Denise Brown v. State of New Jersey (076656) (Cumberland County and Statewide) ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Denise Brown v. State of New Jersey (A-71-15) (076656)
Argued January 31, 2017 -- Decided July 25, 2017
LaVecchia, J., writing for the Court.
This appeal concerns the applicability of qualified immunity to a claim brought under the New Jersey Civil
Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, against a police detective named in his individual and official capacity.
The events underlying this appeal relate to a State Police investigation of an October 2008 home invasion.
According to witnesses, two men forcibly entered a home, stole belongings, and fled in a blue BMW. A few weeks
later, plaintiff Denise Brown loaned her blue BMW to her boyfriend, Carlos Thomas. The State Police suspected
that Thomas was involved in the burglary. Officers conducted a traffic stop, arrested Thomas for driving with a
suspended license, and impounded Brown’s vehicle. On November 20, Detective Eskridge searched Brown’s car
and found contraband and items linking the car to the home invasion. The State Police received a tip that Thomas
had given Brown a locket reported as stolen during the break-in. The locket was not found in the search of Brown’s
car. As a result, Detective Eskridge determined that the investigation should include a search of Brown’s home.
Detective Eskridge decided to ask Brown if she would consent to a search of her home. Detective John
Steet of the State Police accompanied him. The detectives arrived at Brown’s apartment, told Brown that they had
received a tip that Thomas had given her a stolen locket and asked if she would consent to a search of her home for
the item. She immediately refused and told the officers to obtain a warrant if they wanted to search her apartment.
Detective Steet testified that Brown’s refusal to consent after she learned that the detectives were looking
for a stolen locket made him fear that Brown would destroy evidence of the locket if she were permitted to enter the
apartment alone. To prevent that possibility, the detectives told Brown that she could either remain outside the
apartment, which would be secured by the officers from the outside, or enter the apartment accompanied by a police
escort. Both detectives testified that their offer to secure the premises in either of those two ways was consistent
with State Police training and approved by a supervisor at the State Police who had been contacted.
Brown chose to enter the apartment, and Detective Steet followed her in. Detective Eskridge left to obtain
a warrant. Other officers arrived an hour later. The officers remained in the kitchen, with Brown, while awaiting
Eskridge’s return. Detective Eskridge, armed with a search warrant, returned and searched the apartment.
Brown filed a complaint against the State of New Jersey, Detectives Steet and Eskridge, and other officers.
Defendants raised qualified immunity as a defense. Defendants’ motion for summary judgment was denied as to the
State Police and Detective Steet. The jury returned a verdict in favor of defendants. The Appellate Division
reversed as to whether Detective Steet was entitled to qualified immunity. 442 N.J. Super. 406, 410-11 (App. Div.
2015). The panel concluded that Detective Steet acted unconstitutionally by entering Brown’s home without a
warrant and identified the warrantless entry as a clear violation of established precedent. The Court granted the
Attorney General’s petition for certification. 225 N.J. 339 (2016).
HELD: In light of the context in which these circumstances arose—i.e., the lack of clarity in the law governing the
lawful means by which law enforcement may secure a home pending issuance of a warrant and, significantly, that law’s
intersection with the law governing the exigent circumstances exception to the warrant requirement—defendant did not
violate a “clearly established” right when he entered Brown’s home to secure it, and qualified immunity applies.
1. Whether a governmental official is entitled to qualified immunity requires inquiries into whether: (1) the facts,
taken in the light most favorable to the party asserting the injury show the officer’s conduct violated a constitutional
right; and (2) that constitutional right was clearly established at the time that defendant acted. (pp. 15-17)
2. Ordinarily, application of the defense of qualified immunity is a legal question for the court rather than the jury.
The record does not clearly indicate that the trial court made a ruling as to the legality of the initial entry into
Brown’s apartment prior to trial. In the future, it would be more helpful for proceedings to identify with
transparency the reasons for delaying a decision on qualified immunity. (pp 17-19)
3. Brown alleges that the police entry into her apartment violated the right of New Jerseyans “to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” N.J. Const. art. I, ¶ 7. Under that
provision, a warrantless search is presumptively invalid unless the search falls within one of the few well-delineated
exceptions to the warrant requirement. One exception is a search justified by probable cause and exigent
circumstances. The Attorney General has expressly conceded that, on these facts, “the officers could not have relied
on exigent circumstances to search Brown’s home while they awaited the warrant.” (pp. 19-20)
4. Instead, the Attorney General argues that the entry was lawful under United States Supreme Court case law that
has specifically addressed the propriety of securing premises from within to preserve evidence while a search
warrant was sought. In a 1984 case, the United States Supreme Court splintered on that pertinent issue. Segura v.
United States, 468 U.S. 796 (1984). Confusion engendered by Segura was alleviated to some degree by the
Supreme Court’s decision in Illinois v. McArthur, 531 U.S. 326 (2001), which held that a police officer was justified
in temporarily preventing a defendant from entering his home until a search warrant issued. To the extent that
Segura and McArthur can be argued to justify a discrete set of warrantless home entries pending receipt of a
requested warrant, they do so specifically in connection with “a plausible claim of specially pressing or urgent law
enforcement need, i.e., ‘exigent circumstances.’” Id. at 331. (pp. 20-24)
5. In the seven years between McArthur and the conduct at issue in this case, the New Jersey Supreme Court did not
opine on the constitutionality of seizing a home by securing it and preventing all access, or alternatively entering it
with the occupant, while awaiting a search warrant. Appellate court decisions that considered the issue have not
advanced a uniform interpretation of the law. The Court has recently touched on issues presented in Segura and
McArthur. State v. Wright, 221 N.J. 456 (2015); State v. Legette, 227 N.J. 460 (2017). That guidance cannot
inform the analysis of the conduct in this case because it came years after the contested home entry. (pp. 24-28)
6. As of November 20, 2008, precedent was not sufficiently clear to support a conclusion that Detective Steet
violated clearly established law when he entered Brown’s home to secure it. And although police department
policies do not hold compelling weight in a qualified immunity analysis, Detective Steet’s reliance on State Police
training and policy is informative when determining the reasonableness of his conduct. Detective Steet is entitled to
qualified immunity as to Brown’s NJCRA claim because regardless of whether his conduct amounts to a violation of
a constitutional right, that right was not clearly established at the time that he acted. (pp. 28-35)
7. The Court adds guidance going forward. In a case of true exigency and probable cause, the police can enter a
dwelling. However, police-created exigency designed to subvert the warrant requirement has long been rejected as a
basis to justify a warrantless entry into a home. Further, invocation of a person’s right to refuse an officer’s request
for a consent search is not probative of wrongdoing and cannot be the justification for the warrantless entry into a
home. In the future, law enforcement officials may not rely on McArthur to enter an apartment to secure it while
awaiting a search warrant. Although McArthur does not explicitly permit or forbid entry into a home under those
circumstances, this ruling makes clear that officers may not do so. They must get a warrant and, if reasonably
necessary, may secure the apartment for a reasonable period of time from the outside. (pp. 35-37)
The judgment of the Appellate Division is REVERSED, and the trial court’s dismissal of this action
against Detective Steet is REINSTATED.
JUSTICE ALBIN, DISSENTING, notes that in the wake of McArthur, courts understood, as they always
have, that the securing of a home—awaiting a warrant application—cannot be justified absent exigent
circumstances. According to Justice Albin, Brown had a clearly established right to remain secure in her home,
pending the arrival of a warrant, given the absence of any true exigent circumstances to justify a seizure of her
apartment. Detective Steet therefore is not entitled to the protection of qualified immunity, in Justice Albin’s view.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and
TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
2
SUPREME COURT OF NEW JERSEY
A-71 September Term 2015
076656
DENISE BROWN,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY and JOHN
STEET, DETECTIVE (NJSP), both
in his individual and
official capacity as New
Jersey State Police
Detective,
Defendants-Appellants,
and
RICK FUENTES, COLONEL, both
in his individual and
official capacity as
Superintendent of New Jersey
State Police, CHRISTIAN
ESKRIDGE, TROOPER (NJSP),
both in his individual and
official capacity as New
Jersey State Trooper, CITY OF
VINELAND, TIMOTHY CODISPOTI,
both in his individual and
official capacity as Vineland
Chief of Police, JOSEPH
VALENTINE, both in his
individual and official
capacity as Vineland Police
Sergeant, DAVID HENDERSCOTT,
OFFICER, both in his
individual and official
capacity as Vineland Police
Officer, OFFICER SMITH, both
in his individual and
official capacity as Vineland
Police Officer, and OFFICER
SOTO, both in her individual
1
and official capacity as
Vineland Police Officer,
Defendants.
Argued January 31, 2017 – Decided July 24, 2017
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 442 N.J. Super. 406 (App. Div.
2015).
David S. Frankel, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney
General, of counsel).
Carl D. Poplar argued the cause for
respondent (The Riback Law Firm, attorneys;
Mr. Poplar and William A. Riback, on the
briefs).
Rebecca J. Livengood argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director, attorney; Ms. Livengood, Mr.
Barocas, Alexander R. Shalom, and Jeanne M.
LoCicero, on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
This appeal concerns the applicability of qualified
immunity to a claim brought under the New Jersey Civil Rights
Act (NJCRA), N.J.S.A. 10:6-1 to -2, against a State Police
detective named in his individual and official capacity.1
1 One defendant remains in this matter. All other defendants
have been dismissed and all federal claims, which had been
removed to federal court, were dismissed with prejudice.
2
Plaintiff Denise Brown filed this NJCRA action claiming
that her state constitutional rights were violated in 2008 when
the defendant State Police officer accompanied her into her
apartment, without a warrant and without her consent, in order
to secure the premises while awaiting the issuance of a search
warrant. Given the options, Brown had declined to grant consent
to search her apartment to the two officers who were present and
refused to allow the officers to secure the apartment from
outside. The parties agree that there was probable cause to
believe that Brown had evidence in her home and, in fact, a
search warrant was obtained later that day. The officers were
in search of evidence of a burglary for which Brown’s boyfriend
was a suspect, and the officers had reason to believe that a
stolen locket necklace had been given to Brown.
To determine whether qualified immunity applies here, two
inquiries are pertinent: (1) were plaintiff’s constitutional
rights violated when the officers insisted that plaintiff be
accompanied by an officer inside her apartment in order to
secure the premises and its contents while awaiting the search
warrant, and (2) was the constitutional right being violated
clearly established at the time so that any reasonable officer
acting competently in the circumstances would have known of the
constitutional violation. The second prong of the inquiry
shields a law enforcement officer who has engaged in a violation
3
but does so when acting reasonably under color of law. However,
if the officer knew, or objectively should have reasonably
known, that he was engaged in a violation of a clear
constitutional right, then his unreasonable behavior disentitles
the officer to immunity from liability for his actions.
In reviewing the actions that took place in 2008, we
declare them to be inconsistent with the protections in Article
I, Paragraph 7 of our State Constitution. A law enforcement
officer, without a warrant and without consent, may not lawfully
insist on entering a residence based on an assertion that
exigent circumstances require the dwelling to be secured.
However, in light of the context in which these
circumstances arose -- i.e., the lack of clarity in the law
governing the lawful means by which law enforcement may secure a
home pending issuance of a warrant and, significantly, that
law’s intersection with the law governing the exigent
circumstances exception to the warrant requirement -- we
conclude that defendant did not violate a “clearly established”
right when he entered Brown’s home to secure it. Therefore, we
hold that qualified immunity applies and that Brown’s claim
against the remaining defendant officer was properly dismissed
by the trial court.
I.
A.
4
This matter proceeded to trial. Although the defense of
qualified immunity was discussed at various points during the
proceedings, the issue was not fully resolved pre-trial because
the court sent to the jury disputed factual matters that were
relevant to the issue before determining the qualified immunity
question. We therefore recite the facts as presented and found
at trial.
The events underlying this appeal relate to a State Police
investigation of a Cape May County home invasion that occurred
in October 2008. According to victims and eyewitnesses, two men
with handguns forcibly entered a home, stole jewelry and other
belongings, and fled in a blue BMW, hauling away stolen goods in
a black drawstring bag.
A few weeks later, on November 12, 2008, plaintiff Denise
Brown loaned her blue BMW to her boyfriend, Carlos Thomas. At
the time, the State Police suspected that Thomas was involved in
the burglary. On that date, officers of the Vineland Police
Department conducted a traffic stop of the blue BMW, which
Thomas was driving, arrested Thomas for driving with a suspended
license, and impounded Brown’s vehicle. Later that day, the
State Police charged Thomas in connection with his alleged
involvement in the home invasion. The same day, a State Police
representative notified Brown of Thomas’s arrest and that the
State Police had her vehicle.
5
The State Police kept Brown’s impounded vehicle at
headquarters for the next week while continuing to investigate
the Cape May County case. On the evening of November 19, State
Police Detective Christian Eskridge obtained a warrant to search
Brown’s car. That evening, he telephoned Brown to inform her
that her car would be searched. Detective Eskridge offered to
drive Brown to the police station after the search was executed
so she could retrieve her car.
On November 20, Detective Eskridge searched Brown’s car and
found contraband, a gun holster, and other items, including
jewelry, linking the car to the home invasion. During the
investigation into the burglary, the State Police received a tip
that Thomas had given Brown a locket reported as stolen during
the break-in. The locket was not among the jewelry found in the
search of Brown’s car. As a result, Detective Eskridge
determined that the investigation should include a search of
Brown’s home.2
2 Detective Eskridge testified that, consistent with the
Assistant Prosecutor’s advice, “the best bet was to execute the
search warrant on the car first” to “obtain additional evidence
that [would] build[] the [probable cause] for her apartment.”
Detective Steet’s testimony, aligned with that of Detective
Eskridge, indicated that the officers lacked probable cause to
search Brown’s home until after the search of her car had been
completed. As noted, the search of Brown’s car did not take
place until the morning of November 20, sometime before 10 a.m.
6
Detective Eskridge was already scheduled that morning to
bring Brown to pick up her car; he decided not to first seek a
search warrant but instead to ask Brown if she would consent to
a search of her home when he went to pick her up. Detective
John Steet of the State Police accompanied him. Detective
Eskridge explained that if Brown refused consent, he would then
proceed to seek a search warrant, securing the premises in the
interim by either preventing Brown from entering the home or
allowing her access, accompanied by police, to prevent loss or
destruction of evidence.
The detectives arrived at Brown’s apartment at about 10:00
a.m. on November 20. Brown had recently arrived home from work.
She encountered Detectives Eskridge and Steet outside her
apartment as she exited a neighbor’s apartment. The detectives
told Brown that they had received a tip that Thomas had given
her a stolen locket and asked if she would consent to a search
of her home for the item. She immediately refused and told the
officers to obtain a warrant if they wanted to search her
apartment. The conversation outside the apartment lasted about
fifteen to twenty minutes.
Detective Steet testified that Brown’s refusal to consent
after she learned that the detectives were looking for a stolen
locket made him fear that Brown would destroy evidence of the
locket if she were permitted to enter the apartment alone. To
7
prevent that possibility, the detectives told Brown that she
could either remain outside the apartment, which would be
secured by the officers from the outside,3 or enter the apartment
accompanied by a police escort. Both detectives testified that
their offer to secure the premises in either of those two ways
was consistent with State Police training and approved by a
supervisor at the State Police who had been contacted.
Brown chose to enter the apartment, and Detective Steet
followed her in. Detective Eskridge left to obtain a search
warrant. Other State Police officers arrived an hour later.
The officers remained in the apartment’s kitchen, with Brown,
while awaiting Eskridge’s return from obtaining the warrant from
the same Cape May County judge who issued the warrant to search
Brown’s car. Because Brown’s apartment was in Cumberland
County, it took several hours for Eskridge to obtain the warrant
and return.
At about 1:30 p.m., Brown left to report for work and the
officers exited with her.4 At approximately 4:00 p.m., Detective
3 Steet testified that Brown could have returned to her
neighbor’s apartment or the detectives could have taken her to
pick up her car, as originally intended. However, Brown wanted
to go into her own home, and she did not want to consent to a
search of her home.
4 During the time that the officers were in her home, Brown
required use of her lavatory. Detective Steet told Brown that
she could leave the apartment to use one off-premises, such as a
nearby public restroom or a neighbor’s bathroom, or she could
8
Eskridge, armed with a search warrant, returned and searched the
apartment. During the search, the officers found a black
drawstring bag -- like the one described by the victims and
eyewitnesses to the Cape May County home invasion -- but no
locket.
B.
Brown commenced the instant matter by filing a complaint in
the Law Division against the State of New Jersey, Detectives
Steet and Eskridge, and other State Police and Vineland Police
Department officers. Among others, Brown advanced an NJCRA
claim under N.J.S.A. 10:6-2(c), which provides a cause of action
for deprivation of “any substantive rights, privileges or
immunities secured by the Constitution or laws of this State,”
use her own bathroom but she would have to be accompanied by a
female officer. Brown, who had a medical condition, objected
and determined to use her own bathroom. A female Vineland
police officer was brought in to accompany her. Brown was
afforded no privacy during her use of the facilities. Pre-
trial, the motion court determined that the many disputed facts
over the type of search (visual, strip, or cavity) conducted by
the female officer during the bathroom encounter required the
denial of summary judgment to all officers (including Steet)
still on the premises when that incident occurred. Some
confusion, discussed infra, spilled over as to what other facts
would be presented to the jury relating to the qualified
immunity issues that were not resolved prior to trial. Brown’s
counsel did not pursue the issue at the time and allowed it to
be sorted out at trial. The bathroom incident was not the focus
of the qualified immunity issue eventually pursued on appeal.
This appeal focuses on entry into the apartment.
9
alleging a violation of Article I, Paragraph 7 of the New Jersey
Constitution, which guarantees freedom from unreasonable
searches and seizures.5 She sought compensatory and punitive
damages, a declaratory judgment that defendants’ conduct
violated her rights, and injunctive relief, along with costs and
fees. Defendants denied Brown’s allegations and raised
qualified immunity as a defense.
Prior to trial, defendants moved for summary judgment,
which was granted for certain defendants, including Detective
Eskridge; however, the motion for summary judgment was denied as
to the State Police and Detective Steet. The trial court
reserved decision on the remaining defendants’ qualified
immunity defense, determining to allow the jury to resolve
underlying material questions of fact, after which the court
would resolve remaining questions of law related to the immunity
defense.
The jury returned a verdict in favor of defendants, finding
that Brown failed to prove that: (1) the State Police lacked a
good reason to fear the destruction of evidence before seeking
the issuance of a warrant; (2) the State Police and Detective
5 Brown’s complaint also alleged a violation of the Fourth
Amendment of the United States Constitution, but that claim was
dismissed prior to trial. Brown v. State, 442 N.J. Super. 406,
416 n.4 (App. Div. 2015).
10
Steet failed “to reconcile . . . law enforcement needs with
[her] privacy interests”; (3) the State Police restricted her
movements by preventing her from leaving her apartment; and (4)
the State Police restricted “her movements for an unreasonable
period.”
Brown’s motion for a judgment notwithstanding the verdict
(JNOV) was denied.
C.
On appeal, the Appellate Division affirmed the trial
court’s denial of Brown’s motion for JNOV as to the State
Police, but the panel reversed as to whether Detective Steet was
entitled to qualified immunity. Brown v. State, 442 N.J. Super.
406, 410-11 (App. Div. 2015).
The panel concluded that Detective Steet acted
unconstitutionally by entering Brown’s home without a warrant
because his entry was premised on invalid police-created
exigency, namely, the detectives’ disclosure to Brown of the
object of their search and their subsequent reliance on her
informed refusal of consent. Id. at 417, 427-28. The panel
rejected the argument that Steet’s entry was justified under
Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed.
2d 838 (2001), in which the United States Supreme Court found an
officer’s entry into the threshold of a home to monitor a
suspect’s movements pending issuance of a search warrant to be
11
reasonable. Brown, supra, 442 N.J. Super. at 421. Rather, the
panel labelled this entry a severe intrusion upon Brown’s
constitutional privacy rights unsupported by genuine exigency to
justify the action. Ibid. Further, the panel identified the
officer’s warrantless entry into Brown’s home as a clear
violation of established precedent regarding the protection
provided by Article I, Paragraph 7 to privacy rights in a home.
Id. at 427. Determining qualified immunity to be inapplicable,
the panel remanded for a determination of damages against
Detective Steet. Id. at 427-28.
The Attorney General filed a petition for certification to
this Court, which was granted. 225 N.J. 339 (2016). We also
granted the motion of the American Civil Liberties Union of New
Jersey (ACLU-NJ) for leave to appear as amicus curiae.
II.
A.
The State points to United States Supreme Court precedent
in arguing for reversal of the panel’s decision holding that
Detective Steet was not entitled to qualified immunity.
In particular, the State contends that this case is
analogous to McArthur, which, the State argues, permits police
officers who have probable cause to believe that evidence will
be found within a home to offer occupants the choice of
remaining outside the residence while awaiting a search warrant
12
or entering the home only with police accompaniment. In support
of that legal interpretation, the State points to State v.
Wright, where this Court found unlawful an officer’s warrantless
entry into the defendant’s apartment at the behest of the
defendant’s landlord. 221 N.J. 456, 478-79 (2015). Still, the
Court added in its discussion that the officer could have
lawfully “secure[d] the apartment or home from the outside, for
a reasonable period of time, if reasonably necessary to avoid
any tampering with or destruction of evidence” while awaiting
the warrant. Id. at 478 (citing McArthur, supra, 531 U.S. at
334, 121 S. Ct. at 951-52, 148 L. Ed. 2d at 849). Further, the
State argues that the Appellate Division erred when
characterizing this case as involving impermissible police-
created exigency because it arose from reasonable and
constitutional police conduct: asking for consent to search, as
permitted by Kentucky v. King, 563 U.S. 452, 462, 466, 131 S.
Ct. 1849, 1858, 1860, 179 L. Ed. 2d 865, 876, 879 (2011).
Pointedly, the State does not argue exigent circumstances as the
basis for entry into Brown’s home.
In sum, the State argues that Detective Steet is entitled
to qualified immunity because, even when viewed in the least
favorable light to the State’s argued position, New Jersey
precedent does not clearly establish that the detective’s
conduct in securing the premises was unconstitutional -- in
13
particular, because it was based on “reasonable interpretations
of McArthur and King” and was authorized by “current police
training.”
B.
Brown seeks affirmance of the Appellate Division judgment
finding a violation of her state constitutional rights, and
therefore a violation of the NJCRA, because Detective Steet
entered her home without a warrant, exigent circumstances, or
consent.
Brown fundamentally contends that the State’s reliance on
McArthur is unfounded, emphasizing that the McArthur Court
recognized that there can be no entry without a showing of
exigency. See 531 U.S. at 331, 121 S. Ct. at 950, 148 L. Ed. 2d
at 847. According to Brown, the State relies on impermissible
police-created exigency that cannot justify a warrantless entry
of the home. She maintains that exigency arose only after the
detectives told Brown of the object of their search and after
Brown exercised her constitutional right to refuse consent to
the search. Thus, on the issue of qualified immunity, Brown
argues that Detective Steet is not entitled to the defense
because it is well established that an officer may not
effectuate a warrantless entry into a home without genuine
exigency and that a refusal of consent does not create exigent
circumstances.
14
As amicus, the ACLU-NJ supports Brown’s position. The
ACLU-NJ contends that the State Police lacked sufficient
exigency to enter Brown’s home without a warrant and urges this
Court not to expand exigent-circumstances law in a case such as
this, where a police officer told a person the object of his
search and then based a claim of exigency on the person’s
constitutional right to refuse to consent to entry of a home.
The ACLU-NJ maintains that such a holding would provide ill-
intentioned officers with a means by which to circumvent the
warrant requirement.
The ACLU-NJ also counters the State’s assertion that
McArthur permits the detectives’ conduct here. The ACLU-NJ
argues that the law enforcement interest in obtaining a stolen
locket from a non-suspect’s home is meager when compared to the
magnitude of the infringement on Brown’s privacy rights. And,
the ACLU-NJ argues that Detective Steet should be denied the
defense of qualified immunity due to the unlawfulness of the
police conduct in disregarding Brown’s privacy interest in her
home, coupled with the disregard of the well-known rules
governing warrantless police entry into a home.
III.
A.
The affirmative defense of qualified immunity protects
government officials from personal liability for discretionary
15
actions taken in the course of their public responsibilities,
“insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Morillo v. Torres, 222 N.J. 104, 116 (2015)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 2738, 73 L. Ed. 2d 396, 410 (1982)). The defense “extends
to suits brought under . . . the Civil Rights Act, N.J.S.A.
10:6-1 to -2.” Id. at 107-08.
This state’s qualified immunity doctrine tracks the federal
standard, shielding from liability all public officials except
those who are “plainly incompetent or those who knowingly
violate the law.” Id. at 118 (quoting Connor v. Powell, 162
N.J. 397, 409, cert. denied, Badgley v. Connor, 530 U.S. 1216,
120 S. Ct. 2220, 147 L. Ed. 2d 251 (2000)). To ascertain
whether a governmental official, such as Detective Steet, is
entitled to qualified immunity requires inquiries into whether:
(1) the facts, “[t]aken in the light most favorable to the party
asserting the injury[] . . . show the officer’s conduct violated
a constitutional right”; and (2) that constitutional “right was
clearly established” at the time that defendant acted. Saucier
v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d
272, 281 (2001); see Schneider v. Simonini, 163 N.J. 336, 354-55
(2000) (“The ‘clearly established law’ requirement . . .
obligates a court to judge an official’s conduct based on the
16
state of the law and facts that existed at the time of the
alleged statutory or constitutional violation.” (citing Anderson
v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038, 97 L.
Ed. 2d 523, 530 (1987))), cert. denied, 531 U.S. 1146, 121 S.
Ct. 1083, 148 L. Ed. 2d 959 (2001). Either of the two prongs
may be considered first. Morillo, supra, 222 N.J. at 118.
B.
Ordinarily, application of the defense of qualified
immunity is a legal question for the court rather than the jury;
therefore, the defense should be raised and resolved “long
before trial.” Schneider, supra, 163 N.J. at 356 (quoting
Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534, 537, 116 L.
Ed. 2d 589, 596 (1991)). Qualified immunity relieves an
eligible defendant from the burden of trial. See, e.g., Pearson
v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815, 172 L. Ed.
2d 565, 573 (2009) (noting “the importance of resolving immunity
questions at the earliest stage in litigation” (quoting Hunter,
supra, 502 U.S. at 227, 112 S. Ct. at 536, 116 L. Ed. 2d at
595)).
An exception to that rule arises when the case involves
disputed issues of fact. Schneider, supra, 163 N.J. at 359. In
such a circumstance, the case may be submitted to the jury to
determine “the who-what-when-where-why type of historical fact
issues,” after which the trial judge may incorporate those
17
findings in determining whether qualified immunity applies.
Ibid. (internal quotation marks omitted).
C.
In this matter, defendants raised the defense of qualified
immunity in connection with their motion for summary judgment,
arguing that McArthur applied and provided “the only clearly
established, constitutional standard” relevant to the facts.
Following argument on the motion, the trial court concluded that
a factual dispute existed regarding the circumstances of
restricting Brown’s private use of her lavatory and the
contested search that took place there when accompanied by a
female police officer. The trial court determined to grant the
motion for summary judgment for the defendants who were “not
present when that . . . observation was made in the bathroom,”
but denied the motion, as presented, for those officers,
including Detective Steet, who were still present in Brown’s
home at the time of the lavatory incident. The record does not
clearly indicate that the trial court made a ruling as to the
legality of the initial entry into Brown’s apartment prior to
trial; however, it is clear that the case proceeded to trial on
factual issues also associated with the entry into the
apartment.
Ultimately, the question of qualified immunity was
determinative at trial. The trial court placed on the verdict
18
sheet four issues related to an application of McArthur to the
facts of this matter, stating its intention to have the jury
decide those issues so that the court could “get an idea
factually, historically, because of an argument of qualified
immunity,” and that once that verdict sheet was returned, the
court would “determine the law on the issue of qualified
immunity.” The court stated that “the entry and whether or not
there was an illegal seizure, temporary as it may have been,
pending the warrant, is something I think that we’re going to
let the jury determine.” In addition, in determining to charge
the jury on McArthur and exigency, the court again stated that
if the jurors conclude that the officers “were there and they
had a right to be there . . . then the case ends . . . from the
jury’s standpoint.”
The issue of qualified immunity took an unusual route in
this matter. In the future, it would be more helpful for
proceedings to identify with transparency the reasons for
delaying a decision on qualified immunity. Because no motions
were made or appeals taken at the time qualified immunity issues
were left for the jury, we do not and cannot now weigh in on the
propriety of that procedure in light of the facts of this case.
IV.
Here, Brown alleges that the police entry into her
apartment violated the right our Constitution bestows on New
19
Jerseyans “to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” N.J.
Const. art. I, ¶ 7. Under that provision, “a warrantless search
is presumptively invalid,” State v. Gonzales, 227 N.J. 77, 90
(2016) (quoting State v. Edmonds, 211 N.J. 117, 130 (2012)),
“unless [the search] falls within one of the few well-delineated
exceptions to the warrant requirement,” State v. Maryland, 167
N.J. 471, 482 (2001) (alteration in original) (quoting State v.
Citarella, 154 N.J. 272, 278 (1998); citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed.
2d 854, 858 (1973)).
A.
New Jersey law establishes that one exception to the
warrant requirement of Article I, Paragraph 7 is a search
justified by probable cause and exigent circumstances. The
Attorney General does not cite the exigency exception to the
warrant requirement as a grounds for the officer’s entry into
Brown’s apartment; in fact, the Attorney General has expressly
conceded that, on these facts, “the officers could not have
relied on exigent circumstances to search Brown’s home while
they awaited the warrant.”
Instead, the Attorney General argues that the entry was
lawful under United States Supreme Court case law that has
20
specifically addressed the propriety of securing premises from
within to preserve evidence while a search warrant was sought.
In a 1984 case, the United States Supreme Court splintered
on that pertinent issue. Segura v. United States, 468 U.S. 796,
104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984). In Segura, supra,
police officers had probable cause to believe that they would
find drugs in an apartment, but no warrant to conduct a search.
Id. at 800, 810, 104 S. Ct. at 3383, 3388, 82 L. Ed. 2d at 605,
612. To prevent the loss of the drug evidence, the officers
“secure[d] the premises” from within, leading to a nineteen-hour
occupation of the vacant apartment. Id. at 800-01, 104 S. Ct.
at 3383, 82 L. Ed. 2d at 605-06.
Two Justices concluded that, assuming the existence of
exigency, “securing a dwelling, on the basis of probable cause,
to prevent the destruction or removal of evidence while a search
warrant is being sought is not itself an unreasonable seizure of
either the dwelling or its contents.” Id. at 810, 104 S. Ct. at
3388, 82 L. Ed. 2d at 612. However, four Justices concluded
that the “prolonged occupation” was unconstitutional because it
“inevitably involved scrutiny of a variety of personal effects
throughout the apartment” and allowed the officers to
“exercise[] complete dominion and control over the apartment and
its contents.” Id. at 820-24, 104 S. Ct. at 3393-96, 82 L. Ed.
2d at 618-22. Ultimately, Segura did not provide a controlling
21
opinion on whether officers may secure a residence from the
inside, or outside, while awaiting a search warrant.
Confusion engendered by Segura was alleviated to some
degree by the Supreme Court’s decision in McArthur, supra, 531
U.S. at 331-33, 121 S. Ct. at 950-51, 148 L. Ed. 2d at 848-49,
which held that a police officer was justified in temporarily
preventing a defendant from entering his home until a search
warrant issued.
In McArthur, two police officers were at the defendant’s
mobile home on a domestic matter when the defendant’s wife
suddenly revealed that the defendant had hidden “some dope
underneath the couch.” Id. at 329, 121 S. Ct. at 948–49, 148 L.
Ed. 2d at 846. After one officer requested and was denied
consent to search the defendant’s trailer, the other officer
left to obtain a search warrant; during that interval, the
remaining officer refused to permit McArthur to re-enter his
home alone. Id. at 329, 121 S. Ct. at 949, 148 L. Ed. 2d at
846. For two hours, McArthur was unable to enter his own home
unaccompanied -- when he was allowed to enter the trailer to
retrieve cigarettes and make a phone call, the officer “stood
just inside the door to observe what [McArthur] did.” Id. at
328, 329, 121 S. Ct. at 948, 949, 148 L. Ed. 2d at 846.
The Supreme Court concluded that the officer’s conduct in
securing the defendant’s home did not violate the Fourth
22
Amendment based on the circumstances, which included: (1)
probable cause to believe that the officer would find contraband
in McArthur’s home; (2) the officer’s reasonable belief that
McArthur, who saw his wife speak to the police upon exiting the
trailer, would destroy the contraband if permitted to enter the
home alone; (3) reasonable efforts by the officer to balance the
need of law enforcement against McArthur’s privacy interest; and
(4) a period of restraint that “was no longer than reasonably
necessary for the police, acting with diligence, to obtain the
warrant.” Id. at 331-33, 121 S. Ct. at 950-51, 148 L. Ed. 2d at
848-49. Significantly, the Court noted that the officer
“stepped inside the trailer’s doorway” to monitor McArthur’s
movement only because McArthur chose to enter the home “for his
own convenience,” and referred to that restraint as minimally
intrusive, especially when compared to a warrantless arrest or
search. Id. at 335-36, 121 S. Ct. at 952-53, 148 L. Ed. 2d at
850-51.
Again, to the extent that Segura and McArthur can be argued
to justify a discrete set of warrantless home entries pending
receipt of a requested warrant, they do so specifically in
connection with “a plausible claim of specially pressing or
urgent law enforcement need, i.e., ‘exigent circumstances.’”
Id. at 331, 121 S. Ct. at 950, 148 L. Ed. 2d at 847. There is,
therefore, a necessary overlap between home entries pursuant to
23
McArthur and those pursuant to the exigent circumstances
exception to the warrant requirement, which also involves a
showing of exigency to justify a home entry. See, e.g., State
v. Bolte, 115 N.J. 579, 585-86 (recognizing that combination of
probable cause and exigency “may excuse police from compliance
with the warrant requirement”), cert. denied, 493 U.S. 936, 110
S. Ct. 330, 107 L. Ed. 2d 320 (1989).
The potential conflation of the two exceptions renders the
qualified immunity analysis in this appeal particularly
challenging; we therefore hew closely to the Attorney General’s
focused reliance on the asserted McArthur justification, and
consider how New Jersey courts have addressed the specific
circumstances of securing premises during the interval in which
a warrant is sought.
B.
In the seven years between the decision in McArthur and the
conduct at issue in this case, this Court did not opine on the
constitutionality of seizing a home by securing it and
preventing all access, or alternatively entering it with the
occupant, while awaiting a search warrant.
Appellate court decisions that considered the issue have
not advanced a uniform interpretation of the law. Some panels
have held that a seizure of a premises from the outside pending
a search warrant, even absent exigent circumstances, is
24
permissible. See State v. Josey, 290 N.J. Super. 17, 29 (App.
Div.), certif. denied, 146 N.J. 497 (1996); State v. De Lane,
207 N.J. Super. 45, 50 (App. Div. 1986). Other panels have
permitted entry into a home to secure evidence to be found
therein pending a warrant when coupled with exigent
circumstances. See, e.g., State v. Myers, 357 N.J. Super. 32,
36, 39 (App. Div. 2003) (upholding seizure of home from within
due to likelihood that defendant, who was aware of
investigation, would destroy evidence; lack of knowledge of
defendant’s whereabouts; and officers’ safety concerns).
Finally, at least one trial court within the state has held that
officers may enter a home to secure it without any showing of
exigency at all, so long as they have probable cause to suspect
evidence will be found in the residence. State v. Speid, 255
N.J. Super. 398, 403 (Law Div. 1992) (“The police may, with
probable cause, enter a home to secure it while a search warrant
is obtained.” (citing Segura, supra, 468 U.S. 796, 104 S. Ct.
3380, 82 L. Ed. 2d 599)).
Aside from the pending-warrant issue, however, New Jersey
precedent generally regarding entry into a home to preserve
evidence was not opaque as of 2008. Warrantless entry by a
police officer into a residence was not permitted unless the
officer obtained the occupant’s consent or could demonstrate
both probable cause and exigent circumstances. See State v.
25
Hutchins, 116 N.J. 457, 463 (1989). Likewise, case law prior to
2008 suggested that the ideal procedure for the officer who
lacks exigency would be to secure a home from the outside. See
State v. Stott, 171 N.J. 343, 349-51, 360 (2002); State v.
Lewis, 116 N.J. 477, 480, 487–88 (1989); State v. De La Paz, 337
N.J. Super. 181, 198 (App Div.), certif. denied, 168 N.J. 295
(2001). But see State v. Alvarez, 238 N.J. Super. 560, 571
(App. Div. 1990) (concluding that warrantless entry into hotel
room to prevent destruction of evidence was constitutional
because, “unlike a private home, the ability of police officers
to secure or continue a surveillance of a hotel room poses
peculiar risks”).
C.
We have recently touched on issues presented in Segura and
McArthur. In 2015, this Court was asked to consider whether a
police officer acted unconstitutionally when he entered and
searched the absent-defendant’s home at the request of the
defendant’s landlord, a third party, who had found contraband in
the apartment. Wright, supra, 221 N.J. at 459, 461-62. That
decision focused on the extension of the third-party
intervention doctrine to a situation involving a home, and our
Court noted that “[t]he proper course under the State and
Federal Constitutions” in that circumstance is to rely on the
information provided by a third-party to apply for a search
26
warrant and then, “[i]n the time it takes to get the warrant,
. . . secure the apartment or home from the outside, for a
reasonable period of time, if reasonably necessary to avoid any
tampering with or destruction of evidence.” Id. at 478 (citing
McArthur, supra, 531 U.S. at 334, 121 S. Ct. at 951-52, 148 L.
Ed. 2d at 849).
Relatedly, we also recently instructed that an officer may
not insist on accompanying an individual who seeks to enter his
home in order to obtain requested credentials. In State v.
Legette, a police officer conducting a Terry6 investigation asked
the detained defendant for identification, stated that he “would
have to accompany [the defendant] to his apartment” to retrieve
it, and then entered the defendant’s apartment to monitor the
defendant’s movements, allegedly for the officer’s safety. 227
N.J. 460, 464-65 (2017). This Court held that the officer’s
conduct was unconstitutional because law enforcement personnel
conducting Terry investigations may only act to protect
themselves during that limited encounter, and that aim would not
be furthered by warrantless entry into a detainee’s home. Id.
at 473.
In sum, the latest guidance in this general area has
ratified the preeminent requirement of a warrant, or clearly
6 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
27
granted consent, before an officer may accompany an individual
into the recesses of her home. Exigency creates its own sets of
rules, depending on the exception to the warrant requirement
relied upon.
Although we include that guidance for completeness, it
cannot inform our analysis of the officers’ conduct in this case
because it came years after the contested home entry. Once
again, determination of the existence of whether a
constitutional right was clearly established and violated
depends, for purposes of qualified immunity analysis, on the
state of the law at the time of the alleged violation.
V.
Applying these legal principles to the facts of this case,
Detective Steet will be entitled to qualified immunity so long
as New Jersey law did not “clearly establish[] that [his]
conduct was unlawful in the circumstances.” Saucier, supra, 533
U.S. at 201, 121 S. Ct. at 2156, 150 L. Ed. 2d at 281. To make
that determination, we must assess whether, on November 20, 2008
(the date of the entry into Brown’s home), the law was
“sufficiently clear that a reasonable official” in Detective
Steet’s position would have known that the warrantless entry
violated Brown’s rights. Anderson, supra, 483 U.S. at 640, 107
S. Ct. at 3039, 97 L. Ed. 2d at 531.
28
The Attorney General argues that Detective Steet relied on
McArthur when he asked Brown to choose between not entering her
home, letting the detective secure it from the outside, or
entering with an officer who would secure it from the inside.
In doing so, consistent with police training and supervisor
approval in these circumstances, the State maintains that Steet
acted reasonably -- not incompetently or knowingly wrongfully --
and should be entitled to the benefit of qualified immunity.
Given McArthur’s ambiguity, this Court’s lack of precedent
regarding McArthur and Segura, and inconsistent interpretations
of those cases by the Appellate Division, we are compelled to
recognize the force of the State’s argument that the parameters
of a permissible seizure of a home pending a search warrant were
not clearly established within New Jersey when Detective Steet
acted, such that a reasonable officer in his position would not
have known that his conduct was unlawful. Saucier, supra, 533
U.S. at 202, 121 S. Ct. at 2156, 150 L. Ed. 2d at 282; see,
e.g., Morillo, supra, 222 N.J. at 120 (finding qualified
immunity applied in context of ambiguous application of
statutory exemption).
As of November 20, 2008, neither McArthur itself nor any
strain of New Jersey case law interpreting McArthur defined the
boundaries within which an officer must abide when securing a
residence while awaiting a search warrant. First, McArthur
29
clearly holds that an officer may secure a home from the outside
by preventing a suspect’s reentry to preserve evidence that the
officer has reason to believe is within the home while he awaits
a search warrant. McArthur, supra, 531 U.S. at 328, 121 S. Ct.
at 948, 148 L. Ed. 2d at 846. In support of that holding, the
Court cited Segura, in which both the majority and minority of
the Court agreed that officers seeking to secure a home “might
lawfully have sealed the apartment from the outside, restricting
entry into the apartment while waiting for the warrant.” Id. at
333, 121 S. Ct. at 951, 148 L. Ed. 2d at 849 (emphases added).
Yet, McArthur does not foreclose the possibility that
officers might lawfully enter a home to secure it when the
occupant, as here, insists on entry. The Court noted that the
officer on the scene prevented McArthur from entering his home
“unless a police officer accompanied him,” but the Court did not
explicitly and separately address whether the officer could have
“accompanied” McArthur into the residence. Id. at 329, 121 S.
Ct. at 949, 148 L. Ed. 2d at 846. In fact, while awaiting a
warrant, the officer twice monitored McArthur from inside the
door, which the Court labeled an “observation.” Id. at 329,
335, 121 S. Ct. at 949, 952, 148 L. Ed. 2d at 846, 850.
Moreover, the Supreme Court noted that the limited entry avoided
“significant intrusion into the home itself,” and cited as
support Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371,
30
1379–80, 63 L. Ed. 2d 639, 650 (1980), and United States v.
United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125,
2134, 32 L. Ed. 2d 752, 764 (1972), both of which recognize that
“physical entry of the home is the chief evil against which the
. . . Fourth Amendment is directed.” Id. at 331, 121 S. Ct. at
950, 148 L. Ed. 2d at 847-48.
Finally, in ranking the various “intrusions,” the Court
held that it would be a greater intrusion to enter a home to
conduct a warrantless arrest or search than to “[t]emporarily
keep[] a person from entering his home,” id. at 336, 121 S. Ct.
at 953, 148 L. Ed. 2d at 851, and it would be a greater
intrusion to prohibit reentry altogether than to permit it
“conditioned on observation,” id. at 335, 121 S. Ct. at 952, 148
L. Ed. 2d at 850. However, nowhere in that ranking, or in its
opinion, did the Court address the intrusion effected by a
warrantless entry to allow for extended observation, as in this
case. Instead, McArthur’s “language leaves open to debate the
intended reach” of its new rule. Morillo, supra, 222 N.J. at
123.
Due to its inherent ambiguity on the subject at issue,
McArthur does not clearly establish that Detective Steet acted
unlawfully when he entered Brown’s home to secure it from
within. See ibid. It is likewise not clearly established by
McArthur whether Detective Steet could offer Brown the choice of
31
awaiting the warrant outside of her home or inside the home with
police accompaniment.
Second, because the scope of McArthur’s holding “remains
unsettled by any interpretive decision by [New Jersey] courts,”
Detective Steet cannot fairly be regarded as violating clearly
established state law when he entered Brown’s home to secure it
pending issuance of a search warrant. Ibid. As of November
2008, this Court had neither interpreted McArthur nor defined
the extent of permissible police activity under the New Jersey
Constitution in light of McArthur. Although we cited McArthur
in Wright, supra, as support for the proposition that, rather
than enter a home without a warrant, an officer should secure
the premises from the outside, the Court did not decide Wright
until 2015; therefore, although Wright directs a limited
application of McArthur under the New Jersey Constitution, its
guidance was not available to Detective Steet at the time of his
conduct. 221 N.J. at 478 (citing McArthur, supra, 531 U.S. at
334, 121 S. Ct. at 951–52, 148 L. Ed. 2d at 849).7
7 The only New Jersey precedent to have cited McArthur by 2008
was State v. Nikola, which referenced McArthur in support of the
seizure of a person, rather than a home, before holding that an
officer did not require an arrest warrant to enter the
defendant’s garage because she had already been seized during a
temporary investigative detention at the time of entry. 359
N.J. Super. 573, 583, 586 (App. Div.), certif. denied, 178 N.J.
30 (2003).
32
Likewise, as of 2008, this Court had not weighed in on
Segura’s competing analyses regarding an officer’s occupation of
a home while awaiting a search warrant. The few published
Appellate Division decisions interpreting and applying Segura
did so inconsistently. As noted previously, one panel
determined that an officer acted reasonably in securing a home
from within, Myers, supra, 357 N.J. Super. at 39, but two others
held that such conduct would be unconstitutional if the facts
lacked sufficient exigency, Josey, supra, 290 N.J. Super. at 29,
or if the officers could have secured the home from the outside,
De Lane, supra, 207 N.J. Super. at 50. Although one Law
Division decision interpreted Segura to allow warrantless
occupation of a home pending issuance of a search warrant, even
without exigent circumstances, Speid, supra, 255 N.J. Super. at
403, no published appellate decision has favorably cited Speid
for that proposition.
Based on the lack of New Jersey case law interpreting
McArthur or clearly addressing the propriety of seizure of a
home from within in order to secure evidence, we find that New
Jersey’s precedent was not sufficiently clear to support a
conclusion that Detective Steet violated “clearly established
law” when he entered Brown’s home to secure it. Morillo, supra,
222 N.J. at 123.
33
Finally, we note that, although police department policies
do not hold compelling weight in a qualified immunity analysis,
see City & County of San Francisco v. Sheehan, 575 U.S. ___, 135
S. Ct. 1765, 1777–78, 191 L. Ed. 2d 856, 870 (2015), Detective
Steet’s reliance on State Police training and policy is of some
value. The Supreme Court has found such policies “important to
[the Court’s] conclusion” regarding qualified immunity when “the
state of the law” at the time of the challenged conduct “was at
best undeveloped.” Wilson v. Layne, 526 U.S. 603, 617, 119 S.
Ct. 1692, 1700–01, 143 L. Ed. 2d 818, 832 (1999). When that is
the case, “it [is] not unreasonable for law enforcement officers
to look and rely on their formal . . . policies.” Id. at 617,
119 S. Ct. at 1700–01, 143 L. Ed. 2d at 832.
Here, Detective Steet’s supervisor, Sergeant Perry,
testified at trial that the State Police have an adopted policy
of allowing officers, who are securing a home pending the
issuance of a search warrant, to await the warrant inside the
home if the occupant chooses to do so. Although not
determinative or of controlling weight, we find the existence of
such policy to be informative when determining the
reasonableness of Detective Steet’s conduct, who relied on his
police training when confronted with this unsettled area of the
law. See ibid., 119 S. Ct. at 1700–01, 143 L. Ed. 2d at 832.
34
In conclusion, we hold that Detective Steet is entitled to
qualified immunity as to Brown’s NJCRA claim because regardless
of whether his conduct amounts to a violation of a
constitutional right, that right was not clearly established at
the time that he acted. See Pearson, supra, 555 U.S. at 227,
129 S. Ct. at 813, 172 L. Ed. 2d at 570 (declining to consider
constitutional violation prong based on finding no violation of
clearly established law).
VI.
Although our finding with respect to the State’s McArthur
argument resolves this matter, we pause to add clearer guidance
going forward.
New Jersey recognizes the exigency exception to the warrant
requirement. In a case of true exigency and probable cause, the
police can enter a dwelling. However, police-created exigency
“designed to subvert the warrant requirement” has long been
rejected as a basis to justify a warrantless entry into a home,
in comparison to exigency that arises “as a result of reasonable
police investigative conduct intended to generate evidence of
criminal activity,” which can justify entry. Hutchins, supra,
116 N.J. at 460, 470; see also State v. Walker, 213 N.J. 281,
295 (2013). Further, invocation of a person’s constitutional
right to refuse an officer’s request for a consent search “is
not probative of wrongdoing and cannot be the justification for
35
the warrantless entry into a home.” State v. Frankel, 179 N.J.
586, 611, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed.
2d 128 (2004); accord State v. Domicz, 188 N.J. 285, 306-09
(2006).
The State does not rely on exigency to justify entry into
Brown’s home for good reason: police-created exigency cannot
form a basis to enter a residence to secure it. In light of our
precedent, Detective Steet could not justify entry into Brown’s
home by notifying her that he was looking for a gold locket
necklace as part of a criminal investigation and then relying on
her refusal to consent. In other words, Detective Steet could
not rely on Brown’s decision to refuse consent, informed by her
newly acquired knowledge of the object of the officers’ search,
as “justification for [his] warrantless entry into [her] home,”
in violation of her rights. Frankel, supra, 179 N.J. at 611. A
person answering her door and faced with a request by a law
enforcement officer for consent to search her home for a
specific item has every right to say no and shut the door. A
person asked that question outside her home, in her yard, on her
sidewalk, or on her front steps has the equivalent right to walk
away, enter her home, and decline the officer the right to
36
enter.8 We reaffirm the primacy of one’s privacy rights in a
home.
Also, in the future, law enforcement officials may not rely
on McArthur to enter an apartment to secure it while awaiting a
search warrant. Although McArthur does not explicitly permit or
forbid entry into a home under those circumstances, our ruling
today makes clear that officers may not do so. They must get a
warrant and, if reasonably necessary, may secure the apartment
for a reasonable period of time from the outside. As a result,
because the Attorney General argues, fairly, that reliance on an
understanding of McArthur and its reach justified Detective
Steet’s entry into Brown’s home in order to secure it from
within and because New Jersey’s interpretation of McArthur was
not clearly established at the time of his conduct, we conclude
that Detective Steet is entitled to qualified immunity.
VII.
8 Here, the State cites King, supra, 563 U.S. at 466, 131 S. Ct.
at 1860, 179 L. Ed. 2d at 879, to argue that the exigency that
arose in this matter was not impermissible police-created
exigency because the detectives lawfully chose to obtain consent
to search Brown’s apartment rather than seek a search warrant.
However, this Court finds that argument unpersuasive, as the
detectives here did not merely seek Brown’s consent, but
informed her of the object of their search in doing so and then
relied on her refusal to find exigency. In any event, because
King was decided in 2011, three years after the events at issue,
this Court does not consider that case when analyzing Detective
Steet’s conduct.
37
The judgment of the Appellate Division is reversed, and the
trial court’s dismissal of this action against Detective Steet
is reinstated.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN filed a separate, dissenting opinion.
38
SUPREME COURT OF NEW JERSEY
A-71 September Term 2015
076656
DENISE BROWN,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY and JOHN
STEET, DETECTIVE (NJSP), both
in his individual and
official capacity as New
Jersey State Police
Detective,
Defendants-Appellants,
and
RICK FUENTES, COLONEL, both
in his individual and
official capacity as
Superintendent of New Jersey
State Police, CHRISTIAN
ESKRIDGE, TROOPER (NJSP),
both in his individual and
official capacity as New
Jersey State Trooper, CITY OF
VINELAND, TIMOTHY CODISPOTI,
both in his individual and
official capacity as Vineland
Chief of Police, JOSEPH
VALENTINE, both in his
individual and official
capacity as Vineland Police
Sergeant, DAVID HENDERSCOTT,
OFFICER, both in his
individual and official
capacity as Vineland Police
Officer, OFFICER SMITH, both
in his individual and
official capacity as Vineland
Police Officer, and OFFICER
1
SOTO, both in her individual
and official capacity as
Vineland Police Officer,
Defendants.
JUSTICE ALBIN, dissenting.
The constitutional protection against the unreasonable
search and seizure of a home is enshrined in the 1791 Federal
Bill of Rights and our 1844 State Constitution.1 The Founders
put in place checks against the abuse of governmental authority
to ensure the sanctity of the home. Since the beginning of the
Republic, our constitutional jurisprudence has forbidden law
enforcement officials from seizing or entering a home without a
warrant, subject to very limited exceptions. In the modern era,
the warrantless seizure or entry of a home is impermissible
absent consent or exigent circumstances. That simple
formulation of the Fourth Amendment and Article I, Paragraph 7
of the New Jersey Constitution has been clear for decades. It
should have been clear to the State Police detective who
trampled on Denise Brown’s rights in 2008.
The police had reason to believe that Brown was given a
stolen locket. She was not suspected of committing a theft or
knowingly receiving stolen property. The police had sufficient
1
N.J. Const. art. I, ¶ 6 (1844). The 1844 provision was the
same as the current Article I, Paragraph 7. N.J. Const. art. I,
¶ 7.
2
time to secure a warrant for the search of her home, but chose
instead to attempt to obtain her consent to search. She
lawfully exercised her right to deny the police consent to
rummage through every drawer in her home in search of the
locket. For exercising that right, the police seized her home
for six hours without a warrant, even though no exigent
circumstances justified their doing so. Brown was rendered a
virtual prisoner in her own home, denied even the right to use
her bathroom beyond the prying eyes of a police officer, who
watched her perform the most private of sanitary functions.
The Appellate Division found that Brown’s clearly
established constitutional right to be secure in her home and
person was violated and therefore she is entitled to damages for
the violation of her civil rights. Brown v. State of New
Jersey, 442 N.J. Super. 406, 427-28 (App. Div. 2015). The
majority agrees that the police violated her constitutional
right under our State Constitution but astonishingly concludes
that Brown’s right to be secure in her home was not clearly
established at the time. The majority thus cloaks the offending
police officer with qualified immunity and denies Brown a remedy
under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2.
I dissent because there is no legitimate support in our
jurisprudence for the majority’s decision to deny Brown relief.
I dissent because this crabbed view of our Civil Rights Act will
3
discourage claimants from seeking relief in our courts. The
majority’s parsing of our case law does not do justice to the
clearly established right to be free from an unreasonable
seizure in one’s own home -- the most basic of all rights.
I would affirm the Appellate Division and find that State
Police Detective John Steet violated Brown’s clearly established
right to be secure in her home from an unreasonable seizure.
I.
Here are the relevant facts. Burglars entered a Cape May
County residence, stealing jewelry and other items and driving
off in a blue BMW. “The home invasion was apparently a case of
drug dealers stealing from drug dealers.” Id. at 411 n.2. One
of the burglary suspects was Carlos Thomas, plaintiff Denise
Brown’s boyfriend.
About two weeks later, on November 12, 2008, Brown loaned
Thomas her blue BMW. That day, City of Vineland police officers
stopped the BMW, arrested Thomas for driving with a suspended
license, and impounded the car. The State Police also charged
Thomas with the burglary and related offenses -- charges that
later would be dismissed.
After Thomas’s arrest, the State Police received
information from the mother of the putative victim that Thomas
had given Brown a locket with diamonds that had been stolen
during the burglary. The source of the mother’s information is
4
not clear and may have been second- or third-hand hearsay.
Nothing in the record suggests that Brown had any participation
in the burglary. Indeed, Brown denied ever receiving a locket
from Thomas, and the State Police never found the locket in her
apartment or on her person.
A week later, on November 19, 2008, State Police Detective
Christian Eskridge secured a warrant to search Brown’s vehicle.
The next day, Detective Eskridge searched the vehicle,
uncovering jewelry (but no locket), drugs, and a holster that
fit the gun allegedly used in the burglary. Detective Eskridge
decided that the next step would be to search Brown’s home.
Although Detective Eskridge had probable cause to apply for a
search warrant, he chose not to do so. Instead, the plan was to
ask Brown for her consent to search her home.
That same day, at about 10:00 a.m., State Police Detectives
Eskridge and John Steet encountered Brown outside her apartment.
They asked if she would consent to the search of her home for
the locket, and she refused. She told the detectives that she
had no such locket and did not want them searching her “house on
hearsay.” She told the detectives, “[G]o to the court and . . .
get legal documentation and you’re more than welcome to search
my house.”
After Brown exercised her right to refuse consent, the
detectives gave her two unpalatable options: lock and leave her
5
apartment while they applied for a warrant or remain there under
the watchful eye of the police. The detectives at trial
admitted that because they told Brown they were looking for the
locket, they now feared she might destroy it. This self-created
exigency became the rationale for seizing Brown’s apartment,
even though the detectives conceded that they had no reason to
suspect that Brown was involved in any wrongdoing.
Brown decided to stay in her home. Detective Eskridge went
to the courthouse to apply for a warrant while Detective Steet -
- assisted by a number of back-up officers -- remained with
Brown. For three-and-one-half hours, until she had to leave for
work, Brown was shadowed in her own home. When Brown had to use
her bathroom to change a sanitary napkin, a female officer
accompanied her. Brown was allowed no vestige of privacy.
At 1:30 p.m., when Brown left for work, the State Police
secured the apartment from the outside. At about 4:00 p.m., six
hours after the apartment was first seized, Detective Eskridge
returned with a search warrant. The State Police entered the
apartment with a key provided by Brown’s mother. The State
Police apparently searched every nook and cranny in the
apartment in a vain attempt to find the locket. As noted
earlier, Brown was never charged with burglary, receiving stolen
property, or any related offense.
II.
6
Brown filed suit against the State, Detective Steet, and
others under the New Jersey Civil Rights Act (CRA), alleging the
violation of her rights under Article I, Paragraph 7 of the
State Constitution.2 After the jury returned a verdict in favor
of the State and Detective Steet, the trial court denied Brown’s
motion for judgment notwithstanding the verdict (JNOV). The
Appellate Division reversed the denial of the JNOV motion as to
Detective Steet because the evidence “indisputably” established
that the “entry into Brown’s residence before securing the
warrant was unlawful as a matter of law.” Id. at 410-11. More
specifically, the Appellate Division found that Detective Steet
was not entitled to qualified immunity because his “own
testimony establishes, unequivocally, that his warrantless entry
into Brown’s home without consent or exigent circumstances
violated her rights under our State Constitution” and because
the constitutional rights violated by Detective Steet were
clearly established at that time. Id. at 427-28.
The Appellate Division soundly decided that qualified
immunity did not apply to Detective Steet’s actions.
III.
A.
2
The claims against other defendants were dismissed before or
after trial. In addition, all claims under the Fourth Amendment
were dismissed.
7
The CRA, like its federal corollary, 42 U.S.C.A. § 1983,
permits government officials to raise qualified immunity as a
defense. “Qualified immunity is a doctrine that shields
government officials from a suit for civil damages when ‘their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Gormley v. Wood-El, 218 N.J. 72, 113 (2014) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738,
73 L. Ed. 2d 396, 410 (1982)).
“For a right to be clearly established, ‘[t]he contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.’”
Ibid. (alteration in original) (quoting Anderson v. Creighton,
483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523, 531
(1987)). Thus, “[o]fficials are expected to ‘apply general,
well-developed legal principles’ in ‘analogous factual
situations’” rather than “require ‘relatively strict factual
identity’ between applicable precedent and the case at issue.”
Id. at 114 (quoting Stoneking v. Bradford Area Sch. Dist., 882
F.2d 720, 726 (3d Cir. 1989)).
B.
Article I, Paragraph 7 of the New Jersey Constitution
provides “[t]he right of the people to be secure in their
persons [and] houses . . . against unreasonable searches and
8
seizures, shall not be violated.” N.J. Const. art. I, ¶ 7; see
also U.S. Const. amend. IV (same). The “chief evil” against
which Article I, Paragraph 7 of our State Constitution and the
Fourth Amendment are directed is the unlawful entry of the home
by government officials. State v. Walker, 213 N.J. 281, 289
(2013) (quoting State v. Hutchins, 116 N.J. 457, 462-63 (1989)).
Indeed, “[t]he sanctity of one’s home is among our most
cherished rights.” State v. Frankel, 179 N.J. 586, 611, cert.
denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004).
The search or seizure of a home without a warrant is
presumptively unreasonable and prohibited unless the police
possess probable cause and act under exigent circumstances or,
alternatively, receive the consent of the homeowner. State v.
Johnson, 193 N.J. 528, 552 (2008).
Consent is not an issue in this case. Brown exercised a
fundamental constitutional right: she refused to give the State
Police detectives consent to enter or search her apartment and
insisted they obtain a warrant. See Frankel, supra, 179 N.J. at
611. “The assertion of that constitutional right, which
protects the most basic privacy interests of our citizenry, is
not probative of wrongdoing and cannot be the justification for
the warrantless entry into a home.” Ibid.
No other exception to the warrant requirement permitted the
State Police to seize or enter Brown’s apartment. Detective
9
Steet cannot rely on the exigent-circumstances exception. “For
purposes of a warrantless search, exigent circumstances are
present when law enforcement officers do not have sufficient
time to obtain any form of warrant.” Johnson, supra, 193 N.J.
at 556 n.7. For example, when police officers have probable
cause to conduct a search but insufficient time to secure a
warrant before the potential destruction of evidence,
exigent circumstances are present. Hutchins, supra, 116 N.J. at
464.
Here, the State Police detectives had probable cause to
apply for a warrant to search Brown’s apartment before they
arrived at Brown’s home and made their consent request. Instead
of getting a warrant, however, they took the more convenient
path. The search or seizure of a home cannot be justified by a
claim of exceptional or exigent circumstances when “[n]o reason
is offered for not obtaining a search warrant except the
inconvenience to the officers and some slight delay necessary to
prepare papers and present the evidence to a magistrate.”
Johnson v. United States, 333 U.S. 10, 14-15, 68 S. Ct. 367,
369, 92 L. Ed. 436, 440-41 (1948).
The police, moreover, cannot create their own exigency to
bypass the warrant requirement. See Hutchins, supra, 116 N.J.
at 475-76. To satisfy the exigent circumstances exception, the
State must establish that the “exigent circumstances were not
10
police-created.” Walker, supra, 213 N.J. at 295. The position
taken by Detective Steet is that once he and Detective Eskridge
disclosed to Brown that they needed to search her apartment for
a stolen locket, her denial of consent gave them a basis to
believe she would conceal or destroy potential evidence and
therefore a basis to secure the apartment. That reasoning
suggests that the detectives not only drew an impermissible
inference that Brown would engage in wrongdoing from the
assertion of her constitutional right, but also created the very
exigency that justified their violation of the warrant
requirement.
The majority agrees that exigency did not justify the
seizure of or entry into Brown’s apartment. Ante at ___ (slip
op. at 36-37). Nevertheless, the majority mistakenly suggests
that Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L.
Ed. 2d 838 (2001), left uncertain the law concerning when and
how police officers may secure a home while awaiting a warrant.
Ante at ___ (slip op. at 23-24). A close look at McArthur,
however, reveals that the United States Supreme Court applied
garden-variety notions of exigency to justify the securing of
the home in that case.
IV.
In McArthur, supra, for the purpose of keeping the peace,
two police officers accompanied Tera McArthur to the trailer
11
where she lived with the defendant -- her husband -- so she
could remove her belongings. 531 U.S. at 328, 121 S. Ct. at
948, 148 L. Ed. 2d at 846. After Tera emerged from the trailer,
where the defendant was present, she told one of the officers
that the defendant had “dope” in the trailer and had just slid
some “underneath the couch.” Id. at 329, 121 S. Ct. at 948-49,
148 L. Ed. 2d at 846. That officer knocked on the trailer’s
door, told the defendant what his wife had said, and asked for
consent to search the trailer. Id. at 329, 121 S. Ct. at 949,
148 L. Ed. 2d at 846. The defendant denied consent. Ibid. The
officer told the defendant, who at this point was on the
trailer’s porch, that he could not reenter the trailer unless
escorted by an officer. Ibid. In the meantime, the other
officer was sent to secure a search warrant. Ibid. In less
than two hours, the other officer obtained a warrant, and the
ensuing search of the trailer uncovered marijuana. Ibid.
The Supreme Court upheld the temporary securing of the
trailer as reasonable because the case “involve[d] a plausible
claim of specially pressing or urgent law enforcement need,
i.e., ‘exigent circumstances.’” Id. at 331, 121 S. Ct. at 950,
148 L. Ed. 2d at 847 (emphasis added). The Court specifically
found that “the police had good reason to fear that, unless
restrained, [the defendant] would destroy the drugs before they
could return with a warrant.” Id. at 332, 121 S. Ct. at 950,
12
148 L. Ed. 2d at 848. That was so because, before seeking the
defendant’s consent to search, the police had reason to believe
that the defendant could deduce that his wife told them about
the marijuana stash. Ibid. Thus, the police came to a fair and
logical conclusion that the defendant, “suspecting an imminent
search, would, if given the chance, get rid of the drugs fast.”
Ibid.
The present case and McArthur contrast in many ways. In
our case, Brown’s denial of entry triggered the police-created
exigent circumstances that led to the seizure of her apartment.
Importantly, Brown was not a suspect, and the police had no
articulable basis to believe she would destroy evidence of a
crime.
In McArthur, the police could not have secured a search
warrant before they accompanied the wife to the trailer. The
police learned that the defendant had a stash of marijuana in
the trailer after arriving on the scene and then immediately
concluded he might destroy the evidence before they could secure
a warrant. That is the essence of exigent circumstances -- the
urgent need to preserve evidence pending a warrant application.
Another key point in McArthur, unlike the present case, is that
exigent circumstances preexisted the consent-to-search request
made by the police.
In short, the Supreme Court in McArthur applied well-
13
established principles concerning the exigent-circumstances
exception to the warrant requirement. See id. at 330-33, 121 S.
Ct. at 949-51, 148 L. Ed. 2d at 847-49. The Court upheld the
“temporary” seizure of the trailer because the police action
“was supported by probable cause and was designed to prevent the
loss of evidence while the police diligently obtained a warrant
in a reasonable period of time.” Id. at 334, 121 S. Ct. at 951-
52, 148 L .Ed. 2d at 849 (emphasis added).
In the wake of McArthur, courts understood, as they always
have, that the securing of a home -- awaiting a warrant
application -- cannot be justified absent exigent circumstances.
See, e.g., Modrell v. Hayden, 636 F. Supp. 2d 545, 557 (W.D. Ky.
2009) (“McArthur did not invalidate the ‘presumptively
unreasonable’ standard normally applied when determining whether
exigent circumstances justified a warrantless entry.”); United
States v. Sims, 435 F. Supp. 2d 542, 548 (S.D. Miss. 2006)
(“[U]nless exigent circumstances exist (or unless another
exception to the warrant requirement is applicable), a law
enforcement official has no right to enter a dwelling to detain
a suspect in an attempt to secure the premises.”).3
3
Before McArthur, too, courts required the presence of exigent
circumstances to justify the securing of a home while pending a
warrant application. See, e.g., United States v. Radka, 904
F.2d 357, 361 (6th Cir. 1990) (“[W]arrantless entry into the
home of a suspected drug trafficker, effected without an
objectively reasonable basis for concluding that the destruction
14
V.
Additionally, I do not agree with the majority’s assertion
that, since McArthur, the Appellate Division and Law Division
have “not advanced a uniform interpretation of the law”
concerning the appropriate standard for securing a home pending
a search-warrant application. Ante at ___ (slip op. at 24-25).
Our courts recognize that the exigent-circumstances doctrine is
the governing standard. See State v. Myers, 357 N.J. Super. 32,
37 (App. Div. 2003) (framing relevant inquiry as “whether
exigent circumstances justified the securing of the [home in
question] while the police sought a search warrant”); State v.
Josey, 290 N.J. Super. 17, 24 (App. Div.), certif. denied, 146
N.J. 497 (1996) (observing that “a warrantless entry into a home
may be valid if warranted by exigent circumstances, such as hot
pursuit of an armed felon . . . [or t]he potential destruction
of evidence”); State v. De Lane, 207 N.J. Super. 45, 50 (App.
of evidence is imminent, does not pass constitutional muster.”);
State v. Martin, 679 P.2d 489, 497-98 (Ariz. 1984) (finding
warrantless seizure of home not justified under exigency
exception because inferences did not support belief that
evidence would be destroyed in home pending search warrant);
State v. Dorson, 615 P.2d 740, 745 (Haw. 1980) (finding that
detention of several people in home while awaiting warrant was
“patently inexcusable” and holding that “required condition
precedent to the entry [of home pending warrant] has been the
existence of exigent circumstances”); State v. Bean, 572 P.2d
1102, 1105 (Wash. 1978) (concluding that no exigent
circumstances justified police entering defendant’s home to
“secure” it while awaiting search warrant).
15
Div. 1986) (finding that absent exigent circumstances police
could not enter home absent warrant); State v. Speid, 255 N.J.
Super. 398, 403, 406 (Law Div. 1992) (stating, in part, that
police acted unconstitutionally by securing and searching
defendant’s home without warrant absent exigent circumstances or
consent).
VI.
The police are obliged to obey the Constitution. Denise
Brown had a clearly established right to insist that the police
obtain a warrant before searching her home for a locket she told
them she did not have. The police could have secured that
warrant earlier but chose not to do so. She had a clearly
established right to remain secure in her home, pending the
arrival of that warrant, given the absence of any true exigent
circumstances to justify a seizure of her apartment. Yet, the
police treated her like a prisoner in her own home for three-
and-one-half hours.
Like the Appellate Division, I find that Detective Steet
violated Brown’s clearly established rights protected by Article
I, Paragraph 7 of our State Constitution, and therefore he is
not entitled to the protection of qualified immunity. The
majority has denied Brown her rightful claim to a recovery for
the violation of her civil rights.
Accordingly, I respectfully dissent.
16