Consent to Search Home for Drug Paraphernalia Unlawfully Obtained after Traffic Stop

State v. Brown blog post 2 of 4

Appellate Docket No.: A-4938-18T1

Decided June 11, 2020

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark.

In an unpublished opinion, the Appellate Division of New Jersey reversed a judgment of conviction after a motion to suppress was denied.  Consent was unlawfully obtained after getting consent from a motorist to search his home.

In State v. Brown, the defendant was stopped by police for failing to stop at a stop sign.  The defendant was asked the exit the vehicle after officers smelled raw marijuana emanating from the vehicle.  Upon exiting, the defendant admitted to possessing two bundles of heroin.  The officers placed the defendant under arrest, handcuffed him, and read him his Miranda warning.  Defendant consented to the search of his vehicle where officers recovered a bag of marijuana from the center console.

After defendant consented to the search of his vehicle, the officers requested and received consent to search his residence. Defendant was still in handcuffs when the officers drove him to his home and escorted him into the residence.  Officers searched his room and found drug paraphernalia. Officers searched a second room and defendant admitted that it was also his.  Finally in a third room, defendant consented to officers searching a safe which contained over 1,000 bags of heroin divided into twenty-one bricks.  The heroin in the safe had the same logo as the one in the defendant’s pocket.

The grand jury charged defendant with multiple crimes. The charges included first-degree operation of a facility for manufacturing heroin, N.J.S.A. 2C:35-4 (count one); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of heroin with intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with intent to distribute while within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (counts five and six); and fourth degree possession of drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3 (count seven).

Defendant moved to suppress, as the officers did not have a warrant to search his home.  The motion to suppress was denied and defendant appealed.  The Appellate Division, among other issues, analyzed whether a reasonable and articulable suspicion of criminal activity is needed for the officers to ask for consent to search a suspect’s residence.  Ultimately, the Appellate Division passed on deciding the issue on the merits, and overturned on other grounds discussed in another blog, but a further review of the case law included in the opinion is important.

In State v. Birkenmeier, 185 N.J. 552, 564 (2006), the Supreme Court identified—but did not resolve— whether Carty’s requirement of suspicion extends to a roadside request to search a motorist’s home. In Birkenmeier, the defendant was pulled over in his vehicle and asked for consent by the police officer to search his home after the officer found marijuana in the defendant’s car and arrested him. Id. at 557. The defendant argued the search of his home was unlawful because the request for consent to search was not preceded by probable cause. Id. at 563-64.

Although the Court did not rule directly on the issue, they assumed that the less stringent standard of reasonable and articulable suspicion would be used for requests for consent to search something other than a motor vehicle.

State v. Birkenmeier also supports the requirement of a reasonable and articulable of criminal activity before requesting for consent from a suspect to search their home.  Although it is unclear at this point as to whether the reasonable and articulable suspicion requirement extends to the home, it is important to note that at least for a motor vehicle stop, officers must have some sense of criminal activity before even asking to search the vehicle.

If police have searched your home or your vehicle without a warrant, contact an experience criminal defense attorney today. At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters and restraining orders like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any town in New Jersey including Borough of Clayton, Township of Deptford, East Greenwich Township, Township of Elk, Township of Franklin, Borough of Glassboro, Township of Greenwich, Township of Harrison, Township of Logan, Township of Mantua, Township of Monroe, Borough of National Park, Borough of Newfield, Borough of Paulsboro, Borough of Pitman, Township of South Harrison, Borough of Swedesboro, Township of Washington, Borough of Wenonah, Township of West Deptford, Borough of Westville, City of Woodbury, Borough of Woodbury Heights, and Township of Woolwich.

Related:

Police Search Home for Drug Paraphernalia After Motor Vehicle Stop