The Law Office of Jennifer Marshall, Esq

“Protective Sweeps” Who is it really protecting?

July 14, 2010 will go down as the day the New Jersey Supreme Court gave the police the authority to search a home, even if the police have not arrested anyone, if they can point to dangerous circumstances that develop while the officers are on the scene.

In State v. Davila, just unanimously decided by our high court, the Court reasoned that a protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest.  The police may conduct a protective sweep only when (1) the police are lawfully within the premises for a legitimate purpose, which may include consent; and (2) the police on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger.

The sweep must be conducted quickly, and restricted to areas where the person posing a danger could hide.  The effect of this decision has yet to be seen. There is going to be plenty of litigation ahead to determine on a case by case basis what is considered a protective sweep.

Give our office a call today for more information.