed her
inside despite their clear understanding that Brown "didn't want
us in that house." The detectives accompanied Brown to the
kitchen, telling her "to sit at the kitchen table until we get
our search warrant." The detectives remained in Brown's home
for several hours, refusing her requests to use her own bathroom
unless accompanied by a female officer.
When asked by his counsel why the detectives did not want
Brown back in her home alone, the lead investigator testified,
"we didn't want her to destroy any evidence. We didn't want her
rummaging around the house." When asked whether the detectives
A-4796-12T3 8
had any specific concern that Brown would destroy evidence, the
investigator replied, "if people are possessing things that are
stolen, there's always a reason to believe that once they
realize that they might be a suspect in possessing that stolen
property, that they're going to destroy it or get rid of it."
That led to the following exchange:
[Plaintiff's counsel:]
So anybody that you have reason to believe has evidence, you have reason to believe that they're destroying the evidence. Is that what your testimony is?
[Lead investigator:]
That's absolutely a possibility, yes.
Detective Steet was even clearer about his conclusions. He
testified he had no concern about Brown destroying evidence
until the detectives made her "aware of the existence of
evidence in her home and she insisted in going into her home."
The detective explained that in the course of asking Brown's
consent to search her home, "[w]e explained exactly what we were
looking for when it came to that necklace, the locket with
diamonds. . . . She knew we were aware of that existing and
that our information was, we believed that she was in possession
of it." When asked what facts supported his belief that Brown
would destroy evidence, Steet responded:
A-4796-12T3 9
Her insistence – her – she insisted on going into that home without our presence. That mere fact, for any reasonable person to believe, once they know that that exists, that evidence is going to be gone.
So what she wanted us to do was to just allow her to go into her home, have us leave and go get the search warrant.
We're going to come back with the search warrant some hours later, do the search of the house and that evidence that she's specifically told about is not going to be there.
The lead investigator also testified the detectives had no
proof that Brown "was actively destroying evidence" at any time
before they asked Brown for consent to search her home. When
Brown's counsel asked him whether he had any fear that by asking
for consent he would be tipping off the witness, he replied,
"No, because if they deny consent, we then are going to make
application for the search warrant and now, we're going to
maintain control of the integrity of the residence." He further
explained that exigent circumstances were not at issue in this
case because "that deals with more serious crimes, where someone
could possibly, at that very moment, be destroying evidence.
Once you're at the house and you have it secured, it – exigent
circumstances don't exist."
The detectives' supervisor, the sergeant in charge of the
criminal investigation office at the Woodbine station, testified
A-4796-12T3 10
that the detectives had kept him apprised of the progress of
their investigation, and that he was aware they would be seeking
Brown's consent to search her home. He testified that if the
homeowner denies consent and refuses to "lock and leave," she is
free to stay inside her home, but "[w]e stay too." He explained
that it was not only "his training and experience" that dictated
that course "but logic. We can't allow it to – we can't allow
anything to jeopardize the integrity of what's going on inside,
once we are now going to take steps to secure a warrant."
When Brown's counsel asked whether it was his
"understanding, if the consent is denied, that [State Police
has] the right to seize the property," the supervisor replied:
No, sir. It all depends on what that consent is based upon. If I'm going and asking you for a consent based upon RAS; reasonable, articulable suspicion, and you say no, I've got to walk away because I can't do anything other than ask and . . . hope to gain your permission.
. . . .
If I ask for consent based on probable cause, which is what [the detectives] did that day, and you say no, I have the benefit of having a very good plan B, which would be applying for a search warrant.
When Brown's counsel asked why they had not considered
applying for a telephonic warrant, the supervisor replied,
"Because I would not have, nor would any other of the
A-4796-12T3 11
investigating personnel, been able to articulate that we had a
reasonable expectation that the evidence would be destroyed or
lost." When asked by his own counsel whether applying for a
telephonic warrant would have been appropriate after the
detectives found the holster and jewelry in the car, the
supervisor said, "Absolutely not." When counsel asked why, the
supervisor explained, "Because there's no exigency there."
Finally, in response to counsel's question about the reason for
not applying for a telephonic warrant once the detectives
secured the property, the supervisor said, "Because we took away
the exigen[t] circumstances." He agreed with his counsel's
statement that "[o]nce that property is in the control of [the
detectives], . . . there are no exigent circumstances in terms
of worrying about the destruction of evidence."
When the officers finally obtained the warrant and searched
Brown's home, they did not find the locket they were looking
for. The only item listed on the search warrant return was a
black Nike backpack similar to the one witnesses reported the
robbers carried. The lead investigator testified that although
the bags were of the same type, none of the witnesses was able
to say the bag found in Brown's closet was the one carried by
the robbers.
A-4796-12T3 12
Our view of this testimony is that it represents a profound
misunderstanding of the "narrow scope of the exigent
circumstance exception" to the warrant requirement and
establishes beyond any doubt that the detectives' entry into
Brown's home violated her rights under Article I, paragraph 7 of
the New Jersey Constitution of 1947.4 See State v. Lewis, 116
N.J. 477, 484 (1989).5
4 Plaintiff's original complaint alleged violations of her rights under the Fourth Amendment as well as under Article I, paragraph 7. Defendants removed that complaint to federal court. Plaintiff subsequently dismissed voluntarily her federal claims and the matter was remanded to state court where it has proceeded under an amended complaint solely under our state constitution.
5 Although the Supreme Court made clear it was deciding Lewis under the Fourth Amendment and not under Article I, paragraph 7 on which we had relied, 227 N.J. Super. at 594-95 & n.1, the opinion did not criticize or overrule Judge King's state constitution analysis. 116 N.J. at 489. Thus, we consider Lewis as representing the Court's view that as to the exigent circumstance exception justifying warrantless entry into a dwelling, the search and seizure safeguards of the federal and state constitutions are coterminous. See State v. Hunt, 91 N.J. 338, 344 (1982) (noting the "Court has seen fit to hold that the search and seizure provisions in the federal and New Jersey Constitutions are not always coterminous, despite the congruity of the language") (citations omitted). In no event could we interpret Article I, paragraph 7 to provide Brown less protection from unreasonable searches and seizures than that guaranteed her under the Fourth Amendment. See State v. Novembrino, 105 N.J. 95, 145 (1987) (noting that "although the language of article I, paragraph 7 of the New Jersey Constitution is virtually identical with that of the fourth amendment, we have held in other contexts that it affords our citizens greater protection against unreasonable searches and seizures than does the fourth amendment").
A-4796-12T3 13
"[P]hysical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed." United
States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125,
2134, 32 L. Ed. 2d 752, 764 (1972). In State v. Hutchins, 116
N.J. 457, 463 (1989), decided over twenty-five years ago, the
Court declared it was "well established that 'searches and
seizures inside a home without a warrant are presumptively
unreasonable,' Payton v. New York, 445 U.S. 573, 586, 100 S. Ct.
1371, 1380, 63 L. Ed. 2d 639, 651 (1980), and hence 'prohibited
by the Fourth Amendment, absent probable cause and exigent
circumstances.' Welsh v. Wisconsin, 466 U.S. 740, 749, 104
S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 743 (1984)."
Although whether there was probable cause to search Brown's
home is questionable,6 it is beyond doubt there were not exigent
6 Leaving aside the questionable reliability of the source of the information that Brown was wearing the stolen locket, and the likely "echo" of that source in the information provided by his ex-girlfriend, the victim's mother, the information on which the lead investigator relied to secure the search warrant of Brown's home, that the "search of the BMW revealed jewelry that belonged to the victim, minus the [locket]," was not true. The investigator testified at trial that although they "believed at the time" the jewelry found in Brown's car was stolen in the home invasion, "we showed them to the victim and she couldn't identify them." The detectives did not attempt to confirm the jewelry found in the car was stolen in the home invasion before deciding they needed to search Brown's house or swearing out an affidavit to that effect in order to secure a search warrant when Brown denied them entry. Because plaintiff stipulated that (continued)
A-4796-12T3 14
circumstances to justify the detectives' warrantless entry, and
that whatever exigency existed was solely of the detectives'
making. Although the term defies precise definition divorced
from the facts of some specific case, "[g]enerally stated,
circumstances are exigent when they 'preclude expenditure of the
time necessary to obtain a warrant because of a probability that
the suspect or the object of the search will disappear, or
both.'" State v. Deluca, 168 N.J. 626, 632 (2001) (quoting
State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif.
denied, 66 N.J. 327 (1974)). The Court has recently reiterated
that "'[e]xigent circumstances are present when law enforcement
officers do not have sufficient time to obtain any form of
warrant' because of the immediate and urgent circumstances
confronting them." State v. Hathaway, ___ N.J. ___ (2015)
(quoting State v. Pena-Flores, 198 N.J. 6, 30 (2009)).
When determining whether exigent circumstances exist,
courts consider:
the degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the
(continued) the detectives had probable cause to search her home, we do not consider this issue further.
A-4796-12T3 15
strength or weakness of the underlying probable cause determination.
[State v. Walker, 213 N.J. 281, 292 (2013) (quoting Deluca, supra, 168 N.J. at 63233).]
Applying those factors here, it is plain that exigent
circumstances were absent as a matter of law. These troopers
were not confronted with any immediate and urgent circumstances,
certainly none not of their own making. The detectives had the
information that Brown supposedly had the locket within days of
the home invasion, well before her boyfriend was arrested
driving her BMW. After they were able to impound the car, the
detectives waited over a week to apply for a warrant to search
it. The detectives testified they had no belief that Brown was
destroying or removing evidence, or that she even knew she might
possess evidence, until the detectives told her they were
searching for the locket. Although the offense the detectives
were investigating was a serious one, Brown was not a suspect.
And although Brown does not dispute the existence of probable
cause, the facts to establish it were not strong. The
information that she had the locket came from an individual
implicated in the crime and from his ex-girlfriend. No details
of any sort were provided. The jewelry found in her car had no
link to Brown or to the crime the detectives were investigating.
A-4796-12T3 16
The detectives' testimony at trial makes clear that they
developed their belief that Brown might try and remove or
destroy evidence only after they told her of the locket, and she
denied their request to search her home for it. For Detective
Steet it was Brown's "insistence . . . on going into that home
without our presence. That mere fact, for any reasonable person
to believe, once they know that that exists, that evidence is
going to be gone." The Court, however, has been unequivocal
that "[a] homeowner has a right under our federal and state
constitutions to insist that a police officer obtain a warrant
before entering and searching his house. The assertion of that
constitutional right, which protects the most basic privacy
interests of our citizenry, is not probative of wrongdoing and
cannot be the justification for the warrantless entry into a
home." State v. Frankel, 179 N.J. 586, 611, cert. denied, 543
U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004), modified in
part on other grounds by, State v. Edmonds, 211 N.J. 117, 131
(2012) (citations omitted).
As for the detectives' belief that without stopping Brown
from entering her apartment without them, "that evidence that
she's specifically told about is not going to be there," the law
is clear that police-created exigent circumstances arising from
unreasonable investigative conduct do not justify warrantless
A-4796-12T3 17
entry into an individual's home. Hutchins, supra, 116 N.J. at
460, 474-76; State v. De La Paz, 337 N.J. Super. 181, 196-97
(App. Div.), certif. denied, 168 N.J. 295 (2001) (finding police
should have obtained telephonic warrant before entering
defendant's home "as there was no obvious urgency requiring
their immediate response at the scene").
The only reason the detectives offered for telling Brown
about the locket in the course of seeking her consent was the
hope she would turn it over voluntarily. We find it hard to
imagine a scenario more unreasonable than the police telling
someone not suspected of any crime that the police wish to
search her home for specific evidence and, when she declines,
claiming their warrantless entry is justified by her possible
destruction of the evidence they just revealed to her. If that
were the law, no citizen would enjoy "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." N.J. Const. art.
I, ¶ 7. That scenario would, as it obviously did for these
troopers, make a citizen's mere assertion of her constitutional
right to insist that a police officer get a warrant before
entering her home probative of wrongdoing, an untenable result.
See Frankel, supra, 179 N.J. at 611. Because the "exigent
circumstances" the detectives offered as justification for
A-4796-12T3 18
proceeding without a warrant were inadequate as a matter of law
and were, in any event, impermissibly self-created, they cannot
justify the warrantless entry into Brown's home. See De La Paz,
supra, 337 N.J. Super. at 196-97.
The State defendants assert on appeal, as they did at
trial, that the detectives did not need exigent circumstances to
enter Brown's home while they waited for a warrant. Relying on
Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148
L. Ed. 2d 838 (2001), they insist that "plaintiff confuses the
concepts of a search based on 'exigency' and simply maintaining
the status quo while the warrant is obtained." We do not find
McArthur to be any refuge for the detectives here.
In McArthur, the United States Supreme Court held that
police officers did not violate the Fourth Amendment when they
prevented a defendant from entering his home for about two hours
while the officers obtained a search warrant for the premises.
531 U.S. at 328, 121 S. Ct. at 948, 148 L. Ed. 2d at 846. They
did so after defendant's wife, whom the officers had accompanied
to the trailer the couple shared "so that they could keep the
peace while she removed her belongings," told the police on her
way out that they should check the trailer because her husband
"had dope in there" and she had seen him "slide some dope
A-4796-12T3 19
underneath the couch." Id. at 328-29, 121 S. Ct. at 948-49, 148
L. Ed. 2d at 846.
The Court declined to find "that the warrantless seizure
was per se unreasonable" because (1) "the police had probable
cause to believe that McArthur's home contained evidence of a
crime and contraband, namely, unlawful drugs"; (2) it involved
"a plausible claim of specially pressing or urgent law
enforcement need, i.e., 'exigent circumstances'"; (3) "the
restraint at issue was tailored to that need, being limited in
time and scope"; and (4) the restraint that was imposed
"avoid[ed] significant intrusion into the home itself." Id. at
331-32, 121 S. Ct. at 950, 148 L. Ed. 2d at 847-48.
In our view, McArthur cannot fairly be read to eschew the
requirement for exigent circumstances for a warrantless entry
into a home. We further find McArthur inapposite for several
reasons: (1) the detectives here did not suspect Brown of
engaging in any criminal activity; (2) the detectives did not
have any reason to believe Brown would destroy evidence before
they told her about the locket and no reason specific to Brown
as to why she might try to destroy the locket even after they
informed her of its provenance; (3) the restraint imposed on
Brown was more severe, as the detectives remained in her home
A-4796-12T3 20
for three and a half to four hours,7 making no attempt to obtain
a telephonic warrant; and (4) the intrusion into her home was
greater, there were always at least two officers present, and
Brown was not allowed even to use the bathroom unaccompanied by
an officer.
A case decided by the Court a year after McArthur, Kirk v.
Louisiana, 536 U.S. 635, 122 S. Ct. 2458, 153 L. Ed. 2d 599
(2002), makes clear that the State's argument that police may
make a warrantless entry into a home to "secure" it without a
showing of exigent circumstances is simply incorrect. In Kirk,
police officers who observed the defendant conduct a suspected
drug transaction entered his apartment and arrested him
ostensibly to prevent the destruction of evidence while they
obtained a search warrant for the premises. Id. at 636, 122
S. Ct. at 2458, 153 L. Ed. 2d at 601. The Louisiana Court of
Appeal refused to consider Kirk's argument that the police had
failed to prove exigent circumstances for their warrantless
entry, finding the issue irrelevant because the police had
probable cause to arrest Kirk and the charges against him were
7 The detectives testified that it took about six hours to obtain the warrant, despite that the detective's affidavit in support of the application was largely lifted from the affidavit used to secure the search warrant for the BMW. Brown had to leave for work about three and a half to four hours after the police arrived and thus was not present when the lead investigator returned with the warrant.
A-4796-12T3 21
based on evidence found on his person, not in the apartment.
State v. Kirk, 773 So. 2d 259 (La. Ct. App. 2000), as amended,
2002 La. App. LEXIS 3634 (La. Ct. App.), rev'd, 536 U.S. 635,
122 S. Ct. 2458, 153 L. Ed. 2d 599 (2002).
The Supreme Court reversed and remanded for a determination
of whether there were exigent circumstances that would have
justified the officers' entry into the apartment, holding that
"[a]s Payton makes plain, police officers need either a warrant
or probable cause plus exigent circumstances in order to make a
lawful entry into a home. The Court of Appeal's ruling to the
contrary, and consequent failure to assess whether exigent
circumstances were present in this case, violated Payton."
Kirk, supra, 536 U.S. at 638, 122 S. Ct. at 2459, 153 L. Ed. 2d
at 603.
Cases decided by lower federal courts since McArthur and
Kirk have routinely required a showing of probable cause and
exigent circumstances for any warrantless entry into a home
regardless of whether to search or simply secure. See, e.g.,
Harris v. O'Hare, 770 F.3d 224, 238 (2d Cir. 2014) ("Because
police officers require 'either a warrant or probable cause plus
exigent circumstances in order to make a lawful entry,' Kirk,
536 U.S. at 638, 122 S. Ct. 2458, the invasion of Plaintiffs'
curtilage without a warrant violated the Fourth Amendment.");
A-4796-12T3 22
Rogers v. Apicella, 606 F. Supp. 2d 272, 287 (D. Conn. 2009)
("Whether regarded as a warrantless entry or a 'protective
sweep,' this entry was unlawful absent exigent circumstances or
consent."); United States v. Christie, 570 F. Supp. 2d 657, 667
(D.N.J. 2008) (noting, "The McArthur Court ultimately held that
exigent circumstances justified the warrantless seizure of the
defendant's home, especially in light of the appropriately
balanced privacy-related and law enforcement-related concerns"),
aff'd, 624 F.3d 558 (3d Cir. 2010), cert. denied, 562 U.S. 1236,
131 S. Ct. 1513, 179 L. Ed. 2d 335 (2011). Accord United States
v. Watson, 703 F.3d 684, 693 (4th Cir. 2013) ("We are not aware
of any Supreme Court case or federal appellate decision
permitting a three-hour detention of an occupant of a building
who lacks any specific connection to suspected criminal
activity, while police obtain a warrant to search that
building.").
Although the State defendants contend "that no case decided
on the basis of Art. I, Para. 7 presents the same factual
setting" as this one, we think the Court's decision in Lewis,8
8 In Lewis, the police received information from an informant that he had seen drugs in the defendant's apartment, that defendant and others were packaging the drugs for immediate distribution and that one of the occupants had a gun. 116 N.J. at 480. The defendant opened the apartment door when a police officer knocked but, seeing the officer's uniform, tried to slam (continued)
A-4796-12T3 23
which involved the warrantless entry into a dwelling, more
closely analogous to this case than State v. Young, 87 N.J. 132,
144 (1981), on which the State defendants rely in support of
their argument that "the New Jersey Supreme Court has recognized
law enforcement's ability to effect a temporary seizure of
property while seeking a search warrant." Young, however,
involved a roadside search of a suitcase taken from the
defendant's car, not a warrantless entry into his home. Lewis,
on the other hand, makes clear that warrantless entry into a
(continued) it shut. Ibid. The officer "stuck his foot in the door to keep it open" and, at that point, saw "on the kitchen table, a glass, a gold razor blade, and a clear bottle containing a white powder believed by the officer to be narcotics." Ibid. The police went inside, arrested the defendant, and searched the apartment. Id. at 481. The Court held the officer's act of putting his foot in the door to prevent the defendant from closing it and retreating into his apartment was unlawful because the informant's report that people in the apartment "were 'getting ready to leave,' thus threatening removal of any narcotics on the premises," was not an exigent circumstance that would justify a warrantless entry, and that the police could have safely secured the apartment by surveilling it from the outside. Id. at 487-88. Our courts have consistently required both probable cause and exigent circumstances to justify entry into a dwelling. See, e.g., State v. Lashley, 353 N.J. Super. 405, 412 (App. Div. 2002) (noting "the warrantless entry of the dwelling was . . . unlawful in the absence of both probable cause and exigent circumstances"); State v. Holland, 328 N.J. Super. 1, 6 (App. Div. 2000) (noting that the two prongs of the test of the legality of a warrantless intrusion into a residence are probable cause and exigent circumstances), rev'd on other grounds, 176 N.J. 344 (2003); State v. Ulrich, 265 N.J. Super. 569, 572-73 (App. Div. 1993) (same), certif. denied, 135 N.J. 304 (1994).
A-4796-12T3 24
home is illegal absent consent or probable cause and exigent
circumstances. As the Court has lately noted, "a private home
is not like a package in transit." State v. Wright, 221 N.J.
456, 476 (2015) (declining under Article I, paragraph 7 to apply
the private search doctrine to private dwellings in light of
their "preeminent position" under the federal and state
constitutions).
Accordingly, having reviewed the testimony in the light
most favorable to defendants and having considered all of their
arguments, we conclude the trial court erred in submitting this
case to the jury because the detectives' own testimony makes
clear beyond any doubt that their entry into Brown's residence
before securing the warrant violated her rights under Article I,
paragraph 7 as a matter of law.9
9 Because the State is immune from suit under the Civil Rights Act, the vast amount of testimony and argument directed to whether State Police has a "policy" of warrantless entry under similar circumstances is irrelevant. Any such "policy" would be relevant only to impose liability on the State for Steet's actions, a result barred by the State's immunity. See, e.g., Stomel v. City of Camden, 192 N.J. 137, 145-46 (2007) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611, 635-36 (1978), and Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 590 (2006)) (explaining the circumstances under which a municipality can be held liable for the civil rights violations of its employees).
A-4796-12T3 25
That conclusion, however, does not end our inquiry. Brown
has sued under the Civil Rights Act, which provides in pertinent
part:
Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.
[N.J.S.A. 10:6-2c.]
The Act was adopted in 2004 "for the broad purpose of
assuring a state law cause of action for violations of state and
federal constitutional rights and to fill any gaps in state
statutory anti-discrimination protection." Owens v. Feigin, 194
N.J. 607, 611 (2008). The Court has noted that although the
legislative history is sparse, it "tells us that our State Civil
Rights Act is modeled off of the analogous Federal Civil Rights
Act, 42 U.S.C.A. § 1983, and is intended to provide what Section
1983 does not: a remedy for the violation of substantive rights
found in our State Constitution and laws." Tumpson v. Farina,
218 N.J. 450, 474 (2014). Given their similarity, our courts
A-4796-12T3 26
apply § 1983 immunity doctrines to claims arising under the
Civil Rights Act. See Gormley v. Wood-El, 218 N.J. 72, 113-15
(2014).
Although not raised by the parties on appeal, the State
defendants asserted they were immune from suit under the Civil
Rights Act in their answer to the complaint. Because the State
can raise its sovereign immunity at any time and does not waive
its immunity through litigation conduct, Royster v. N.J. State
Police, 439 N.J. Super. 554, 567-68, 572 (App. Div. 2015), we
consider whether it can be sued under the Civil Rights Act.
New Jersey courts "have long recognized that an essential
and fundamental aspect of sovereignty is freedom from suit by
private citizens for money judgments absent the State's
consent." Allen v. Fauver, 167 N.J. 69, 73-74 (2001). Our
Supreme Court has held that "[c]onsent has required clear and
unambiguous legislative expression." Id. at 74. Unlike certain
other remedial statutes such as the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1 to -49, or the New Jersey
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8,
both of which include the State in their definitions of
"employer," the Civil Rights Act does not on its face apply to
the State.
A-4796-12T3 27
That is perhaps not surprising in a statute modeled on
§ 1983, which the United States Supreme Court long ago
determined did not apply to the states. Will v. Mich. Dep't of
State Police, 491 U.S. 58, 67, 71, 109 S. Ct. 2304, 2310, 2312,
105 L. Ed. 2d 45, 55, 58 (1989) (holding that "in enacting
§ 1983, Congress did not intend to override well-established
immunities or defenses under the common law," and, accordingly,
"neither a State nor its officials acting in their official
capacities are 'persons' under § 1983"). Given that the
Legislature did not choose to include an express waiver of
sovereign immunity in the Civil Rights Act and that the State
enjoys immunity under the analogous § 1983, we conclude that the
State is immune from a suit for damages under the Civil Rights
Act. The federal courts are in accord. See, e.g., Didiano v.
Balicki, 488 F. App'x 634, 638 (3d Cir. 2012) (rejecting
plaintiff's argument that the word "person" should be
interpreted differently under the Civil Rights Act than in
§ 1983).
Likewise, because the State is not a "person" under the
Civil Rights Act, it is equally immune from suits for damages as
it is for suits seeking injunctions and other equitable relief.
See, e.g., Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105
A-4796-12T3 28
S. Ct. 3099, 3106 n.14, 87 L. Ed. 2d 114, 122 n.14 (1985)
(noting that "a State cannot be sued directly in its own name
regardless of the relief sought" unless its sovereign immunity
is affirmatively waived or validly abrogated by Congress).10
Accordingly, because the State is immune from suit under
the Civil Rights Act, we conclude that the trial court did not
err in denying Brown's JNOV motion as to the State for damages
and injunctive relief, notwithstanding the detectives' violation
of Brown's rights under Article I, paragraph 7 as a matter of
law.
Finally, we consider whether Detective Steet is entitled to
qualified immunity under the Civil Rights Act. The Court has
recently addressed the qualified immunity of police officers in
Morillo v. Torres, ___ N.J. ___ (2015) N.J. LEXIS 661, *21, *38
(July 13, 2015). There the Court explained that
[t]he doctrine of qualified immunity shields law enforcement officers from personal liability for civil rights violations when the officers are acting under color of law
10 Brown has not pursued an injunction remedy against the Superintendent of State Police in his individual capacity, see Ex parte Young, 209 U.S. 123, 154, 28 S. Ct. 441, 451, 52 L. Ed. 714, 728 (1908), as she dismissed her claims against him. Brown alleged in her complaint that Steet was "a policy making Defendant with respect to searches and seizures of citizens." There was, however, no testimony at trial to support that allegation. Steet testified he had been a trooper since 2003. He did not testify to having any supervisory or policy-making authority.
A-4796-12T3 29
in the performance of official duties. This protection extends to suits brought under 42 U.S.C.A. § 1983 and under New Jersey's analogue, the Civil Rights Act, N.J.S.A. 10:6-1 to -2.
[Id. at *10.]
We apply a two-prong test in determining whether a police
officer is entitled to qualified immunity. Id. at *25-*26
(citing Wood v. Moss, U.S. , , 134 S. Ct. 2056, 2066
67, 188 L. Ed. 2d 1039, 1051 (2014)). "The first inquiry asks
whether the facts alleged, '[t]aken in the light most favorable
to the party asserting the injury,' show that the challenged
conduct violated a statutory or constitutional right." Id. at
*26 (quoting Saucier v. Katz, 533 U.S. 194, 201-02, 121 S. Ct.
2151, 2156, 150 L. Ed. 2d 272, 281 (2001), and Wood, supra,
U.S. at , 134 S. Ct. at 2067, 188 L. Ed. 2d at 1051).
"Second, the court must determine 'whether the right was clearly
established.'" Ibid.
"Requiring the alleged violation of law to be 'clearly
established' 'balances . . . the need to hold public officials
accountable when they exercise power irresponsibly and the need
to shield officials from harassment, distraction, and liability
when they perform their duties reasonably.'" Wood, supra, ___
U.S. at ___, 134 S. Ct. at 2067, 188 L. Ed. 2d at 1051 (quoting
Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172
A-4796-12T3 30
L. Ed. 2d 565, 573 (2009)). Courts have noted that the
"dispositive inquiry" on this issue "'is whether it would [have
been] clear to a reasonable officer' in the agents' position
'that [his] conduct was unlawful in the situation [he]
confronted.'" Ibid. (quoting Saucier, supra, 533 U.S. at 202,
121 S. Ct. at 2156, 150 L. Ed. 2d at 281).
Applying that test here, we conclude that Steet is not
entitled to qualified immunity. The detective's own testimony
establishes, unequivocally, that his warrantless entry into
Brown's home without consent or exigent circumstances violated
her rights under our State Constitution, satisfying the first
prong. As to the second prong, the law is well established that
even when police have probable cause that a home contains
evidence of a crime, they are not permitted to enter the home,
or, indeed, put a foot in the door, without exigent
circumstances not the product of unreasonable investigative
conduct. Kirk, supra, 536 U.S. at 638, 122 S. Ct. at 2459, 153
L. Ed. 2d at 603; Welsh, supra, 466 U.S. at 749, 104 S. Ct. at
2097, 80 L. Ed. 2d at 743; Lewis, supra, 227 N.J. Super. at 594
95. Accordingly, as to Detective Steet, we remand for a trial
on damages.

Outcome: Affirmed in part; reversed in part; and remanded for
further proceedings not inconsistent with this opinion. We do
not retain jurisdiction.

Plaintiff's Experts:

Defendant's Experts:

Comments: