United States: Can The "Private Search" Doctrine Serve As An Exception To The Federal And State Of New Jersey Constitutional Requirement That A Warrant Issued In Advance Of A Search Of A Private Home?

Can The "Private Search" Doctrine Serve As An Exception To The Federal And State Of New Jersey Constitutional Requirement That A Warrant Issued In Advance Of A Search Of A Private Home? The Supreme Court of New Jersey's decision in State of New Jersey v. Ricky Wright (May 19, 2015)

The "private search doctrine" is a semi-obscure corner of Fourth Amendment jurisprudence. At its base, the doctrine addresses instances in which a private actor (i.e., not a law enforcement officer) conducts a "search" and discovers some species of contraband or proof of illegal conduct.   That person must then proceed to notify law enforcement and/or present them with the item in question. Law enforcement must then proceed to duplicate the private search without first obtaining a judicial warrant.

Does this happen every day? Probably not. Yet, it does happen enough to be the subject of a recent decision by the Supreme Court of New Jersey, which opinion recounts a diverse line of state and federal authority on this very issue.

Although a bit counter-intuitive, the logic of the doctrine is as follows: since a private person conducts the original search, it is thus deemed not to implicate the Fourth Amendment. So, if the follow-up police search does not exceed the scope of the private search, the government is held not to have invaded a protected privacy interest and an otherwise proscribed warrantless search can be valid.

But should this doctrine apply to the most sacred of all Fourth Amendment locations– a private home—as always, the beating heart of any privacy based analysis? For as Justice Scalia has observed, "...when it comes to the Fourth Amendment, the home is first among equals " and stands "at the Amendment's very core." Florida v. Jardines , 133 S. Ct. 1409, 1414 (2013). These protections exist with equal vigor in the New Jersey State Constitution in Article I, Paragraph 7. So, this eternal clash between privacy and law enforcement prerogatives now brings us to the unfortunate case of Mr. Ricky Wright.

Mr. Wright—although perhaps not otherwise a model of probity—did have a girlfriend, a woman named Evangeline James. Ms. James lived with her children in an apartment in Asbury Park, New Jersey where Mr. Wright would stay over three to four nights a week.

One Sunday evening in March 2009, Ms. James called her landlord to report a major water leak in her ceiling. The landlord instructed Ms. James to turn off the water main valve and assured her that both he and a plumber would be at the apartment in the morning.

The landlord was true to his word and arrived in the company of a plumber on Monday morning. Ms. James, however, was not home and did not answer her telephone. After waiting about 30 minutes, the landlord let himself in—something he had done before, presumably as required for routine maintenance.

The landlord and the plumber observed water and raw sewage leaking from the kitchen ceiling. As they moved through the apartment looking for other leaks, they noticed marijuana on a nightstand. In an open drawer inside the nightstand, they also found what they believed to be cocaine. They proceeded to call the police.

The police, in the person of an Officer Christie, soon arrived.   This officer walked through the apartment and noticed the drugs. He also found a scale, which neither the landlord or the plumber had mentioned. He then called for back-up and a full search (on consent) was carried out. This search yielded other drug contraband, as well as a handgun loaded with illegal hollow point bullets.   Ms. James and Mr. Wright were arrested.

Both were then indicted for several drug and weapons offenses. At trial, Mr. Wright moved to suppress all the evidence seized. Despite a police admission that the need to search was not exigent and that there had been ample time to obtain a warrant, the trial court denied the motion to suppress, finding that the search of the apartment did not violate the Fourth Amendment or state constitutional protections. The trial court relied primarily on the private search doctrine and found that the police search did not exceed in scope that which was done by the plumber and the landlord. The Appellate Division affirmed.

The Supreme Court of New Jersey granted a petition for certification to consider one issue: whether the private search doctrine (sometimes also referred to as the third party intervention doctrine) can be utilized to search a residence without a warrant. On May 19th, in an unanimous opinion authored by Chief Justice Rabner, this question was resoundingly answered in the negative, as the Court reversed the findings of the trial court and the Appellate Division and found the search of Ms. James' apartment to be unconstitutional

The Court did acknowledge the existence of the private search doctrine as rooted in earlier United States Supreme Court authority and confirmed the general precept that the Fourth Amendment's warrant requirement applies only to searches carried out by government agents, not by private individuals. Burdeau v. McDowell, 256 U.S. 465 (1921); Walter v. United States, 477 U.S. 649 (1980).

Yet, while the doctrine has an almost 100 year long pedigree, the United States Supreme Court has never extended its reach to the search of a private home. This clearly troubled the Supreme Court of New Jersey, which found such a proposed usage to be a "significant expansion" of the doctrine and something about which it had "serious reservations."

Of interest for New Jersey practitioners, is the fact that the opinion was premised on both state and federal law. Certainly, the lack of a United States Supreme Court opinion on point weighed heavily here, but the Court made it clear that its holding rested on the New Jersey State Constitution and New Jersey precedent as well.

At the end of the day, however, it seems to have been the fact that the premises searched was a private home that swung the day in Mr. Wright's favor. The Court cited federal and state case law all confirming the special intimate and personal nature of a private residence and the careful scrutiny that always must accompany any state intrusion into that space. "The unique status of the home has been recognized for centuries." Opinion citing Miller v. United States, 357 U.S. 301, 307 (1958).

A warrantless search of a home is "presumptively invalid" wrote Chief Justice Rabner, citing State of New Jersey v. Lamb, 218 N.J. 300 (2014) and Riley v. California, 134 S. Ct. 2473 (2014). Only a recognized exception to the warrant requirement can justify such an intrusion. The search of the James/Wright apartment just did not meet this high standard.

Yet, while his opinion was emphatic, Chief Justice Rabner did take time to review the various findings on this issue reached by other states and federal circuits and district courts. New Jersey's view can be argued to be the majority view, but it is not a unanimous view. So, while the application of the private search doctrine to private residences may be resolved in New Jersey, it is foreseeable that rulings from other courts in other jurisdictions will continue.

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