NJ Criminal Defense Law News & Information Blog

For the Time Being The Police Still Can’t Seize the Pot Smoking King in his Castle Without a Warrant When His Castle is in New Jersey

By Ryan J. Clark, Esq.

Every day in New Jersey the police are out on our streets, roads, and highways, searching our cars and our persons without first getting a warrant.  In the vast majority of cases they are justifying these searches with a claim that they can smell marijuana, either in its raw form or the burnt smell of marijuana smoke.  On May 16, 2010 the U.S. Supreme Court, in Kentucky v. King, seemed to give the cops another place they can conduct warrantless searches when they claim they smell marijuana.  Shockingly, this time it was our homes.  However, on June 28, 2011, the New Jersey Appellate Division, in State v. Walker, quickly responded, rejecting the holding in King, and saying, in essence, that in New Jersey State cases at least, your home is still your castle and the police cannot create the emergency they use to justify entering your home without a warrant.

In order to understand these two cases it’s important to lay out some of the basics of Constitutional law.  Your rights in New Jersey come not only from the U.S. Constitution but also from the New Jersey State Constitution.  In essence the U.S. Constitution, (and the way it has been interpreted by the Federal Courts), provides the floor, i.e. the minimum level of constitutional protection below which no state court can go.  The New Jersey State Constitution, (and the way it has been interpreted by the New Jersey State Courts), can provide a higher level of protection of individual rights than has been granted by the U.S. Constitution.  Hence, there is always a bit of political and legal football going on between the Federal and New Jersey Courts.  Once the Federal Courts decide what the minimum protections under the U.S. Constitution are,  the New Jersey Courts can then decide whether they want to provide more protection on independent New Jersey State Constitutional grounds.  If the New Jersey Courts decide to provide more protection, it creates a situation where defendants being prosecuted in New Jersey State Court are granted higher levels of constitutional protection than defendants being prosecuted in Federal Court.

The Exclusionary Rule; Key Stone of Search and Seizure Law

Another important Constitutional principle, which is a key stone of search and seizure law,  is the exclusionary rule, more commonly referred to as the suppression of evidence.  Simply put, if the police violate your rights under the U.S. or New Jersey Constitutions, any evidence they obtain as a result cannot be used in the prosecution and gets suppressed.  That is why in New Jersey criminal cases where the police take statements from an accused, seize drugs, CDS, guns, or any kind of evidence that tends to connect someone to a crime, it is essential to have a qualified and experienced criminal attorney evaluate the circumstances that led to the police obtaining the evidence.  I cannot stress enough that the rules of search and seizure are highly complicated and fact specific, however they can provide the key to successfully having an entire case thrown out of court.

Mistaken Identity

So what happened in the Federal case King and the New Jersey case Walker?  First we will look at the facts of these two cases.  In King, Kentucky police officers saw a hand to hand drug deal and followed the dealer into a common area of an apartment building.  In the common area there were two doors that led to the only two apartments in the building.  The dealer went into one but the police were not sure which apartment.  They smelled burnt marijuana coming from under one of the doors so they knocked on that door and identified themselves as the police.  The police then heard noises they thought could be the noises of someone destroying drugs inside that apartment.  They kicked in the door and observed marijuana inside the apartment.  They then seized the marijuana and arrested everyone inside the apartment.  Low and behold, the police actually got it wrong.  The drug dealer they were looking for was in the other apartment.

Informant’s Tip – But No Search Warrant

In Walker, the Newark police knocked on Rashad Walker’s front door based on an informant’s tip.  They did not have a warrant.  Mr. Walker answered the door with a burning joint in his mouth and when he figured out who was at his door he tried to close the door and flee into his apartment.  The police pushed their way in and apprehended Mr. Walker in his home.  When inside they recovered the marijuana cigarette as well as other controlled dangerous substances, cocaine and heroin.

Now the 4^th Amendment to the U.S. Constitution requires the police to get a warrant before they can enter a suspect’s residence unless there is an emergency.  The courts have previously held classic cases like the hot pursuit of a fleeing armed robber constitute a valid emergency.  Both the Federal and New Jersey Courts have expressly rejected the notion that an emergency is created by the smell of marijuana alone.  In King, however, the U.S. Supreme Court added the destruction of evidence, namely marijuana that the police smelled from outside the residence coupled with noises that might be consistent with the destruction of that marijuana, to the list of emergencies that negated the warrant requirement.  All of the justices agreed except Justice Ruth Bader Ginsburg who dissented.  Her main point was the police should not be allowed to create the emergency, and that by knocking on a door they had no right to enter without a warrant, they in effect created the emergency.

In the Walker case, a two judge panel of the New Jersey Appellate Division, (the mid-level appeals court), agreed with Justice Ginsburg.  These judges essentially concluded that the only reason Walker would have been destroying the evidence in the first place is because the police knocked on his front door.  They reasoned that the emergency was therefore created by the police,  and because they created it, there was no reason to lift the warrant requirement.

New Jersey Search and Seizure Law Remains Unsettled

So does this mean the issue is settled in New Jersey?  Is the pot smoking king safe from cops who knock on his door without a warrant?  The answer is yes for the time being, but don’t hold your breath.  The Walker case is still open.  Of course the New Jersey State Attorney General’s office is appealing this decision to the New Jersey State Supreme Court who will have the final word.  If the New Jersey Supreme Court agrees with the lower court it will create another one of those instances where defendants being prosecuted in New Jersey State Court will have more constitutional protections than those being prosecuted in Federal Court under the same facts.

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