Search & Seizure In New Jersey

Law enforcement officers are trained to conduct legal search and seizure under a wide variety of circumstances. However, sometimes officers don’t follow the rules they’re required to comply with.

The best way to protect your rights in the event of an unreasonable search or seizure is, first of all, to know them. Here, we’ll discuss some common scenarios in which search and seizure is—and isn’t—lawful in New Jersey.

Lawful Search and Seizure in New Jersey

Search or seizure with a search warrant 

A search warrant is a legal document that gives law enforcement permission to search you and/or your property, as designated in the warrant.

Both federal and New Jersey law dictate that valid search warrants must:

• Be issued by an impartial magistrate or judge
• Be based on probable cause of a crime
• Detail the person and/or place to be searched
• List the types of items officers intend to seize

If officers wander into areas that aren’t listed on the search warrant, the search could be considered unreasonable. For example, if a warrant authorizes officers to search your home for bank fraud, they aren’t necessarily authorized to check your vehicle, too. 

Warrantless search and seizure in New Jersey

Television shows like NCIS have popularized the concept of search warrants, but a warrant isn’t always necessary for law enforcement to conduct a valid search. 

Officers may be authorized to conduct a warrantless search of your person, vehicle, property, or personal belongings in appropriate circumstances.

Contraband in plain view 

The Plain View Doctrine of the Fourth Amendment permits law enforcement officers to seize personal property without a warrant if: 

• There is probable cause to believe it is contraband
• The item is in plain view of an area the officer is authorized to be in
• The officer didn’t break any laws to see the property

For example, if a stolen car is easily visible in your driveway from the road, officers may reasonably seize it without a warrant. 

Probable cause 

Probable cause is a legal term indicating that enough evidence is available to easily convince someone that a suspect may have committed a crime (or hidden evidence of one). 

Law enforcement must be able to cite relevant facts and evidence—not a hunch or “gut feeling”—as the catalyst for any search based on probable cause. However, it’s possible for probable cause to exist even when you haven’t broken a law.

For example, imagine officers are searching for a suspect who committed an armed robbery with a knife while wearing a ski mask and you are pulled over for speeding near the location of the robbery and the officer notices a ski mask and knife in your backseat. In this situation, the officer may have probable cause to search your vehicle for the stolen property, with or without a search warrant.

Exigent circumstances 

In certain emergency situations known as exigent circumstances, New Jersey law enforcement doesn’t need a warrant or probable cause to conduct a search and seizure.

There is significant statutory and case law defining “exigent circumstances,” but the word “exigent” itself means “pressing” or “demanding.” These are situations when it would be impractical or too time-consuming to obtain a search warrant, and there is an immediate emergency or danger to address.

Some examples of exigent circumstances might include: 

• The enforcement officer has reason to believe their safety is in jeopardy
• A crime is in progress 
• Evidence may be destroyed
• Someone is in danger or requires medical assistance (also called the “community caretaking” exception)

Consent for a warrantless search 

Police don’t need a warrant, probable cause, or an exigent circumstance to search a person or property with a person’s consent. But many people aren’t aware that citizens have the right to refuse consent to a search. Worse still, officers often use dishonest tactics, like coercion or promises of leniency, to obtain “consent” for a search unethically.

When there’s a question as to whether or not consent was voluntary, the burden is on the government to prove it. 

If law enforcement can demonstrate the following, it may be difficult to assert that your consent to a search was coerced: 

• You were informed of your Fourth Amendment rights and understood them
• Miranda warnings were given and acknowledged

However, if any of the following factors were involved, your attorney could argue that consent was involuntary:

• You were already arrested and/or handcuffed at the time of consent
• The police threatened to obtain a search warrant
• The search was conducted before consent  

Protections Under the Fourth Amendment 

The Fourth Amendment to the United States Constitution reads as follows: 

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In other words, the Constitution protects U.S. citizens from unreasonable search and seizure, as well as arbitrary arrests. New Jersey’s Constitution echoes federal law and provides additional language, offering further protection from unreasonable search and seizure.  

Under these laws, you might think that stop and search seizures, highway traffic checkpoints, and other police stops that lead to a search or seizure are only valid if law enforcement possesses probable cause and a valid warrant. In reality, precedent from case law and judicial interpretations of the state and federal constitutions allow for extensive exceptions to the law.

This makes it difficult for the average person to determine whether a search is a valid search or violates the Fourth Amendment. 

Identifying if Your Rights Were Violated

New Jersey and federal law is nuanced and often open to interpretation, and very fact-specific based on individual experiences. Determining whether or not your rights were violated on your own can be difficult. Even if you believe criminal evidence against you stems from a valid search, you should contact a reputable attorney. 

As you consider the incident, ask yourself:

• Did officers harass or threaten you based on your gender, race, or sexuality? 
• Were you informed of the area to be searched and the items the officers were looking for? 
• Did an officer present you with a valid search warrant? 
• If the search began because of contraband in plain view, did the officer proceed to unzip your purse or open closets? 
• If you were pulled over, did the officer search your car based on a “feeling” rather than evidence? 
• Did the officer have reason to believe you were committing a crime? 

The answers to these questions won’t provide a black-and-white answer as to whether the search was lawful, but they serve as a starting point to discuss the matter with your attorney. 

How a Criminal Defense Attorney Can Help

Your criminal defense attorney may obtain the following documents to help clarify whether a search and seizure was lawful or not: 

• A copy of the search warrant 
• Any law enforcement affidavits in support of the search warrant
• A return and inventory of any items seized during the search 

These records, in addition to your side of the story and statements from witnesses, can help your attorney determine whether a search and seizure was lawful or not.

If the search, seizure, or arrest was unlawful, your attorney could push for criminal charges against you to be reduced or dismissed using the following legal doctrines.

Exclusionary rule 

The exclusionary rule states that any evidence obtained by unreasonable search or seizure can’t be introduced against a defendant at a criminal trial.

Rather than relying on the judge to exclude such evidence, you need an attorney to bring a motion to suppress this evidence. 

Fruit of the poisonous tree 

Evidence that law enforcement is only able to obtain due to other unconstitutionally seized evidence is considered “fruit of the poisonous tree” and is not admissible in court.

For example, imagine the police searched your car illegally and found a handwritten letter explaining the location of a stolen gun used for a robbery. Even if the police can locate the stolen gun because of the letter, neither the letter nor the firearm can be used against you in court. That is because the only reason the police located the stolen gun was because of the letter found during the illegal search of the car. 

Dughi, Hewit & Domalewski, a Defense Team You Can Trust

When you’re subjected to an unlawful search and seizure, it pays to understand your rights—and to secure an experienced criminal defense attorney to defend them.

Our knowledgeable criminal defense attorneys are prepared to engage in extensive investigation and fact gathering, ask tough questions of law enforcement and navigate the intricacies of the law on your behalf to protect your constitutional rights.

If you’ve been arrested and are facing indictment for a criminal offense in New Jersey state or federal court, time is of the essence. Contact us now to schedule your consultation.