As the New Jersey Law Journal reported today, The New Jersey Appellate Division has upheld the privacy rights of a citizen who was searched without a warrant after police showed up at his house, smelled marijuana and had anonymous reports of gunfire in the area:
The strong smell of marijuana and anonymous reports of shots fired and unlawful firearms provided insufficient circumstances for a police officer to vault a fence and make an arrest without first obtaining a warrant, a New Jersey appeals court has ruled.
A two-judge Appellate Division panel Feb. 25 overturned a Trenton, New Jersey, man’s guilty plea to marijuana possession and the accompanying 541-day jail sentence, finding that a police officer’s decision to leap over a fence and conduct a search violated defendant Peter Samuell’s and other defendants’ constitutional rights against unlawful searches and seizures.
“Defendant contends a police officer’s scaling the fence and coming onto the back porch was unconstitutional conduct and all the evidence must be suppressed as the fruits of the initial unlawful entry,” Appellate Division Judges Victor Ashrafi and Amy O’Connor said. “We agree.”
The arrest occurred around 10 p.m. on April 6, 2011, after Trenton police received anonymous tips of shots being fired around and illegal weapons in a house where Samuell was a guest, according to the opinion.
Police surrounded the house, the opinion said. One of the officers was at a fence that enclosed the house’s backyard. In the backyard, there were three chained pit bulls and a chained bulldog. The officer testified at a suppression hearing that he detected the faint smell of marijuana.
Another officer knocked on the front door and another occupant, co-defendant David Crawford, answered. The officer asked Crawford to bring the dogs into the house, according to the opinion.
The officer at the back of the house said that when Crawford opened the back door, the marijuana smell grew stronger, according to the opinion. The officer climbed the fence, arrested Crawford and then began a search of the backyard, back porch and, eventually, the house.
The search yielded weapons, packaged marijuana and marijuana plants, the opinion said. At the suppression hearing, a trial judge ruled that the officers had a reasonable and articulable suspicion to search the house without a warrant and that the seizure of the marijuana and drugs was proper because they were in plain view.
Samuell pleaded guilty on the condition that he be allowed to retain his right to appeal.
“While the trial court’s analysis was legally correct in most respects, the court erred in concluding that [the officer] did not contravene constitutional prohibitions when he jumped over the fence to detain Crawford,” the appeals judges said.
There was, the judges said, no probable cause to permit the officer to jump the fence without first obtaining a warrant.
“Reasonable and articulable suspicion of criminal activity does not authorize the police to enter private property to further their investigation,” Ashrafi and O’Connor said.
It is well recognized that the police may briefly detain a person if there is a suspicion that the person has been engaged in criminal activity, they said, citing the state Supreme Court’s 2001 ruling in State v. Maryland.
“However, this ‘minimally intrusive’ police conduct … must occur where the police have a right to be, not on private property from which the police are excluded,” the judges said. “Reasonable suspicion to detain and question Crawford … did not authorize the police to enter the private backyard and back porch.”
They said the fence was there for the particular purpose of keeping the public out of the backyard.
“The backyard and porch were private property within the protected curtilage of the house,” the judges said.
The Attorney General’s Office, which represented the state on the appeal, declined to comment.
Samuell’s attorney, Princeton, New Jersey, solo Kevin Byrnes, did not return a telephone call.
