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When Can New Jersey Police Conduct a Search Without a Warrant?

February 3, 2023 | Posted In Criminal Law |

The Fourth Amendment to the U.S. Constitution protects citizens against unreasonable searches and seizures. Under the Fourth Amendment, the police must obtain a warrant to conduct a search in many cases. However, there are several exceptions to the warrant requirement, and if the police perform a valid search without a warrant, prosecutors can use any evidence seized during the search to prove a defendant’s guilt in court.

5 Exceptions to the Warrant Requirement for Police Searches in New Jersey

So, when isn’t a warrant required for the police to conduct a search? Here are five exceptions to the Fourth Amendment’s warrant requirement:

1. Consent

If you consent to a search, then the police can search without a warrant. While you are never required to agree to a search, many New Jersey residents are not aware of this fact—and the police are not required to tell you. Even if you are unaware of your right to refuse consent (or if you feel pressured to give your consent), once you give your consent, the police can lawfully search your person, home or place of business.

But there are some exceptions. At the federal level, for example, the U.S. Supreme Court has held that in order for consent to be truly voluntary, it must be given without coercion and with knowledge of the right to refuse. When there is a question as to whether a suspect’s consent is voluntary, the Supreme Court requires consideration of factors including:

  • Whether the suspect was already in custody at the time he or she allegedly gave consent
  • Whether the suspect was handcuffed when he or she gave consent
  • Whether the suspect had refused consent previously
  • Whether the police had threatened to seek or obtain a search warrant
  • Whether the suspect knew there was evidence that the police would likely obtain during a search

Additionally, under New Jersey law, there are certain circumstances in which consent is considered to be invalid even if given voluntarily. For example, if the police obtain consent after initiating a search or detaining a suspect illegally, then the suspect’s consent is considered void based on the doctrine of “fruit of the poisonous tree.”

In cases of consent (or alleged consent), the scope of the search can also be an issue. Even if a suspect’s consent is valid, the scope of this consent can be limited by either: (i) the police officer’s language used when requesting consent; or (ii) the language of the consent itself. For example, several courts have held that consenting to the search of a vehicle does not include consent to the search of a locked container located inside the vehicle. 

Additionally, once consent has been legitimately given, the consent may be limited in scope or even revoked by the person giving consent. The consent can only include those items or areas which are in the custody and control of the person giving consent. 

2. Plain View

If evidence is in plain view, the police do not need the warrant to seize the evidence. For this “plain view” exception to apply, the police must be able to see the evidence from a place that they are legally entitled to be. For example, if the police can see your front porch from the street, then they do not need the warrant to seize evidence on your porch that was visible from the road.

For the “plain view” exception to apply, it must also be “immediately apparent” that any items in plain view are contraband or evidence. This means that the police must have probable cause to believe that an item they see in plain view falls into one of these two categories. If an item in plain view requires a closer inspection to determine whether it may possibly be useful in court, then the exception generally will not apply.

The U.S. Supreme Court initially established the test for determining whether a warrantless search satisfies the “plain view” exception under the Fourth Amendment, and, originally, this test had three elements. To qualify under the “plain view” exception, the Supreme Court originally required that: (i) the observation of the seized item must be made from a permissible vantage point; (ii) the discovery of the seized item must be inadvertent; and (iii) it must be immediately apparent that the seized item is contraband or evidence of a crime. However, the Supreme Court eliminated the second element of the test (inadvertent discovery) in a subsequent decision.

As a result, if the police spot contraband or evidence during a lawful search, they can seize the evidence under the “plain view” exception. More importantly, the police can actively look for items in plain view during a traffic stop or arrest (or during the execution of a search warrant). This means that the police can look through the windows of your car, look behind you when you open the door, survey the area surrounding your home or business, and seize any contraband or evidence they identify when doing so.

However, identifying an item in plain view does not legitimize an otherwise unlawful search. For example, let’s say the police profile you and conduct an illegal traffic stop. If the police see an open alcohol container or other contraband in your cup holder or passenger seat, the plain view exception does not apply in this scenario. The police cannot use an illegal traffic stop as the basis for collecting evidence that is in plain view.

With that said, even if the police stop, search or arrest you illegally, there is still a good chance that you will need to fight to keep the government’s illegally obtained evidence out of court. In the majority of circumstances, police will not admit their mistakes, or they may believe that their conduct was lawful. Prosecutors won’t necessarily know what happened during a traffic stop, and they may be willing to move forward with illegally obtained evidence—placing the burden on a defendant to assert his or her legal rights. As a result, even if you believe that the police illegally obtained evidence against you, it is still extremely important that you hire an experienced defense lawyer to represent you.

3. Hot Pursuit

If the police are chasing a suspect, they are entitled to continue their chase onto private property without a warrant. If this “hot pursuit” leads them to a location where evidence is in plain view, then they can seize the evidence and make an arrest. 

But, the limitations on the “plain view” exception discussed above (among others) still apply.

4. Search Incident to Arrest

The police can also search without a warrant when the search is “incident to an arrest.” If the police arrest you with probable cause, they can search your person and your immediate surroundings to ensure their own safety and prevent the destruction of evidence.

Similar to the “plain view” and “hot pursuit” exceptions, this exception to the search warrant requirement is also ripe for abuse. Police officers may claim that they were acting to ensure their own safety or prevent the destruction of evidence when in fact they had no such concerns at the time of conducting a search.

As a defendant in New Jersey’s criminal justice system, this is a challenge that can be difficult to overcome, although body camera evidence (among other forms of evidence) can help in some cases. If you believe that the police conducted an unlawful search incident to your arrest, this is something you will want to discuss with your defense lawyer, and you should prepare notes so that you can provide your lawyer with as many details as possible. 

5. Investigatory Stop

In New Jersey, the police can conduct an investigatory stop (more commonly known as a “stop and frisk”) if they have reasonable suspicion that a person has committed, or is about to commit, a criminal offense. If an investigatory stop leads to the discovery of weapons, drugs, or other evidence, this can justify an arrest (and search incident to arrest) as well.

But, like the other exceptions discussed above, limitations apply. For example, when frisking suspects, the courts have held that the police are generally restricted to conducting a pat-down on the outside of the suspect’s clothes. In the case of State v. Privott, 203 N.J. 16 (2010), for example, the court ruled that the police violated the suspect’s rights by lifting up his shirt and observing drugs in his waistband.

Additionally, when it comes to seizing items during an investigatory stop, the courts have held that the police are restricted from reaching inside a suspect’s clothes if they are certain that an item felt during a frisk is not a weapon. Typically, to seize such items, the police must obtain the suspect’s consent or a warrant unless another exception applies (i.e., if the item falls out of the suspect’s pocket during a chase). Not accurate State v. Tucker. What about plain feel?

Talk to a New Jersey Defense Lawyer About Your Legal Rights

There are various other scenarios in which the police can conduct warrantless searches as well (such as exigent circumstances, public safety searches (i.e., 911 call and police go to the location, and no one answers the door), limited searches for safety, etc.). 

If you are facing criminal charges in New Jersey and the police conducted a warrantless search, you should speak with a lawyer about your legal rights. Call 877-435-6371 or contact us online now for a confidential consultation.

Over 20 attorneys at HCK have extensive experience in defending criminal cases, as they were former assistant prosecutors and/or police officers for a combined total of over 600 years of law enforcement experience. You can find out more about them on our site, and you can call Managing Partner Ron Helmer on his cell phone at 609 685-0665.

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