Contact Us for a Free Case Evaluation (732) 965-3404

Villani & DeLuca Divorce Blogs

Eagleswood Domestic Violence Attorney- Protective Sweep Exception in Domestic Violence Cases

Posted by Vincent Deluca | Jan 21, 2020 | 0 Comments

The U.S. Constitution's Fourth Amendment prohibits the search and seizure of private property by law enforcement without a warrant.  The requirement for a warrant signed by a judge applies to a wide array of properties including one's home, car and even cell phone.  There is one exception to this requirement, which is based on the concept of the “plain-view doctrine”.  In short, if the police can easily see suspicious or dangerous circumstances from a reasonable vantage point, e.g., drug paraphernalia in the center console of your car, they can go ahead and conduct a “protective sweep” without a warrant.

The “protective sweep” exception can be applied to a variety of threatening situations, including domestic violence incidents.  Police must, however, have consent to enter from one of the involved parties, or have a clear, tangible reason to suspect that the area in question is harboring dangerous individuals and/or substances.  In November 2016, the New Jersey Supreme Court issued a ruling in the case of State-v-Bryant, which centered around the issue of an individual's constitutional rights versus the need to protect victims of domestic violence.  In Bryant, the victim had called the police to report that she had been assaulted by her boyfriend.  The victim, who was waiting in her car when police arrived, was heavily inebriated, making it difficult for police to obtain information, such as her boyfriend's name and whether there were any weapons inside the home.

One officer made the decision to conduct a “protective sweep”, citing that he routinely conducted such sweeps to ensure that there were no weapons in the house, or any other individuals who were at risk.  During this particular search,, the officer smelled marijuana from a closet, which led him to where the defendant was hiding.  They obtained a warrant to search the house for other drugs and did find a substantial quantity of marijuana, packaging materials and an assault weapon.  The defendant sought to suppress the evidence at trial, arguing that it was obtained via a warrantless search, which was a violation of his Fourth Amendment rights.

The trial court denied his request, but the Supreme Court disagreed, stating that the police had neither consent from the involved parties, nor any clear reason to suspect that the residence was harboring a dangerous individual.  In essence, a mere suspicion or hunch, or even a preponderance of past experiences are not enough to conduct a protective sweep of an individual's private property.  This is an important ruling in respect to domestic violence laws, which tend to heavily favor any and all actions meant for the victim's protection.  However, an individual's privacy rights must be protected whenever possible, especially in highly charged and often confusing situations like domestic violence.  Because of the unique nature of New Jersey's domestic violence laws, it's imperative that you consult an attorney if you are involved in a domestic violence incident.  For more information, please speak with the attorneys of Villani & DeLuca, P.C.  

About the Author

Vincent Deluca

A founding member of Villani & DeLuca and has devotes the entirety of his practice to family law. Mr. DeLuca Esq. is a trained divorce mediator and collaborative divorce attorney

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Vincent DeLuca, Esq.

As a founding partner at Villani & DeLuca, Vincent DeLuca is one of only a few Certified Matrimonial Law Attorney in Ocean County, New Jersey. Mr. DeLuca has helped many clients navigate the delicate details of their own divorce. Mr. DeLuca is also a trained divorce mediator and collaborative divorce attorney. Call today at (732) 965-3404 to speak to Mr. DeLuca or one of our experienced NJ Divorce Lawyers.

Menu