STATE OF NEW JERSEY v. CHARLES BRYANT, JR.,

Certain core principles underpin our search and seizure

jurisprudence. Individual privacy rights, especially in the

home, are among the most protected. As Justice Robert L.

Clifford wrote for the Court, “we are not dealing with a mere

formality but with an underlying great constitutional principle

embraced by free men and expressed in substantially identical

language in both our federal and state constitutions.” State v.

Fariello, 71 N.J. 552, 559 (1976) (citation omitted). In the

present case, we must balance those important privacy interests

with the practical and safety concerns of law enforcement.

Specifically, we focus on the guidelines surrounding law

enforcement’s use of a warrantless “protective sweep” when

investigating allegations of criminal activity.

When a woman called 911 to report that her boyfriend had

struck her, officers were dispatched to the address she

provided. While two officers stayed with the woman, who was in

a car in a nearby parking lot, two other officers knocked on the

door of defendant Charles Bryant, Jr.’s home. When defendant

answered, an officer instructed him to take a seat on the couch.

As defendant followed this instruction, the officers entered.

One conducted a protective sweep of the apartment while the

other questioned defendant. All of this was done without

knowing the name of the woman’s alleged attacker or defendant’s





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name, and without any indication that there were either other

people or any weapons present in the apartment.

Under such circumstances, we find that the law enforcement

officers did not adhere to the rigorous standards for proceeding

without a warrant under the protective sweep doctrine.

Accordingly, we hold that the evidence obtained as a result of

their impermissible search must be suppressed. We therefore

reverse the judgment of the Appellate Division and remand the

matter to the trial court for further proceedings consistent

with this opinion.

I.

We glean the following facts from the testimony given by

witnesses at defendant’s suppression hearing. On January 27,

2013, just before 3 a.m., officers from the Plainsboro Police

Department were dispatched to respond to a report of domestic

violence. A woman, via a 911 call, frantically reported that

she had been assaulted and that she was outside in her vehicle;

she did not give her name or her attacker’s, but did supply an

address.

Patrolmen Schroeck and McCall were in the first two cars to

arrive at the scene, and they proceeded directly to the

apartment. Corporal Newbon and Patrolman Lapham, who were in

the third vehicle to arrive, encountered a woman in a car in the

parking lot. When Newbon approached her to ask what was going





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on, he discovered that she was the caller. He also noted that

she was intoxicated, crying, and excited. He had trouble

obtaining information from the woman, who was incoherent and had

scratches and marks on her face. Eventually, the woman told

Newbon that she had been attacked by Charlie Bryant, her

boyfriend. She did not indicate the number of people in the

apartment or whether there were any weapons inside. Newbon then

left the woman with Lapham and went to the apartment to

determine what was happening there.

When Newbon arrived at the apartment, he found that

Schroeck and McCall had already entered. McCall was with

defendant, who was seated on the couch, and Schroeck called to

Newbon from the back bedroom. Schroeck testified that he and

McCall, who had been told only the address of the apartment,

knocked on the door when they arrived. According to Schroeck,

defendant answered after about a minute. McCall then instructed

defendant to sit on the couch, which defendant did, and both

officers entered the apartment. While McCall questioned

defendant, Schroeck conducted a protective sweep of the

apartment, searching the kitchen, bathroom, bedroom, and bedroom

closet –- all locations that potentially could harbor another

person.

Schroeck, whose testimony the trial court found forthright,

stated that it is his experience to conduct protective sweeps





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and that he did so for officer safety, because it was not known

whether there were any people or weapons in the apartment.

Schroeck added that he was particularly interested in ensuring

that no one was hiding in the apartment because domestic

disturbances are generally very emotional.

While searching the bedroom, Schroeck detected an

“overwhelming odor” of marijuana coming from the closet.

Peering into the closet, Schroeck saw a Ziploc bag with green

vegetation that he believed to be marijuana protruding through a

hole in a shoe box on a shelf just above eye-level in the

closet. When Newbon heard Schroeck call to him and entered the

bedroom, he also detected the odor of marijuana. Newbon ordered

the marijuana seized and had defendant arrested and removed from

the apartment.

After defendant was removed, officers locked down the

apartment while awaiting a search warrant. The warrant was

issued, and the subsequent search yielded multiple items of

contraband including a Tec-9 9mm assault weapon, approximately

fifty-five grams of marijuana, and marijuana packaging

materials.

Defendant was indicted on March 6, 2013, and charged with

fourth-degree possession of a controlled dangerous substance

(“CDS”), N.J.S.A. 2C:35-10(a)(3); third-degree possession with

intent to distribute, N.J.S.A. 2C:25-5(a)(1) and (b)(11);





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second-degree unlawful possession of an assault firearm,

N.J.S.A. 2C:39-5(f); and second-degree possession of a firearm,

N.J.S.A. 2C:39-4.1. On the same date, defendant was separately

indicted on a charge of second-degree certain persons not to

possess a firearm, N.J.S.A. 2C:39-7(b).

Defendant moved to suppress all of the evidence seized from

the apartment as fruit of an illegal search. After a

suppression hearing, the trial court denied defendant’s motion.

The trial court found that the officers were lawfully present in

the apartment because they were looking for the suspect in a

domestic violence case where the victim presented physical signs

of injury. Moreover, the trial court reasoned that, because the

officers did not know if the suspect was the man who answered

the door or was somewhere else inside the apartment, Schroeck

had a reasonable and articulable suspicion that the area to be

swept could be harboring an individual posing danger. With

those findings, the trial court held that the protective sweep

doctrine obviated the need for a warrant. The trial court also

held that the marijuana discovered during the protective sweep

was properly seized under the plain view doctrine.

Defendant appealed the denial of the motion to suppress,

arguing that the search was illegal. In an unpublished opinion,

an Appellate Division panel affirmed the denial of the motion to

suppress, on substantially the same grounds.





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We granted defendant’s petition for certification, limited

to the issue of whether the protective sweep of defendant’s

residence was lawful. State v. Bryant, 223 N.J. 162 (2015). We

also granted the American Civil Liberties Union of New Jersey

(“ACLU”) leave to appear as amicus curiae.

II.

Defendant makes two primary points: first, that entry of

the officers into the apartment was unjustified because they did

not have defendant’s consent to enter; and second, that the

protective sweep was pretextual in that the officers lacked a

reasonable and articulable suspicion that the area to be swept

could be harboring an individual posing danger.

The State’s justification for its exception to the warrant

requirement essentially relies on two grounds: (1) the police

were lawfully present in defendant’s apartment because in mid

winter it was unreasonable to have any conversation with

defendant outside; and (2) the police had good cause to perform

a protective sweep in this matter because of the danger often

inherent in domestic violence calls coupled with the officers’

incomplete knowledge of any potential danger awaiting them. In

combination, the State contends, those factors created a

reasonable and articulable suspicion that the apartment might

harbor a hidden, dangerous person.





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The ACLU, as amicus curiae, disputes the State’s rationale.

The ACLU asserts the officers were not lawfully present in

defendant’s apartment, on the grounds that the officers had no

consent to enter the apartment and were not facing exigent

circumstances. The ACLU adds that mere uncertainty is

insufficient to establish a reasonable and articulable suspicion

that the apartment was harboring a hidden, dangerous person.

III.

We review the relevant case law relating to search and

seizure. The nearly identical language of the Fourth Amendment

of the United States Constitution and Article I, Paragraph 7 of

the New Jersey Constitution guarantees “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.” U.S.

Const. amend. IV; N.J. Const. art. I, ¶ 7. On numerous

occasions, we have considered “New Jersey’s unique interests and

values” and in doing so, have “construed Article I, Paragraph 7

[of the New Jersey Constitution] to afford our citizens greater

protection against unreasonable searches and seizures than

accorded under the Federal Constitution.” State v. Johnson, 193

N.J. 528, 541 (2008) (citing State v. Eckel, 185 N.J. 523, 537

38 (2006)). Indeed, we “accord the highest degree of protection

to privacy interests within the home,” Johnson, supra, 193 N.J.

at 532, because “[t]he sanctity of one’s home is among our most





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cherished rights,” State v. Frankel, 179 N.J. 586, 611, cert.

denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004).

Toward that end, “[o]ur constitutional jurisprudence

expresses a clear preference for government officials to obtain

a warrant issued by a neutral and detached judicial officer

before executing a search.” Edmonds, supra, 211 N.J. at 129

(citing Frankel, supra, 179 N.J. at 597-98). “[A]ll warrantless

searches or seizures are ‘presumptively unreasonable.’”

Johnson, supra, 193 N.J. at 552 (quoting State v. Elders, 192

N.J. 224, 246 (2007)). As a result, “when the police act

without a warrant, the State bears the burden of proving by a

preponderance of the evidence not only that the search or

seizure was premised on probable cause, but also that it ‘f[ell]

within one of the few well-delineated exceptions to the warrant

requirement.’” Ibid. (alteration in original) (quoting State v.

Pineiro, 181 N.J. 13, 19-20 (2004)).

One such exception is the protective sweep doctrine. State

v. Davila, 203 N.J. 97, 125 (2010). The Supreme Court of the

United States first recognized this exception in the context of

an arrest in Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct.

1093, 1094, 108 L. Ed. 2d 276, 281 (1990). There, the Court

found that protective sweeps are appropriate when necessary for

officer safety reasons so long as the sweep is “narrowly





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confined to a cursory visual inspection of those places in which

a person might be hiding.” Ibid.

Twenty years later, this Court extended the protective

sweep doctrine to non-arrest settings. Davila, supra, 203 N.J.

at 125–26. Recognizing the practical concerns and danger that

law enforcement officers are faced with, we held in Davila that,

when relying on the protective sweep doctrine to obviate the

need for a warrant, the State has the burden of proving the

following: “(1) law enforcement officers are lawfully within the

private premises for a legitimate purpose, which may include

consent to enter; and (2) the officers on the scene have a

reasonable [and] articulable suspicion that the area to be swept

harbors an individual posing a danger.” Id. at 125. The test

is conjunctive; the failure of either element is fatal to the

application of the exception. See ibid.

In the context of the reasonable and articulable suspicion

prong, we have held that courts will look at the totality of the

circumstances to determine if there is an “individualized,

rather than generalized, suspicion.” Id. at 129. There is no

mathematical formula to determine what amount of suspicion is

reasonable. Pineiro, supra, 181 N.J. at 27. Visual or auditory

cues are certainly sufficient to establish that another person

may be present. Davila, supra, 203 N.J. at 128. In the absence

of visual or auditory signs, courts may consider factors such as





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preexisting police knowledge that a specific individual presents

a danger or has a propensity for violence, some sort of surprise

while the police are on scene, overly nervous conduct, and

inconsistent or dishonest responses. Id. at 129 (citations

omitted). Those signs must lead an officer to believe not only

that another individual is present, but also that the other

individual presents a danger to officer safety. Ibid.

Reasonable and articulable suspicion is critical and, therefore,

“[a] seizure cannot . . . be justified merely by a police

officer’s subjective hunch.” Id. at 128 (quoting Pineiro,

supra, 181 N.J. at 27).

When the seizure of evidence is the result of the State’s

unconstitutional action, the principal remedy for violation of

the constitutional right to be free from unreasonable searches

and seizures is exclusion of the evidence seized. State v.

Burris, 145 N.J. 509, 520 (1996). The exclusionary rule is not

a “remedy,” in the classic sense of the term; rather, its

purpose is to deter future illegal conduct by the State. State

v. Novembrino, 105 N.J. 95, 137–38 (1987) (citing United States

v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 619, 38 L. Ed. 2d

561, 571 (1974)). In order to achieve the full deterrent effect

of the exclusionary rule, evidence that is seized in a search

incident to the original unlawful search is also excluded under





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the fruit of the poisonous tree doctrine. State v. Gibson, 218

N.J. 277, 298 (2014).

IV.

In applying these principles to analyze whether the trial

court erred in the present case by invoking the protective sweep

exception to the search warrant requirement, we “uphold the

factual findings underlying the trial court’s decision so long

as those findings are supported by sufficient credible evidence

in the record.” State v. Brown, 216 N.J. 508, 538 (2014)

(quoting Elders, supra, 192 N.J. at 243). However, we do “not

defer . . . to a trial or appellate court’s interpretation of

the law,” which we review de novo. State v. Vargas, 213 N.J.

301, 327 (2013).

Here, there is sufficient evidence in the record to support

the trial court’s factual finding that Patrolmen Schroeck and

McCall lacked information when approaching the apartment,

including the name or description of the assailant, the number

of parties involved, or whether there were weapons involved.

Although we accept these findings as true, we cannot conclude

from these findings that a protective sweep was justified.

Rather, we find that Schroeck’s suspicion, at most, was a

subjective hunch. See Davila, supra, 203 N.J. at 128.

Schroeck did not testify that any visual or auditory signs

existed that led him to believe there was another person in the





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apartment. Cf. United States v. Taylor, 248 F.3d 506, 514 (6th

Cir.) (holding that shuffling noises heard before officers

entered apartment were sufficient to establish reasonable and

articulable suspicion), cert. denied, 534 U.S. 981, 122 S. Ct.

414, 151 L. Ed. 2d 315 (2001). Moreover, there is no evidence

that Schroeck knew defendant. Cf. United States v. Gould, 364

F.3d 578, 591-92 (5th Cir.) (holding that an officer’s prior

knowledge of the suspect contributed to the totality-of-the

circumstances analysis), cert. denied, 543 U.S. 955, 125 S. Ct.

437, 160 L. Ed. 2d 317 (2004). Nor is there any evidence that

the officers were suddenly surprised once inside the apartment,

that defendant appeared overly nervous, or that his behavior

suggested the presence of another person. Cf. United States v.

Caraballo, 595 F.3d 1214, 1225 (11th Cir. 2010) (holding that

overly nervous conduct, combined with inconsistent or dishonest

answers, could lead to reasonable and articulable suspicion).

In fact, Schroeck conducted the sweep without waiting to hear

defendant’s answer to McCall’s questions. There was therefore

no opportunity for Schroeck to determine whether any of

defendant’s statements were inconsistent or dishonest.

Instead of relying on any situation-specific indication

that another person might be present, Schroeck testified that it

was “generally [his] experience . . . to conduct a protective

sweep to make sure there are no surprises.” Additionally,





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Schroeck testified that it was usually “possible” that more than

two people were involved in domestic disturbances. Those

statements by Schroeck amount to nothing more than a hunch, not

a reasonable and articulable suspicion.

We thus conclude that there is no record of a reasonable

and articulable suspicion propelling the protective sweep in

this case, without which the authority for the protective sweep

dissolves. As such, the evidence seized as a result of the

warrantless search should have been suppressed. We need not

reach the question of consent to enter except to say on these

facts, silence does not equate to consent to enter.

V.

In reaching this conclusion, we are mindful that the

privacy interests discussed must be viewed in light of the daily

difficulties facing law enforcement officers. We recognize that

officers are faced with the difficult task of running toward

danger, often with little to no information about the danger

they face.

This is especially true in the context of domestic violence

calls -- some of the most dangerous calls officers will face.

Family violence researchers report that “more police officers

die answering family disturbance calls . . . than die answering

any other single type of call.” Joel Garner & Elizabeth

Clemmer, Nat’l Inst. of Justice, U.S. Dep’t of Justice, Danger





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to Police in Domestic Disturbances -- A New Look, Research in

Brief 2-3 (Nov. 1986),

http://files.eric.ed.gov/fulltext/ED295090.pdf (citing one

report indicating twenty-two percent of all police fatalities

occur during response to domestic violence disputes).

Domestic violence is a serious problem in New Jersey. Our

Legislature addressed this problem by passage of the Prevention

of Domestic Violence Act (“PDVA”), N.J.S.A. 2C:25-17 to -35.

Recognizing the dangers posed by domestic violence calls, the

Legislature has mandated that officers receive training “on the

handling, investigation and response procedures concerning

reports of domestic violence.” N.J.S.A. 2C:25-20(a).

The PDVA also includes a mandatory arrest provision. See

N.J.S.A. 2C:25-21(a). However, that provision must always be

read and construed with deep respect for, and adherence to, the

constitutional underpinnings of our search and seizure

protections. See, e.g., State v. Younger, 305 N.J. Super. 250,

258 (App. Div. 1997) (underscoring that the PDVA is subject both

to the Fourth Amendment and “to the New Jersey constitutional

guarantee against unreasonable searches and seizures”). And, as

we have held in the past, hunches or lack of information are

insufficient to satisfy the need for reasonable and articulable

suspicion in countermanding the search warrant requirement and

defeating the right of New Jersey citizens to be secure in their





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homes, free of unreasonable searches and seizures. Davila,

supra, 203 N.J. at 128.

In the present case, the officers might have obtained the

information they needed by asking defendant preliminary

questions, such as: “Were you just in an argument with your

girlfriend?” and “Is there anyone else here in the apartment?”

Had the officers asked those, or similar, questions and waited

for defendant’s response, their fears could have been allayed or

a reasonable and articulable suspicion formed. Patrolman

Schroeck’s failure to pose these basic questions, or wait for a

response to the other officer’s questions, reduced his actions

to, at best, nothing more than acting on a hunch.

Officers’ diligence in asking the correct questions and

assessing the response or the responder’s demeanor before

conducting a protective sweep of the home ensures the proper

balance between the rights of citizens to be secure in their

homes and the need for law enforcement to protect themselves in

these dangerous situations.

The officers here lacked reasonable and articulable

suspicion that another party was present, much less that another

party posed a danger to officer safety. Because there was no

evidence of reasonable and articulable suspicion, the State

failed to meet its burden of presenting evidence sufficient to





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establish an exception to the warrant requirement. See Johnson,

supra, 193 N.J. at 552.

This failure fatally taints the “plain view” evidence

seized from the initial limited protective sweep search of

defendant’s apartment. Even if the marijuana was in plain view

-- a point on which we need not rule in this case -- it was seen

only in the course of an illegal protective sweep. The sweep’s

illegality infected both the basis for the follow-up search

warrant and the evidence seized under that warrant as “fruits of

the poisonous tree.” The snowball effect of the illegal

searches and seizures demands that all the evidence seized from

initial sweep to final search be excluded and suppressed.