Your home is your castle. The U.S. Constitution protects you and your home from unreasonable search and seizure. But there are circumstances when police can enter your home regardless of your wishes – even without a warrant.
We advocate cooperating with police in most situations. You should never challenge police with a weapon or try to block the police from entering. However, it is also important to understand your legal rights when it comes to the police entering your home in New Jersey. It is especially important if you face criminal charges before or after police come to your home.
If police have entered your apartment or house without your permission to conduct a search or to arrest you or a loved one, the defense attorneys at the Law Offices of Jonathan F. Marshall can help you. Our New Jersey criminal defense attorneys are well-versed in N.J. search and seizure law. We offer a free case review to discuss your situation. If you are facing criminal charges, A criminal defense lawyer is available anytime, 24/7 at 877-534-7338.
Common Scenarios Where Police May Enter Your Home
Article I, Section 7 of the New Jersey State Constitution provides protection identical to that of the 4th Amendment of the U.S Constitution, stating that:
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 warrant shall be issued except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.
This is not protection from all searches and seizures. It applies only to searches done by the government or the police. In theory, to legally enter your home, police need one of these:
- A valid search warrant. To obtain a search warrant, the officer must present facts that establish grounds for issuing the warrant, either through direct testimony or an affidavit. Under New Jersey’s Rules of Court, grounds exist when there is probable cause to believe that a search will yield illegally obtained property or property used in violation of the law. A warrant may be obtained through the state Judiciary’s computer system, in person, or by telephone or other means of electronic communication.
A search warrant must state the date it was issued, identify the property to be seized, name or describe the person or place to be searched, and specify the hours when it may be executed. The warrant should also state the name of each person whose affidavit or testimony was taken for it to be issued.
- A valid arrest warrant. To obtain an arrest warrant for an initial charge, a law enforcement officer must file a complaint warrant or may provide sworn testimony to a judge by telephone, radio, or other means of electronic communication. Contents of the complaint warrant, testimony, or affidavit must establish probable cause for issuing an arrest warrant. A judge who is satisfied that probable cause exists may issue the warrant. The warrant also must state the defendant’s name, or if it is unknown, any name or description that identifies the defendant with reasonable certainty, as well as the date, time, complaint number, basis for the probable cause determination, and any other specific terms of the authorization to arrest the defendant. A warrant will order the defendant to be arrested and remanded to the county jail pending a determination of conditions of pretrial release.
- Consent. Police may enter and search a residence or structure without a warrant if they have consent to do so. The person who provides consent must have explicit authority or apparent authority to do so. The person who provides consent can also limit or attach conditions to the search or withdraw consent at any time.
- Probable Cause and Circumstances. If the police have probable cause to believe a crime has been or is about to be committed, they may enter your home without a warrant. “Probable cause” is generally defined as a reasonable belief. Exigent circumstances refer to situations in which a reasonable person would think that prompt action was necessary to prevent physical harm to someone, stop the destruction of evidence, or prevent a suspect’s escape.
If a police officer at your door says they have a search or arrest warrant, you are required to open the door. The officer should show or hand you the warrant before entering your home.
New Jersey law requires police to enter a residence to locate and protect victims of domestic violence or to address a fire in the absence of firefighters. Police are also permitted to enter a home to come to a citizen’s assistance as part of their role as community caretakers.
Police may also enter a residence when contraband, evidence of a crime, or items otherwise subject to seizure are in plain view.
What To Do If Police Attempt to Enter Your NJ Home
If police enter your home without your permission or a warrant or circumstances that require them to act, their entry is presumed to be unreasonable under both federal and New Jersey law. However, police entering your home will have little interest in your protestations about Constitutional law or seizure rights in New Jersey.
If police enter your home without your permission and have not presented a warrant, you should state clearly that you do not consent to their presence in your home. Then, calmly follow their instructions or stand aside and make mental notes of what they do or say. If you are arrested, decline to answer questions and ask to be allowed to contact a lawyer.
If you are arrested based on police entering your home in violation of your rights, an experienced criminal defense attorney at the Law Offices of Jonathan F. Marshall can file a motion on your behalf to suppress evidence obtained in an unreasonable search and seizure. At that point, the burden is on prosecutors to establish the legality of the search.
Challenging an Unlawful Entry by Police in New Jersey
There is extensive case law in New Jersey pertaining to search and seizure. As new cases arise, courts may narrow, broaden, or create new interpretations of the law. There is always reason to review the circumstances of an arrest that involved police entering a home and seizing evidence.
Once you have engaged a criminal defense lawyer from the Law Offices of Jonathan F. Marshall, we can obtain statements from you and any witnesses and investigate how police entering your home without consent led to your arrest. If a warrant is issued, we will review it and examine the reasons for probable cause to search your home or arrest you.
Unfortunately, “probable cause” is a low standard, and courts enjoy broad flexibility to find that a search or arrest warrant is valid. A more promising approach to having a search warrant ruled invalid is to show that, to obtain the warrant, the police officer knowingly and intentionally swore to false information or did so with reckless disregard for the truth or without investigating allegations that should have been questioned.
A suppression motion to argue that a search warrant was not valid is heard in a “Franks Hearing,” so named for the landmark case of Franks v. Delaware, 438 U.S. 154 (1978). In New Jersey, another case, State v. Goldberg 214 N.J. Super 401, 408 (App Div. 1986), says that no Franks Hearing is necessary when there is sufficient unchallenged information to establish probable cause apart from the challenged statement.
The defendant who asks the court to rule invalid a search warrant and evidence found in the search must challenge enough of the warrant to persuade the judge to hear their evidence. In the Franks Hearing, they must convince the judge that the police acted in bad faith when they sought the search warrant. If the judge is so convinced, they must rule that evidence found during an illegal search is the fruit of the poisonous tree and must be suppressed.
If we cannot get the court to suppress the search and seizure of evidence, then our criminal lawyers will develop a strategy for defending you against the criminal charges you face. If it is reasonable to enter a plea agreement in exchange for a lesser charge and lighter sentence, we will discuss that option with you. If you are a first offender facing nonviolent charges, we may be able to arrange a plea that leads to Conditional Discharge probation or Pre-Trial Intervention (PTI).
If a trial is necessary, our New Jersey criminal defense attorneys will develop a defense that leads to the best available outcome for you.
Contact Our New Jersey Defense Attorneys Today
The criminal defense attorneys at the Law Offices of Jonathan F. Marshall can help you challenge an arrest made after an illegal entry of your home by New Jersey police. If there was a search warrant, we may be able to challenge its validity and have evidence against you thrown out. Because our criminal lawyers have decades of experience in the criminal justice system and have built professional relationships in courts across New Jersey, we can make sure that your side of the case is duly considered by the court.
Contact the Law Offices of Jonathan F. Marshall at 877-534-7338 as soon as possible for a free consultation about your case. We have offices throughout New Jersey and are ready to meet with you anywhere in the state, including in Monmouth County, Union County, Bergen County, Morris County, Mercer County, Passaic County, Middlesex County, Ocean County, Essex County, and Hudson County.
