Newark, NJ- A search warrant is a valuable tool to law enforcement, but the scope of a search warrant can be vague and sometimes law enforcement unintentionally goes beyond the scope of the warrants they are issued and conduct unconstitutional searches. The scope of a search warrant is a common source of disagreement in criminal cases and one that was recently addressed by the New Jersey Supreme Court, which I will discuss in this blog.
That case is State vs. Chad Bivins. For the case, the New Jersey Supreme Court was asked to decide if the evidence obtained while police in Camden County executed a search warrant, which covered “all persons present,” should have been suppressed in the criminal trial of two men arrested for drug possession near the home that was covered by the warrant.
Law enforcement officers obtained the warrant for a residence on Park Boulevard which they believed to be the center of drug trafficking operation. They planned to execute the warrant one night in March of 2011 and took certain steps to increase the odds of a successful operation.
The steps law enforcement took included serving the warrant at night, entering through the back of the residence, and stationing officers in exit areas outside the home just in case any occupants decided to flee. In their warrant request, officers noted that they observed suspected drug activity at the targeted home 24-hours a day, and people were moving in and out of the residence “at all times,” according to the court opinion.
According to the NJ Supreme Court opinion, as law enforcement was about to execute the warrant at the home, Trooper Moore, who was stationed several blocks away from the home, was awaiting orders and observing in case anyone from the home attempted to escape. He began to move closer to the targeted home after getting a call from his fellow officers that they were entering the home.
In court testimony, Trooper Moore said that “almost immediately” after receiving the call that the warrant was being executed, he received another call from another officer who saw two men leaving the home as the warrant was being served, and said they walked in the direction of a gray Pontiac parked on the street. Soon after that call, as they got closer to the home, Trooper Moore and his partner located the Pontiac, which was parked several doors down from the home. Trooper Moore found two men sitting inside the vehicle and assumed they were the two men his colleague saw leaving the residence. Both officers proceeded to conduct a search of both men and the vehicle under the premise that the warrant for the search of the home included the car, which was in nearby.
During the search, Trooper Moore and his partner found 35 bags of cocaine on both men, along with some case. They then arrested and charged both men with several counts related to drug possession and trafficking charges.
At trial, Bivins moved to have the evidence obtained in the search suppressed, but his motion was denied, and he was convicted of possession drugs in a school zone. Bivins appealed the decision, asserting that the search was outside of the scope of the warrant, and the way the evidence was obtained violated his Fourth Amendment protections against unreasonable search and seizure. The Appellate Court reversed the trial court’s denial of the motion to suppress evidence because they concluded the Pontiac was not under the scope of the warrant issued for the residence. The state appealed to the Supreme Court.
The Appellate Court, based on the U.S. Supreme Court decision in Bailey vs. the United States, concluded that a warrant to search a residence does not give police sufficient probable cause to conduct a search of a person or property just because they are in the “immediate vicinity.” Even though the Pontiac wasn’t far from the targeted house– only several doors down—the court concluded that it was not in the “immediate vicinity” of the house.
The appeals panel also concluded that Trooper Moore did not have probable cause to conduct the search of Bivins of Jordon because he did not see the two men exit the home. Furthermore, the appeals court concluded that the state could not show that either man knew the home was being searched.
The NJ Supreme Court sided with the appeals court and upheld their reversal of the motion to dismiss. The decision determined that the state did not meet the necessary burden of proof to say with certainty that Bivins and Jordon were the two individuals that fled the targeted house. Because neither the officers nor the state could establish that the two men fled the house, the justices concluded that the men did not fall under the “all persons present” part of the warrant.
The scope of a search warrant is a commonly litigated issue in Appellate Courts, state Supreme Courts, and the U.S. Supreme Court. It’s a subject that I’ve covered in a previous blog. That is because decisions in these types of cases have an impact on how I approach each client’s defense. If you are facing a criminal charge in Newark or surrounding areas, contact my office at and we can arrange a case evaluation.
Nevertheless, we agree with the Appellate Division that this search cannot be sustained. We conclude that the State did not provide an adequate evidential basis linking defendant’s presence to the location for which the all-persons-present search warrant was issued. Accordingly, this must be viewed as a warrantless search that lacked probable cause to support the search of defendant when he was found in the parked car.