When Can Police Legally Make a “Protective Sweep” of Your Home Without a Warrant?

The 4th Amendment to the U.S. Constitution is one of your most important rights as a U.S. citizen, especially concerning criminal cases. Under this amendment, you have the right to be free from unreasonable searches and seizures. As a result, police officers generally must have a warrant before searching your person, vehicle, or home. Unfortunately, however, all too often, police officers perform warrantless searches that violate your rights, leading to criminal charges based on illegal searches. 

The Protective Sweep: An Exception to the Warrant Requirement 

The protective sweep is one example of an exception to the general legal principle that police must have a warrant to search your person, vehicle, or home. A protective sweep is ostensibly for police to ensure that they are not in danger. For instance, they can perform a protective sweep of your home without a warrant to ensure no dangers to them are present, such as another person with a weapon. Under legally valid circumstances, the protective sweep allows police to go into someone’s home and beyond that which is in plain view to determine any risks to their safety. 

U.S. Supreme Court Standard for Protective Sweeps During In-Home Arrests 

In Maryland v. Buie, 494 U.S. 325 (1990), the U.S. Supreme Court ruled that police officers can perform a protective sweep when arresting a person inside a home only under specific circumstances. For example, the police can search areas immediately adjacent to the arrest area as a precaution if they are areas from which someone could attack them. Furthermore, police can only look beyond those adjacent areas if that search is based on articulable facts that would cause a reasonably prudent officer to believe a threat exists.  

New Jersey Supreme Court Clarifies Some Boundaries on the Protective Sweep During an Arrest Outside the Home 

The New Jersey Supreme Court recently decided a pair of consolidated cases that place some restrictions on when police can conduct a protective sweep. The Court issued its opinion in State v. Christopher Radel (A-44-20) and State v. Keith Terres (A-45-20) on January 20, 2022. In that case, police officers, who had arrest warrants for their suspects, apprehended them outside homes. In Radel, the officer in charge ordered a protective sweep of the residence for officer safety, as there might be weapons and other persons in the residence. The officers observed weapons and drug paraphernalia during the sweep in plain view.  

Likewise, in Terres, the police made a protective sweep because they had arrested two other men who said that the person they were looking for might be inside the home. The man ultimately ran outside, and police arrested him. Nonetheless, police proceeded with the sweep and uncovered a hole in the wall big enough to hide a person. In addition, they found weapons in the hole. 

The trial courts denied the motions to suppress challenging the protective sweeps in each case. However, the Appellate Division found that the protective sweep in Radel was not warranted and constitutionally invalid but that the protective sweep in Terres was constitutionally justified. The Supreme Court agreed with the Appellate Division, finding the Radel sweep valid and the Terres sweep invalid.  

The Court held that “when an arrest occurs outside a home, the police may not enter the dwelling or conduct a protective sweep in the absence of a reasonable and articulable suspicion that a person or persons are present inside and pose an imminent threat to the officers’ safety.” The Court went on to list some factors that may indicate a protective sweep is proper: 

• Whether the police have information that others are in the home with access to weapons and a potential reason to use them or otherwise pose a dangerous threat 
• The imminence of any potential threat 
• The proximity of the arrest to the home 
• Whether the suspect was secured or resisted arrest and prolonged the police presence at the scene 

• Any other relevant circumstances 

Call Us for Legal Representation in Your Criminal Case 

When you or a loved one is facing criminal charges, you likely have many questions and concerns. You can rely on the criminal defense attorneys at Rosenberg, Perry & Associates, LLC, to give you the answers you need. We will evaluate your situation and present the full range of options available in your case. Together, we can decide upon the best course of action. You can reach us by phone at (609) 216-7400 or visit us online today.