PLEASE HAVE APPEARANCED OF COUNSEL? DEBORAH BARTOLOMEY: DEBORAH BARTOLOMEY,
DEPUTY ATTORNEY GENERAL ON BEHALF OF THE STATE. STEFAN VAN JURA: STEFAN VANJURA
ON BEHALF OF CHRISTOPHER RADEL. TAMAR Y. LERER: TAMAR LERER, PUBLIC DEFENDER.
DAVID M. GALEMBA: DAVID GALEMBA, ACTING ASSISTANT PROSECUTOR.
JASON LE BOEUF: JASON LEBOEUF, AMICI CURIAE. CHIEF JUSTICE RABNER: MS. BARTOLOMEY,
PLEASE GO AHEAD. AND WE WILL OF COURSE BE CONSOLIDATING THE ARGUMENTS FOR BOTH CASES
THROUGHOUT THE PROCEEDINGS THIS MORNING. DEBORAH BARTOLOMEY: THANK YOU, YOUR
HONOR. IF I COULD RESERVE A FEW MINUTES FOR REBUTTAL. CHIEF JUSTICE RABNER:
YES. DEBORAH BARTOLOMEY: THANK YOU. MAY IT PLEASE THE COURT, MARILYN VERSUS
BUIE ANNOUNCED AN EXCEPTION TO THE WARRANT REQUIREMENT ALLOWING POLICE DURING AN IN-HOME
ARREST TO CONDUCT A BRIEF AND TARGETED SEARCH WHEN IT'S NEEDED TO DISPEL A REASONABLE
RISK OF DANGER FOR THOSE ON THE ARREST SCENE. THAT IS, BUIE CREATED AN EXCEPTION FOR
A HOME ARREST N THIS CASE, THE ISSUE IS WHETHER POLICE OFFICERS MAY ENTER A HOME AFTER
AN OUTSIDE ARREST TO CONDUCT A PROTECTIVE SWEEP UNDER BUIE PRINCIPLES. EVERY FEDERAL
CIRCUIT AND MANY STATE COURTS HAVE CONSIDERED WHETHER AN OUTDOOR ARREST PRECLUDES
APPLICATION OF THE BUIE PRINCIPLES, AND EVERY COURT HAS HELD THAT IT DOES NOT. THE SOLE
EXCEPTION IN THIS OCCASION, RARE, INSTEAD OF FOLLOWING OR EVEN ADDRESSING THE UNANIMOUS
PRECEDENT, THE APPELLATE PANEL FORMULATED A PER SE RULE THAT THE PROTECTIVE SWEEP EXCEPTION
IN ALL CASES STOPS AT THE DOORSTEP. THE ONE SIZE FITS ALL APPROACH IS DISFAVORED BY THIS
COURT, WHICH RESOLVES SEARCH AND SEIZURE ISSUES USING REASONABLENESS AS A TOUCHSTONE,
RECOGNIZING THAT THE FACTS OF THESE CASES ARE SO VARIOUS THAT NO TEMPLATE IS LIKELY TO
PRODUCE OF CIRCUMSTANCES IN ANY GIVEN CASE. AFTER ANNOUNCING ITS PER SE RULE,
THE PANEL SCRUTINIZED THE FACTS. UNFORTUNATELY, THE PANEL's TREATMENT OF THE FACTS WAS
A MATTER OF ISOLATING, MINIMIZING AND DISMISSING EACH FACT THAT INDICATE TO DO THE WELL
TRAINED POLICE OFFICERS ON THE SCENE THE POSSIBILITY THAT A DANGEROUS PERSON COULD
HAVE BEEN INSIDE THE HOME. NOR WAS ANY DEFERENCE SHOWN TO THE MOTION COURT'S FACTUAL
DETERMINATIONS. BECAUSE THE APPELLATE COURT DISAGREED WITH HOW THE MOTION JUDGE WEIGHED
THE EVIDENCE, IT RE-APPRAISED THE RECORD WITHOUT ANY SHOWING THAT THE MOTION JUDGE WAS
CLEARLY MISTAKEN AND THE APPELLATE COURT SUBSTITUTED ITS OWN FINDINGS. FOR
THESE REASONS, WE ASK THIS COURT TO REVERSE THE APPELLATE DIVISION OPINION IN THIS CASE
AND TO REINSTATE THE DENIAL OF DEFENDANT'S MOTION TO SUPPRESS. THAT CONCLUDES MY STATEMENT.
CHIEF JUSTICE RABNER: IN RADEL, CAN YOU FOCUS WITH US FIRST ON THE UNDERLYING
DOCUMENT, THE OCTOBER 27TH ORDER AND TELL US WHAT IT ACTUALLY AUTHORIZES THE POLICE TO DO.
WE KNOW IT'S NOT A SEARCH WARRANT AND IT DIRECTS THAT THEY RETRIEVE FIREARMS. WHAT DOES
THAT EMPOWER POLICE, SPECIFICALLY WHAT CAN THEY ACTUALLY DO WITH AN ORDER OF THAT NATURE?
DEBORAH BARTOLOMEY: WELL, I THINK THAT THE ORDER, THE OCTOBER 27TH ORDER IS
A SHOWING THAT A JUDICIAL MAGISTRATE RATHER THAN A POLICEMAN IN THE COMPETITIVE BUSINESS
OF FERRETING OUT CRIME HAS PROBABLE CAUSE THAT DEFENDANT HAS A FIREARM TO THE POINT WHERE
EVEN THE SERIAL NUMBER ON THE FIREARM IS IN THE ORDER. SO THAT MUCH IS CLEAR.
CHIEF JUSTICE RABNER: HOW ABOUT WITH RESPECT TO ENTRY INTO A HOME? WHAT DOES IT AUTHORIZE?
DEBORAH BARTOLOMEY: WELL, THEY HAVE ARREST WARRANTS AND THIS. I THINK THEY COULD
HAVE GONE AND KNOCKED ON THE DOOR AND HAD THE DEFENDANT APPEARED AT THE DOOR THEY COULD
HAVE ASKED HIM, YOU KNOW, DO YOU HAVE THIS GUN IN THE HOUSE? WE'D LIKE TO, YOU KNOW,
RETRIEVE IT. HERE'S THE COURT ORDER THAT YOU WERE SENT IN THE MAIL. CHIEF
JUSTICE RABNER: WHAT IF A DEFENDANT AT THAT MOMENT DECLINES TO ACCOMMODATE TO RESPOND
AND THERE'S NO BASIS THAT THE POLICE HAVE TO THINK THAT THERE'S ANOTHER PERSON WHO POSES
A DANGER IN THE HOUSE? MAY THE POLICE ENTER THE HOME IN RELIANCE ON THIS ORDER?
DEBORAH BARTOLOMEY: WHEN HE DECLINES TO -- CHIEF JUSTICE RABNER: YES.
DEBORAH BARTOLOMEY: -- AND HE DOESN'T MOVE, HE DOESN'T -- I THINK AT THAT TIME THEY PROBABLY
WILL HAVE TO GET AN ARREST WARRANT -- I MEAN A SEARCH WARRANT AS THEY DID HERE. BECAUSE
THEY HAD THE ORDER TO RETRIEVE THE GUNS, BUT IT'S NOT A SEARCH WARRANT. CHIEF
JUSTICE RABNER: HOW ABOUT IF AN ORDER LISTS NO ADDRESS BUT IS OTHERWISE IDENTICAL TO WHAT'S
CONTAINED HERE. COULD THE POLICE ENTER A HOME? DEBORAH BARTOLOMEY: WITHOUT
A PROTECTIVE SWEEP EXCEPTION OR ANY PRINCIPLES? AN ARREST WARRANT, WHEN THEY ARREST HIM,
YES, I THINK THEY CAN ENTER THE HOME. SO THIS IS NOT REALLY A WARRANT FOR HIM. I MEAN,
IF HE RAN INSIDE OR DID SOMETHING -- IF YOU'RE POSITING THAT NOTHING HAPPENS, HE JUST
COMES TO THE DOOR AND JUST SAYS NO RIGHT AT THE DOOR, THEN I GUESS THEY WOULD HAVE TO
GET A SEARCH WARRANT. AT LEAST THAT'S THE WAY THEY INTERPRETED IT HERE. CHIEF
JUSTICE RABNER: TAKE IT BACK FROM THE FIRST SET OF QUESTIONS. SUPPOSING IN LIEU OF THE
ORDER WE HAVE HERE THERE'S AN ORDER THAT HAS NO ADDRESS. DEBORAH BARTOLOMEY:
NO ADDRESS. CHIEF JUSTICE RABNER: WHAT ARE THE POLICE EMPOWERED TO DO IN
RELIANCE ON THE ORDER? DEBORAH BARTOLOMEY: THEY CAN STOP HIM. I DON'T SEE
WHY THEY CAN'T RING HIS DOORBELL. IF THEY KNOW HE LIVES THERE, BECAUSE THEY'VE BEEN WATCHING
HIM LIKE THEY WERE IN THIS CASE. CHIEF JUSTICE RABNER: AND CAN THEY ENTER
THE HOME? DEBORAH BARTOLOMEY: TO DO THE ARREST WITHOUT THE SPECIFICITY?
I BELIEVE THEY COULD. ON AN ARREST WARRANT OR FOR JUST THIS GUN SEIZURE? CHIEF
JUSTICE RABNER: THE GUN SEIZURE. DEBORAH BARTOLOMEY: THEY THOUGHT THEY COULD
NOT. THAT'S WHY THEY WANT TO DO GET THE SEARCH WARRANT. JUSTICE ALBIN: YOU'VE
INDICATED AT THE BEGINNING THAT THEY HAD PROBABLE CAUSE TO BELIEVE THAT THERE WAS A GUN
INSIDE THE HOME, CORRECT? DEBORAH BARTOLOMEY: CORRECT. JUSTICE
ALBIN: SO THEY SHOULD HAVE GOTTEN THE SEARCH WARRANT IN ADVANCE, CORRECT? THEY HAD THE
PROBABLE CAUSE BUT THEY DID NOT GO THROUGH THE TROUBLE OF GETTING A SEARCH WARRANT.
DEBORAH BARTOLOMEY: I DON'T BELIEVE THAT'S WHY, YOUR HONOR. THEY DID NOT HAVE THE ADDRESS
AT THAT TIME. WHAT THEY DID WAS GO TO THE HOUSE TO TRY TO GET THE GUN VOLUNTARILY. THEY
KNEW HE EITHER LIVED AT 103 OR AT NUMBER 81. SO THEY COULD NOT HAVE GOTTEN A SEARCH WARRANT
WITHOUT, YOU KNOW, BEING ABLE TO IDENTIFY THE SPECIFIC PLACE TO BE SEARCHED. SO I THINK
THAT THIS -- AND ALSO LET'S -- JUSTICE ALBIN: LOOK, THEY THOUGHT HE WAS AT
ONE ADDRESS. THEY HAD A WHOLE TEAM OF POLICE OFFICERS THERE. THEY DIDN'T BOTHER TO GET
A SEARCH WARRANT FOR EITHER ADDRESS. AM I CORRECT? DEBORAH BARTOLOMEY: NO.
BUT WHAT THEY WERE -- THEY WERE BETWEEN THOSE TWO ADDRESSES TRYING TO FIND OUT WHERE HE
LIVED, YOUR HONOR. ALSO -- JUSTICE ALBIN: WELL, TELL ME IF I'M MISTAKEN
ABOUT THIS. WHEN THEY WENT OUT THERE, THEY THOUGHT THEY KNEW WHERE HE LIVED.
DEBORAH BARTOLOMEY: I'M NOT SURE ABOUT THAT, YOUR HONOR. I BELIEVE THAT'S WHY THEY WERE
WATCHING BOTH HOUSES. I BELIEVE THAT WAS AT THAT TIME -- LULU DIDN'T THE ORDER HAVE THE
WRUN 03 BROWERTOWN ROAD ADDRESS? BECAUSE THAT WAS THE ADDRESS ON THE ORDER WHERE THEY WERE
DIRECTED TO GO SEIZE THE FIREARMS. SO THAT'S WHERE THEY INITIALLY BELIEVED HE LIVED.
DEBORAH BARTOLOMEY: SINCE THEN THEY HAD INDICATION THAT HE MIGHT BE LIVING
AT 81. SO THEY REALLY WERE TRYING, I BELIEVE, TO KIND OF NAIL THAT DOWN. AND ALSO.
CHIEF JUSTICE RABNER: LET ME STOP YOU FOR A SECOND. I WANTED YOU TO CLARIFY
WHAT MAY HAVE BEEN DIFFERENT ANSWERS OR MAYBE I HEARD IN-CORRECTLY. I THOUGHT AT THE
OUTSET YOU SAID THE ORDER PROBABLE CAUSE HE HAD A GUN AND THEN YOU SAID TO JUSTICE ALBIN
HE HAD A GUN IN THE RESIDENCE. WHICH IS IT. DEBORAH BARTOLOMEY: I THINK IN
THE RESIDENCE THAT'S AN INFERENCE FROM WHERE ELSE DO PEOPLE NORMALLY KEEP THEIR GUNS.
BUT THEY DON'T KNOW WHAT THE ADDRESS IS. CHIEF JUSTICE RABNER: THAT'S NOT
ENOUGH TO ESTABLISH PROBABLE CAUSE THOUGH, IS IT. DEBORAH BARTOLOMEY: WELL,
THAT HE'S BREAKING THE LAW AND HE HAD A GUN -- CHIEF JUSTICE RABNER: HE HAD
A GUN IN A PARTICULAR RESIDENCE. DEBORAH BARTOLOMEY: WELL, IN HIS HOME. AND
THIS ORDER DOES NOT SAY THE CORRECT RESIDENCE. WE'VE NEVER SAID THIS IS A SEARCH WARRANT.
JUSTICE FERNANDEZ-VINA: IF SOMEONE HAS A GUN AND THE POLICE DETERMINE THEY'RE
IN THE HOME, ISN'T IT REASONABLE THE PERSON IS GOING TO LEAVE THE GUN LAYING OUT IN THE
FRONT LAW, HE PROBABLY HAS IT IN THE HOUSE? ISN'T THAT A REASONABLE INFERENCE?
DEBORAH BARTOLOMEY: I WOULD THINK YES, YOUR HONOR. WELL, IN THE GARAGE OR THE CAR AND
I BELIEVE IN THIS CASE IT WAS BUT THEY GOT A SEARCH WARRANT FOR ALL THREE PLACES. SO
IF YOU ALREADY HAVE PROBABLE CAUSE, WHAT BENEFIT IS IT TO THESE POLICE OFFICERS TO GO
THERE AND NOT BRING A SEARCH WARRANT. THEIR INTENT WAS NOT TO SEARCH THE HOUSE. THEIR
INTENT IT'S VERY CLEAR WAS JUST TO GET THIS GUN. HE HAD NO RIGHT TO HAVE THE GUN --
JUSTICE ALBIN: IF THE GUN IS IN THE HOUSE AND THEY DON'T HAVE A SEARCH WARRANT,
HOW ARE THEY GOING TO GET THE GUN? DEBORAH BARTOLOMEY: WELL, I THINK THEY
THOUGHT THAT HIS MOTHER WOULD HELP TO ARRANGE IT. THEY HAD ALSO BEEN CONTACTING HIS LAWYER.
I MEAN, THESE ARE NOT POLICE OFFICERS THAT ARE JUST TRYING TO GET IN HIS HOUSE.
JUSTICE ALBIN: THIS ISN'T ONE POLICE OFFICER KNOCKING ON THE DOOR. THIS IS ALMOST A SWAT
TEAM COMING DOWN ON THE HOUSE. DEBORAH BARTOLOMEY: WELL, THEY HAVE TO BE
CAREFUL. THEY'RE COLLECTING -- JUSTICE ALBIN: I'M NOT SAYING THAT THEY
SHOULDN'T BE CAREFUL. BUT IT GOES TO, LIKE, WHAT WERE THEY INTENDING TO DO NOW THAT THEY HAD
A SQUAD OF POLICE OFFICERS THERE? DEBORAH BARTOLOMEY: WELL, WHAT ROBERT --
WHAT THE DETECTIVE TESTIFIED TO WAS HE CALLED THE MOTHER. THEY HAD A CONVERSATION. SHE WAS
BEING EVASIVE. SHE SAID SHE WOULD GET AHOLD OF HIM AND GET BACK TO HIM. SO THEY SETTLED IN
TO WAIT FOR THE MOTHER TO CALL BACK AND IN THE MEANTIME BEFORE THE MOTHER CALLED BACK,
THE DEFENDANT CAME OUT OF HIS HOUSE. SO, I MEAN -- JUSTICE ALBIN:
LET ME ASK YOU A QUESTION ABOUT HOW FAR HE CAME OUT OF THE HOUSE. SO HE COMES OUT WITH
A LAUNDRY BASKET TO BUT IN HIS CAR. IT'S IN THE DRIVEWAY, CORRECT? DEBORAH
BARTOLOMEY: YES, YOUR HONOR. JUSTICE ALBIN: HOW MANY FEET WAS THAT CAR FROM
THE FRONT DOOR? DEBORAH BARTOLOMEY: I DON'T THINK THAT'S IN THE RECORD, BUT
IT'S A VERY SMALL FRONT LAWN AND THE DRIVEWAY ACTUALLY ABUTS THE HOUSE SO IT COULDN'T
HAVE BEEN VERY FAR. IT'S DEFINITELY CLOSE ENOUGH WHERE IF SOMEBODY WITH A FIREARM INSIDE
THE HOUSE DECIDED TO SHOOT SOMEONE OUT THE WINDOW, THEY COULD HAVE REELTHED THE PERSON.
JUSTICE ALBIN: SO IT'S OUT THE WINDOW NOW? A SNIPER FROM LIKE A HUNDRED FEET
COULD SHOOT OUT THE WINDOW. IS THAT GOING TO BE A BASIS FOR USING PROTECTIVE SWEEP FORGETTING
INSIDE THE HOME WHEN THE PERSON IS ARRESTED OUTSIDE THE HOME 70. DEBORAH
BARTOLOMEY: NO. IT'S GOING TO BE WHETHER OR NOT THERE'S A REASONABLE SUSPICION THAT A
DANGEROUS PERSON HAS ACCESS TO FIREARMS OUTSIDE THE HOUSE AND PRESENTS A THREAT AT THE
ARREST SCENE. CHIEF JUSTICE RABNER: IS IS THERE ANY WHAT TO ESTIMATE HOW FAR
FROM THE DRIVEWAY POINT HE WAS IN THE FRONT. DEBORAH BARTOLOMEY: WELL, IN
THE CAR WAS PARKED IN THE FRONT OF THE DRIVEWAY, HE COULD HAVE BEEN A FOOT FROM THE HOME.
IF THE CAR WAS PARKED IN THE BACK OF THE DOOR -- JUSTICE ALBIN: HOW LONG WA
S THE DRIVEWAY. DEBORAH BARTOLOMEY: IT'S A VERY SHORT DRIVEWAY. I JUST KNOW
FROM LOOKING AT THE MAP. JUSTICE ALBIN: THE MAP IN THE RECORD?
DEBORAH BARTOLOMEY: NO, YOUR HONOR. JUSTICE ALBIN: WE CAN'T LOOK AT THAT.
YOU HAVE THE BURDEN OF PROOF IN A MOTION TO SUPPRESS OF THIS TYPE, CORRECT?
DEBORAH BARTOLOMEY: CORRECT, YOUR HONOR. BUT I WOULD SAY THAT GOOGLE MAPS, THE COURT
COULD TAKE JUDICIAL NOTICE OF THAT. AND THIS HOUSE IS ON STREET VIEW AND YOU CAN SEE
HOW VERY CONFINED AND SMALL THIS SPACE IS VERY CLEARLY FROM THE PICTURE. CHIEF
JUSTICE RABNER: DOES THE DRIVEWAY COME RIGHT UP TO THE FRONT OF THE HOME, IS THERE A GRASS
AREA? DEBORAH BARTOLOMEY: THE DRIVEWAY LOOKS TO BE ON THE LEFT SIDE OF THE
HOME. ABUTS THE HOME WHEN IT REACHES THAT. A VERY SMALL FRONT YARD AND THERE IS A GRASS
AREA BETWEEN -- WHEN YOU COME OUT OF THE FRONT PORCH TO THE CAR. CHIEF JUSTICE
RABNER: SO FROM THAT DESCRIPTION, IT DOESN'T SOUND LIKE THEY COULD HAVE BEEN ONE FOOT
AWAY. DEBORAH BARTOLOMEY: I MEANT, YOUR HONOR, IF THEY'RE PARKED UP IN THAT
PART OF THE DRIVEWAY, THEN THE CAR WOULD BE A FOOT -- THE DRIVEWAY LITERALLY ABUTS THE
HOUSE. A VOICE: DOES IT ABUT THE FRONT DOOR OF THE HOUSE? DEBORAH
BARTOLOMEY: NO, THE SIDE, YOUR HONOR. CHIEF JUSTICE RABNER: HOW FAR IS THE
FRONT DOOR FROM THE SIDE OF THE HOUSE? DEBORAH BARTOLOMEY: PROBABLY I WOULD
THINK TEN FEET. CHIEF JUSTICE RABNER: SO DOES THAT SUGGEST THAT THE DEFENDANT
WAS AT LEAST TEN FEET AWAY FROM THE FRONT OF THE HOUSE WHEN HE WAS ARRESTED?
DEBORAH BARTOLOMEY: I WOULD THINK HE MAY HAVE BEEN. I WOULD SAY TEN FEET AWAY. I DON'T
KNOW. IT'S NOT REALLY IN THE RECORD. I DON'T FEEL COMFORTABLE MAKING GUESSES.
JUSTICE ALBIN: IS IT YOUR POSITION THAT THE POLICE NEEDED REASONABLE AND ARTICULABLE
SUSPICION TO BELIEVE THERE WAS SOMEONE ELSE IN THE HOUSE WHO WAS POSING AN IMMEDIATE DANGER
TO THE POLICE OFFICERS OUTSIDE THE HOUSE? DEBORAH BARTOLOMEY: YES, YOUR HONOR.
JUSTICE ALBIN: SO THE APPELLATE DIVISION DOESN'T SEEM, AT LEAST FROM MY
READING OF THE OPINION, TO HAVE A BRIGHT LINE YOU CAN NEVER GO N THEY JUST SAY, THE MEMBERS
OF THAT PANEL, THAT THERE WASN'T REASONABLE AND ARTICULABLE SUSPICION AND THEY GO DOWN
EVERY REASON WHY THERE IS NOT. DEBORAH BARTOLOMEY: WELL, BEFORE THEY GET
THERE, YOUR HONOR, THEY DID SAY -- THEY TOOK THIS COURT'S OPINION IN DAVILA, WHICH IS ABOUT
A DIFFERENT ISSUE, A DIFFERENT APPLICATION OF BUIE IN DIFFERENT FACTS. SO THEY TOOK THE
COURT'S HOLDING, WHERE IN DAVILA THE COURT WAS SAYING THE LEGITIMACY THAT THE COURT IN
DAVILA WAS SAYING THAT THEY HAD TO BE INSIDE THE HOUSE DURING THE ARREST. AND I THINK
THAT LOOKS LIKE IT'S VERY CLEAR IN THE COURT'S OPINION. THEY DIDN'T COME RIGHT OUT AND
SAY THAT, BUT I WOULD HAVE TO SAY IF I COULD LOOK AT THE OPINION FOR A MINUTE.
JUSTICE LA VECCHIA: WELL, IN DAVILA THEY WERE DEALING WITH POLICE OFFICERS INSIDE. WE
HAVEN'T DEALT WITH POLICE OFFICERS CROSSING THE THRESHOLD UNDER THE ARGUMENT OF PROTECTIVE
SWEEP. DEBORAH BARTOLOMEY: THIS IS THE FIRST. PUBLISHED. JUSTICE LA
VECCHIA: I THINK I'M GOING TO ASK A FOLLOW-UP QUESTION TO JUSTICE ALBIN'S QUESTIONS TO
YOU ABOUT REASONABLE SUSPICION. WHAT LEVEL OF DETAIL MUST OFFICERS PROVIDE UNDER YOUR
STANDARD TO SHOW THAT THEY HAD REASONABLE, ARTICULABLE SUSPICION THAT SOMEBODY INSIDE
POSED A DANGER? IT CAN'T SIMPLY BE THAT SOMEONE ELSE -- THEY BELIEVED SOMEBODY ELSE TO BE
INSIDE AND SEPARATELY THEY BELIEVED THERE WERE GUNS IN THE HOUSE. WHAT IS THE CONNECTING
GLUE THAT YOU THINK SHOULD OR SHOULD NOT -- OR PERHAPS YOU DON'T THINK -- SHOULD BE THERE
IN ORDER TO MAKE THAT ARGUMENT FOR ARTICULABLE SUSPICION OF DANGER? DEBORAH
BARTOLOMEY: WELL, I THINK IF THE -- IF THE RECORD SHOWS THAT THERE'S A REASONABLE SUSPICION
THAT SOMEONE WOULD BE HIDE NOT GUILTY THE HOUSE OR INSIDE THE HOUSE AND, WHICH I THINK
THIS RECORD SHOWS, IT'S A POSSIBILITY. THAT'S ALL -- JUSTICE LA VECCHIA:
HOW DOES THAT SHOW DANGER? THAT'S WHAT I'M TRYING TO GET AT. THE OFFICERS ARE NOT
INSIDE. THEY HAVE THE ABILITY TO RE-TREAT. THAT WAS DIFFERENT IN DAVILA. THAT WAS DIFFERENT
IN BUIE. WHAT IS THE DANGER PIECE THAT YOU ARGUE WAS DEMONSTRATED ON THESE FACTS?
DEBORAH BARTOLOMEY: WELL, WHAT THE CASES SAY, IT'S THE IDEA THAT A BULLET CAN GO FROM
THE INSIDE OF A HOUSE TO THE OUTSIDE. SO ALL THE CASES SAY THAT THAT COULD BE OR IS AS
DANGEROUS AS BEING INSIDE THE HOUSE. IT'S DANGEROUS IN A DIFFERENT WAY. AND I WOULD
GRANT YOU IT WOULD HAVE TO BE A GUN AS OPPOSED TO SAY A KNIFE THAT YOU SUSPECT IF YOU'RE
GOING TO BE IN DANGER FROM SOMEONE INSIDE THE HOUSE. BUT IT'S STILL DANGEROUS.
PEOPLE ACTUALLY HAVE BEEN SHOT -- I MEAN, WE HAD A CASE IN -- JUSTICE LA VECCHIA:
WOULD YOU HAVE TO BELIEVE THAT PERSON IS A COULDN'T FEDERAL REVOCABLE TRUST? SUPPOSE
THE OTHER PERSON WAS A TEENAGE DAUGHTER IN THE HOUSE? WOULD YOU BE MAKING THE SAME
ARGUMENT? DEBORAH BARTOLOMEY: WELL, THE POLICE CAN'T REALLY GO INTO ALL THE
RELATIONSHIPS BETWEEN THE PEOPLE AND KNOW THAT MUCH ABOUT ANYBODY THAT'S INSIDE. BUT
UNDER THESE CIRCUMSTANCES HERE, YOU POINT TO A SPECIFIC FACT THE OFFICER DOES, AND IF
A REASONABLE INFERENCE FROM THAT FACT BEARS OUT, THAT'S WHERE IT ENDS. YOU CAN'T -- YOU
CAN'T EXPECT THE POLICE TO -- JUSTICE ALBIN: THE PROBLEM WITH YOUR CASE AND
THE CASES TO WHICH YOU'RE REFERRING IS THAT THE OTHER CASES HAVE SPECIFIC FACTS ABOUT
A DANGER WITHIN. AND THIS GOES TO JUSTICE LAVECCHIA's QUESTION. PEOPLE HAVE A RIGHT
TO LIVE INSIDE HOUSES. IT COULD BE THE SISTER, IT COULD BE THE MOTHER, IT COULD BE A
GIRLFRIEND. THAT STANDING ALONE CAN'T BE ENOUGH THAT THERE'S A REASONABLE AND ARTICULABLE
SUSPICION THAT POLICE OFFICERS OUTSIDE ARE IN DANGER THAT THEY'RE GOING TO BE SHOT BY
THE MOTHER OR THE FATHER OR ARE YOU SAYING OTHERWISE THAT AS LONG AS ANYONE IS IN THE
HOUSE THEY CAN JUST STORM INSIDE OF IT? DEBORAH BARTOLOMEY: IT HAS TO MEET
THE BUIE STANDARD. THERE HAS TO BE A REASONABLE SUSPICION OF DANGER TO PEOPLE ON THE
ARREST SCENE. SO YOU HAVE THESE OFFICERS GOING TO A HOUSE WHERE THEY KNOW THAT SOMEONE
WHO HAS USED A GUN UN-LAWFULLY IN THE PAST LIVES -- HAS REFUSED TO RESPOND TO AN ORDER
-- JUSTICE PATTERSON: HOW SIGNIFICANT IS THE FACT THAT THEY ARE RETRIEVING
-- THEY'RE THERE TO RETRIEVE A GHN AND THEY'RE GOING TO BE GELG HIM YOU ARE GIVING UP
YOUR WEAPONS TO US. DOES THAT ADD AN ELEMENT OF DANGER THAT PERHAPS WOULD NOT BE IF THEY WERE
THERE SIMPLY TO HAVE A CONVERSATION? DEBORAH BARTOLOMEY: IT CERTAINLY DOES,
YOUR HONOR. AND THE CASES WILL SAY THAT JUST THE FACT THAT THE POLICE ARE THREATENING
A PRISON TERM MAKES IT VERY DANGEROUS TO GO OUT TO SOMEONE'S HOUSE. BUT ON TOP OF THIS,
THIS IS A PERSON WHO ABSOLUTELY REFUSES TO SURRENDER HIS WEAPON AND HE KNOWS VERY WELL
THAT HE HAS NO RIGHT TO HAVE IT. JUSTICE ALBIN: HE'S OUT OF THE EQUATION
HERE. THE REASONABLE AND ARTICULABLE SUSPICION HAS TO BE SOMEONE OTHER THAN THE DEFENDANT
IN THIS CASE. DEBORAH BARTOLOMEY: ABSOLUTELY, YOUR HONOR. BUT WHEN WE'RE
TALKING ABOUT COHORTS AND THE POLICE JUST DO NOT KNOW WHAT'S GOING ON -- JUSTICE
ALBIN: TELL US WHAT YOU HAVE ABOUT COHORTS WHO ARE INVOLVED IN SOME CRIMINAL ACTIVITY
WITH THE DEFENDANT? IS THERE ANY? DEBORAH BARTOLOMEY: THERE'S THE PERSON
WHO GOES OUTSIDE IN THE BACKYARD WHO CAN'T BE IDENTIFIED AND THE POLICE HAVE THE RIGHT
TO GO IN AND DISPEL THIS SUSPICION OF DANGER. THAT IS A LEGITIMATE SUSPICION OF DANGER
ESPECIALLY WHEN IT'S PAIRED WITH AN EXTRA CAR IN THE DRIVEWAY. ALL YOU CASES YOU SEE
WHERE THERE'S AN EXTRA CAR, COURT'S ACCEPT THAT INDICATES THERE'S ANOTHER PERSON IN THE
HOUSE. PIER PIER ISN'T IT TRUE ONE OFFICER WAS WEARING THE SAME TYPE CLOTHES AS THE
DEFENDANT? DEBORAH BARTOLOMEY: WELL, YOUR HONOR, THEY WERE BOTH WEARING BLUE
JACKETS OR BLUE AT THE TOP, BUT THAT IS VERY COMMON. A BLUE WINTER JACKET IS NOTHING
THAT'S SPECIFICALLY IDENTIFYING. AND THE REASON HE WAS THE ONLY OFFICER THAT SAW IT IS
BECAUSE HE WAS THE ONLY OFFICER STANDING OUTSIDE. IT WAS A BITTERLY COLD JANUARY DAY
AND THE OFFICERS WERE WERE IN THEIR VEHICLES WITH THE HEAT ON I GUESS. THEY DIDN'T HEAR
OR SEE ANYTHING. BUT HE SAW IT. AND IT WAS JUST IN HIS PERIPHERAL VISION. SO HE COULDN'T
REALLY GET ANY KIND OF AN IDENTIFICATION ON THE PERSON. AND IN SYNC WITH THAT, AT AROUND
THE SAME TIME, THE OFFICER HEARS THIS LOUD METALLIC CLAT TERRESING NOISE. I THINK WHEN
YOU PUT THOSE THREE THINGS TOGETHER, IS IT PROBABLE CAUSE? ABSOLUTELY NOT. DOES IT
INDICATE SOMETHING SUSPICIOUS, POSSIBLY DANGER? BECAUSE THIS IS JUST ABOUT DISPELLING
THE FEAR OF DANGER. JUSTICE ALBIN: IT SEEMS TO ME THAT IT WAS MORE DANGEROUS
FOR THOSE OFFICERS TO GO BARGING IN THAT HOUSE THAN IT WOULD HAVE BEEN FOR THEM TO EXECUTE
THE ARREST OUTSIDE, PUT THEM IN THE PATROL CAR AND MOVE ON THEIR WAY. AND THEN GET A
SEARCH WARRANT FOR THE HOUSE IF THEY HAD PROBABLE CAUSE. DEBORAH BARTOLOMEY:
THEY DID GET A SEARCH WARRANT. THEY PLANNED ON GETTING A SEARCH WARRANT. BUT THEY CAN'T
GET A SEARCH WARRANT, YOUR HONOR, AND JUST LEAVE THE HOUSE UN-GUARDED. THEY HAVE TO SECURE
THE SCENE. THAT MEANS PATROL OFFICERS WILL BE FORCED TO STAND THERE THE ENTIRE TIME --
JUSTICE ALBIN: ARE YOU TELLING ME THAT'S NOT A COMMON PRACTICE.
DEBORAH BARTOLOMEY: YES. JUSTICE ALBIN: WE HAVE OFFICERS GOING INSIDE A
HOUSE. DEVELOPS THIS REASONABLE SUSPICION OR PROBABLE CAUSE, THEY GUARD THE HOUSE AND
THEY GET A SEARCH WARRANT. THAT'S DONE ALL THE TIME. DEBORAH BARTOLOMEY:
BUT THAT THE CASES DO SAY IF THE BUIE STANDARD IS MET, THEY ARE ENTITLED TO PROTECT THOSE
OFFICERS WHO HAVE TO STAND OUTSIDE FOR ALL OF THAT TIME FROM SOMEONE WHO MAY BE HIDING
IN THE HOUSE, MAY DECIDE LATER IF HE WANTS TO LEAVE. THERE ARE GUNS AVAILABLE. AND
THERE'S A LOT GOING ON. THIS IS -- IF YOU LOOK AT THE ENTIRE CONTEXT OF IT AND GIVING
THE POLICE OFFICERS THE RIGHT TO DRAW THE CONCLUSIONS AS POLICE OFFICERS IN -- YOU
KNOW, WITHIN THEIR TRAINING, THIS IS A VERY SUSPICIOUS AND DANGEROUS UNDERTAKING. YOU
KNOW THAT BECAUSE THEY GO THERE -- LIKE YOUR HONOR WAS MENTIONING, THERE WERE SEVERAL
DIFFERENT OFFICERS THAT WENT THERE. I THINK SIX OR EIGHT. BUT -- AND THEY HAD A TACTICAL
MEETING. THEY WERE AFRAID. AND RIGHTFULLY SO. CHIEF JUSTICE RABNER: MS.
BARTOLOMEY, YOU'RE HERE AS AMICUS AS WELL FOR SOME OF THE BROADER ARGUMENTS THAT HAVE BEEN
MADE. WOULD YOU CARE TO ADDRESS THE ARGUMENT THAT A BRIGHT LINE OR ARRESTS OUTSIDE OF THE
HOME. DEBORAH BARTOLOMEY: I THINK NOT ONLY IS THAT DISFAVORED IN GENERAL IN
SEARCH AND SEIZURE LAW, BUT PARTICULARLY WHEN YOU HAVE A RULE THAT WOULD IMPACT POLICE
SAFETY TO THE DEGREE OF THIS, I THINK IT SHOULD BE LEFT TO POLICE OFFICERS AT THE SCENE
TO MAKE THESE DECISIONS. BECAUSE WHAT HAPPENS IS THAT A COURT WILL TEND TO INFLATE ONE
FACTOR, THE HOME ENTRY. AND GRANTED IT IS AN IMPORTANT AND SERIOUS FACTOR, THE ENTRY
OF A HOME. BUT POLICE OFFICERS WILL -- YOU KNOW, THESE AREN'T POLICE OFFICERS THAT ARE
JUST WALKING DOWN THE STREET, SEE SOMEBODY AND END UP GOING IN HIS HOME AND SWEEPING IT.
THEY'RE THERE FOR A REASON AND THEY HAVE JUDICIAL AUTHORITY. SO AGAIN I LOOK AT, THIS IS
NOT THE DANGER THAT THE WARRANT REQUIREMENT DREZ. THIS IS NOT A POLICE OFFICER WHO JUST
DECIDED CAVALIERLY TO GO INSIDE SOMEBODY's HOME. THEY'VE BEEN TRYING TO ENFORCE THIS
ORDER FOR MONTHS. I GUESS AFTER AWHILE THEY START TO WONDER WHAT IS GOING ON. THEN WHEN
WE GET THERE, THERE'S NO, YOU KNOW, THERE'S NO RE-ASSURANCE OF ANYTHING BUT. THINGS ABOUT
THE SCENE MAKE THEM EVEN MORE UN-EASY. SO ALL OF THESE FACTS, IF YOU HAVE A
PER SE RULE THAT THIS IS NEVER ALLOWED, THEY CAN'T BE ADDRESSED. SO IT'S VERY DANGEROUS
FOR POLICE OFFICERS. THIS IS POLICE PROTECTION. IT'S A VERY IMPORTANT -- AS IMPORTANT
AS THE FOURTH AMENDMENT PROTECTION OF THE HOME IS, POLICE OFFICERS LIVES AND OTHERS AT
THE SCENE, THAT ALSO IS A VERY IMPORTANT VALUE AND THIS COURT HAS SAID THAT MANY TIMES.
JUSTICE ALBIN: BUTTING ASIDE THE BRIGHT LINE RULE, PERHAPS YOU CAN IN-FORM
US OTHERWISE, BUT IN THE FEDERAL CASES THAT I'VE LOOKED AT, THERE WAS MORE EVIDENCE TO
SUGGEST A DANGER WITHIN THE HOME. THIS LAWLOR CASE FROM THE FIRST CIRCUIT WHICH COLLECTS
OTHER CASES, THEY WILL INTELLIGENCE THAT THE HOUSE HAD ILLICIT DRUG RE-LATED ACTIVITIES
GOING ON. THERE WERE PEOPLE GOING IN AND OUT. AND THE OTHER CASES SEEM TO INDICATE THAT
-- OTHER TYPES OF FACTS LIKE THAT. AND AREN'T THOSE FACTS DIFFERENT FROM THIS, WHERE
THERE SEEMS TO BE A LOT OF GUESSING ABOUT WHAT'S GOING ON IN THE HOUSE WITH ANOTHER
INDIVIDUAL? DEBORAH BARTOLOMEY: WELL, IN THIS CASE YOU HAVE DIFFERENT FACTS.
YOU ALWAYS HAVE DIFFERENT FACTS, BUT YOU DO -- IT DOES RISE TO THE LEVEL OF A REASONABLE
SUSPICION THAT THERE COULD BE A DANGEROUS PERSON INSIDE. BECAUSE THAT STRANGE INCIDENT
IN THE BACKYARD AND YOU ALSO HAVE THE EXTRA CAR IN THE DRIVEWAY. AND PUT THAT IN CONTEXT
WITH THE MISSION THE POLICE ARE THERE FOR IN THE FIRST PLACE, AND BEYOND THAT SOMEONE
WHO ABSOLUTELY REFUSES TO GIVE UP HIS WEAPON. SO I THINK THIS SEEMS TO ME
VERY DANGEROUS. AND, YOU KNOW -- THERE WAS, AS YOUR HONOR SAID, WE DIDN'T HAVE ANY PRE-
INFORMATION THAT SOMEONE WAS IN THERE SUBMITTING OTHER CRIMES LIKE DRUG DEALING BUT IN
THIS SITUATION YOU DO KNOW THAT YOU HAVE SOMEBODY WHO HAS TO SURRENDER A WEAPON AND JUST
DOES NOT WANT TO. JUSTICE LA VECCHIA: BUT YOU RECOGNIZE BY THE WAY YOU JUST
ANSWERED THAT LAST QUESTION, MS. BARTOLOMEY, I THINK THAT THE STANDARD YOU'RE SUGGESTING
REDUCES THE NORMAL PROBABLE CAUSE STANDARD FOR ENTRY INTO THE HOME NOW DOWN TO REASONABLE
SUSPICION OF DANGER AS PERCEIVED BY AN OFFICER WHO HAS ALREADY EXECUTED AND ARREST OUTSIDE
OF THE HOME. THAT'S WHAT THE STATE'S ASKING US TO HOLD, IS IT NOT? DEBORAH
BARTOLOMEY: YES. JUST LIKE EVERY FEDERAL CIRCUIT HAS HELD AND ALL THE STATES ADDRESS
THAT. AND THE REASON YOU DON'T HOLD THE OFFICERS TO A PROBABLE CAUSE STANDARD OF DANGER
WHILE THEY'RE GOING IN THE HOUSE IS THE SAME REASON THERE'S NO PROBABLY CAUSE STANDARD?
TERRY AND ANY OTHER -- JUSTICE LA VECCHIA: WELL, IN TERRY THEY'RE GOING ACTION
IN THE CONTEXT OF WHERE THEY FIND HIM OR HER. YOU'RE THROWING A MUCH LARGER SPHERE AROUND
THE INDIVIDUAL, INCLUDING GOING FROM OUTSIDE, THROUGH WALLS, INTO INTERIOR SECTIONS FROM
THE HOUSE. AND I SGARJ FROM THE WAY YOU'RE ARGUING THIS THAT THERE'S NO LIMIT TO THE
EXTENT TO WHICH THE HOUSE CAN BE SEARCHED. DEBORAH BARTOLOMEY: THERE'S ABSOLUTELY
LIMITS. JUSTICE LA VECCHIA: THEY CAN GO TO THE ATTIC, THEY CAN GO TO THE
BASEMENT, ANY ROOM AS I UNDERSTAND YOUR -- DEBORAH BARTOLOMEY: ANY ROOM WHERE
A PERSON MIGHT BE HIDING. IT HAS TO BE A PERSON. THEY CAN'T GO IN DRAWERS.
JUSTICE LA VECCHIA: THEY CAN'T GO INTO SMALL CONTAINERS BUT THEY CAN EXAMINE THE ENTIRE
INTERIOR OF THE HOUSE SUBJECT TO THOSE LIMITATIONS OF NOT OPENING DRAWERS AND
LOOKING IN SPACES THAT ARE TOO SMALL. DEBORAH BARTOLOMEY: AT THE RISK OF SOUND
ING LIKE MAKING A QUIBBLE, IT'S A CURSORY SWEEP. ALL THEY'RE DOING IS MAKING SURE NOBODY'S
LIKE HIDE NOT GUILTY A CLOSET, HIDING -- JUSTICE ALBIN: THEY THOUGHT AT FIRST
THEY WERE GOING TO THE PARENTS' HOUSE. SAME ARGUMENT BY YOU, THEY GO GO IN AND BREAK
THROUGH THE DOOR OF THE PARENTS' HOME AND SEARCH EVERY ROOM. DEBORAH BARTOLOMEY:
JUST AS AN ASIDE, THE DOOR WAS OPEN HERE. JUSTICE FERNANDEZ-VINA: DID THEY
BREAK A DOOR HERE AT ANY TIME. DEBORAH BARTOLOMEY: ABSOLUTELY. JUSTICE
FERNANDEZ-VINA: DID THEY STORM IN AT ANY TIME. DEBORAH BARTOLOMEY: NO, NO,
THE DOOR WAS LEFT OPEN BY THE DEFENDANT. JUSTICE ALBIN: LET'S SAY IT WAS
THE PARENTS' HOUSE. COULD THEY HAVE DONE THE SAME THING? BECAUSE THEY THOUGHT THEY WERE
GOING TO THE PARENTS' HOUSE FIRST. ASSUME HE'S ARRESTED OUTSIDE, WOULD THEY BE PERMITTED
TO GO INSIDE AND CONDUCT A PROTECTIVE SWEEP IN THE PARENTS' HOME AS THE PARENTS ARE PRESENT?
DEBORAH BARTOLOMEY: WELL, THERE'D BE AN ENTIRELY DIFFERENT CONSTELLATION OF
FACTS GOING ON THERE. KNOWING THAT SOMEONE'S INSIDE -- JUSTICE ALBIN: PARENTS
IN THE HOUSE. DEBORAH BARTOLOMEY: BUT NO SUSPICION OF ANY OTHER PERSON?
JUSTICE ALBIN: THE PARENTS. JUSTICE PIERRE-LOUIS: PEOPLE IN THERE.
DEBORAH BARTOLOMEY: IF THE PARENTS ARE BEING COOPERATIVE AND THEY HAVE THE
KIND OF RELATIONSHIP -- JUSTICE PIERRE-LOUIS: WELL, THE OFFICER STATED THE
MOTHER WASN'T BEING COOPERATIVE. DEBORAH BARTOLOMEY: I BELIEVE HE DID SAY
THE MOTHER WAS EVASIVE AND I GUESS THAT WAS IN THE CONTEXT OF SHE DIDN'T REALLY WANT TO
TURN HER SON IN, BUT I WOULDN'T SAY SHE SEEMED PARTICULARLY UN-CO-OPERATIVE. I THINK
THEY WERE RATHER CO-OPERATIVE BECAUSE THEY SPOKE TO THE OFFICERS AFTER THE ARREST. I
CAN'T -- THIS IS VERY LIMITED. YOUR HONOR, I'M NOT SAYING THAT IN EVERY CASE WHERE THEY'RE
OUTSIDE ON THE LAWN AND THERE ARE PEOPLE INSIDE AND THERE'S GUNS IN THE HOUSE YOU
AUTOMATICALLY GET TO GO IN THE HOUSE. THAT'S NOT WHAT I'M SAYING. YOU HAVE TO BE ABLE
TO PROVE THE PREMISE OF BUIE, WHICH IS THAT THERE'S A DANGEROUS PERSON, DANGEROUS TO
THOSE ON THE ARREST SCENE. AND THAT COULD MEAN THAT YOU'RE OUTSIDE OR YOU'RE INSIDE THE
HOUSE. YOU COULD STILL BE ENDANGERED BY PEOPLE INSIDE THE HOUSE. JUSTICE
PATTERSON: THEY HAD A HISTORY OR AT LEAST SOME OFFICERS HAD A HISTORY WITH THE DEFENDANT
IN TERMS OF HIS INVOLVEMENT AS AN INFORMANT. DEBORAH BARTOLOMEY: YES.
JUSTICE PATTERSON: WHAT DOES THE RECORD TELL US IF ANYTHING ABOUT WHAT THEY LEARNED, OTHER
THAN THE FACT THAT IN ADDITION TO THE SMITH AND WESSON INVOLVED IN THAT CAR INCIDENT THERE
WERE OTHER WEAPONS? WAS THERE ANYTHING ELSE THEY LEARNED. DEBORAH BARTOLOMEY:
THEY KNEW ABOUT THE BERETTA. AND THEY -- I GUESS THAT AFTER HIS PLEA TO THE, YOU KNOW,
THE PREDICATE OFFENSE, THAT HIS LAWYER HAD, I GUESS, GIVEN THE PROSECUTOR'S OFFICE THE
INFORMATION ABOUT THIS BERETTA. OR ELSE I THINK IT'S A LEGAL GUN. MAYBE HE HAD A --
THAT ISN'T BROUGHT IN REAL DETAIL. JUSTICE PATTERSON: THERE'S NOT MUCH.
BASICALLY IT'S THE FACT THAT IN ADDITION TO THE 357-CALIBER SMITH AND WESSON, THERE WERE
OTHER WEAPONS IN THE HOUSE. DEBORAH BARTOLOMEY: I THINK RELATIONSHIP TO
THERE IS AN IN-FORMER, YOUR HONOR, YES, THEY PROBABLY THOUGHT THEY WOULD GET MORE CO-OP
OPERATION ABOUT THESE GUNS. THAT'S WHY IT'S SUCH A LONG TIME AFTER THE ORIGINAL OFFENSE.
HE WAS WORKING FOR THEM SO THEY POSTPONED THE SENTENCE AFTER THE PLEA. BUT IT'S TIME
FOR HIM TO SURRENDER THE GUN AND HE WOULDN'T DO IT. SO THAT I GUESS IN BROAD TERMS IS
THE BACKGROUND. JUSTICE PATTERSON: DO YOU TIE THAT IN WITH A REASONABLE
SUSPICION THAT EVEN THOUGH HE'S ARRESTED THERE MIGHT BE SOMEBODY THERE WHO HAS AN INTEREST
IN THESE GUNS OR FOR WHATEVER REASON IS WILLING TO DEFEND AGAINST THE POLICE CONFISCATION
OF THESE GUNS? DEBORAH BARTOLOMEY: RIGHT. HE HASN'T BEEN TAKEN BY SURPRISE.
HE KNOWS THE POLICE ARE GOING TO COME AND GET THIS GUN. I MEAN, IF YOU LOOK AT IT, THE
FACT IS, IT WASN'T TRUE. HE WAS THE ONLY ONE IN THERE. THEY WEREN'T REALLY UNDER DANGER.
BUT THE THING IS, WHEN THE POLICE ARE ACTING, THAT'S BEFORE THE DANGER ARISES. IT'S ONLY
A POSSIBLE DANGER. TO HOLD THAT TO EVEN PROBABLE CAUSE ISN'T EVEN MORE LIKELY THAN NOT,
I DON'T BELIEVE. SO I THINK THAT THE APPELLATE DIVISION HELD THE OFFICERS TO
SUCH A HIGH STANDARD WHEN YOU'RE TALKING ABOUT THE POSSIBILITY OF BEING, YOU KNOW, SHOT
AT, WHEN ALL YOU'RE DOING IS PROTECTING A YARD SO THAT THE OFFICERS CAN GO AND GET A SEARCH
WARRANT. CHIEF JUSTICE RABNER: WE KNOW THAT THE APPELLATE DIVISION IN THE
RADEL CASE REMANDED TO SEE IF THERE WAS ENOUGH LEFT IN THE WARRANT THAT IT COULD SURVIVE
ON ITS OWN. AND THE WARRANT INCLUDES A STATEMENT FROM THE FATHER THAT DEFENDANT KEPT
GUNS IN A GREEN GUN SAFE IN THE HOUSE. A STATEMENT THAT HE MADE AFTER THE PROTECTIVE
SWEEP. CAN YOU ADDRESS WHETHER THERE IS A PROBLEM WITH RESPECT TO THE TIMING, WHETHER
THAT STATEMENT IS SOMEHOW FRUITS OF AN UN-JUSTIFIED PROTECTIVE SWEEP? I'M NOT
ASKING YOU TO CONCEDE THE ISSUE. BUT IS THERE A TAINT ISSUE IF YOU DON'T PREVAIL?
DEBORAH BARTOLOMEY: YOUR HONOR, THIS IS BASED BY NOTHING BUT AN ASSERTION. HERE WE ARE
IN THE SUPREME COURT. NOT EVEN A CROSS-PETITION. AND HE'S ATTACKING THE -- THE APPELLATE
DIVISION DIDN'T SEE THIS. THEY NEVER BROUGHT THE FATHER IN TO TESTIFY. SO, YOU KNOW,
I'M SURE THAT THE FACT -- THE SUBJECT OF GUNS, WHICH HAS COME UP WITH THE PARENTS BEFORE,
THEY WENT OVER THERE TO TALK TO THE PARENTS ABOUT THE FACT THAT, YES, WE JUST ARRESTED
YOUR SON. THEY WERE TALKING ABOUT THE FATHER's GUN. THE FACT THAT THIS -- YOU KNOW,
THEY HAD ABUNDANT PROBABLE CAUSE WITHOUT ANY INFORMATION ABOUT THE GUN SAFE EVEN IF THEY
HADN'T DONE THE SWEEP, HADN'T GOTTEN THAT INFORMATION. I MEAN, THEY HAVE THE PROBABLE
CAUSE OF THE GUN TO THE FACT -- THEY HAVE THE SERIAL NUMBER. CHIEF JUSTICE
RABNER: I'M ASKING A SLIGHTLY DIFFERENT QUESTION. CAN THE FATHER's STATEMENT BE CONSIDERED?
IS THERE A TAINT ISSUE? DEBORAH BARTOLOMEY: BECAUSE OF -- NO. BECAUSE --
CHIEF JUSTICE RABNER: I WANTED TO ASK YOU TO ADDRESS THE ARGUMENT AND TELL
US WHY YOU THINK THERE'S NOT A CONCERN ON THAT. DEBORAH BARTOLOMEY: NO. THERE'S
NO PROOF THAT ANY OF THAT EVEN HAPPENED. AND NOW IN THE SUPREME COURT WITHOUT THE CROSS
PETITION, I DON'T THINK THAT THAT ISSUE IS PROPERLY BEFORE THE COURT. CHIEF
JUSTICE RABNER: EXPLAIN WHAT YOU JUST MEANT, THERE'S NO PROOF THAT THAT NEVER HAPPENED.
DEBORAH BARTOLOMEY: THERE'S NO FATHER THAT WAS BROUGHT INTO THE SUPPRESS MOTION
SAYING, OH, YEAH, AND THE POLICE ASKED ME ABOUT THIS GUN SAFE. THAT NEVER HAPPENED.
THEY KNOW THE FATHER SAID MY SON KEEPS GUNS IN HIS SAFE. NOW, THE POLICE WERE DOUBTLESS
ASKING THE PARENTS ABOUT HIS GUNS WHEN THEY GO TO ARREST HIM FOR THE GUN. IT SAYS RIGHT IN
THE ORDER THERE'S A SUSPICION OF OTHER GUNS. CHIEF JUSTICE RABNER: ARE YOU
TELLING US WE DON'T KNOW FROM THE RECORD WHEN THE FARNG MADE THE STATEMENT, WHETHER IT WAS
BEFORE OR AFTER THE SWEEP. DEBORAH BARTOLOMEY: I BELIEVE IT WAS AFTER THE
ARREST. PROBABLY AFTER AT LEAST SOME OFFICERS SWEPT THE HOUSE. BUT WHAT ISN'T IN THE
RECORD IS THAT IT WAS THE POLICE THAT BROUGHT UP THE GUN SAFE. THAT IS NOWHERE IN THE
RECORD. AND -- JUSTICE PATTERSON: IN OTHER WORDS, BASED ON THE RECORD, DO YOU
VIEW THE GUN SAFE TO HAVE BEEN SPONTANEOUSLY BROUGHT UP BY THE FATHER IN THE CONVERSATIONS
BEFORE THE ARREST OR AFTER OR DO WE KNOW? DEBORAH BARTOLOMEY: WELL, I CAN'T
KNOW EXACTLY, BUT IT DOES LOOK LIKE IT WAS PROBABLY AFTER THE ARREST. BUT THERE IS NO
INDICATION THAT THAT WASN'T SPONTANEOUS. NOWHERE IN THE RECORD DOES ANY POLICE OFFICER
SAY, SO I ASKED HIM ABOUT THE GUN SAFE. THEY DIDN'T EVEN KNOW IT WAS -- CHIEF
JUSTICE RABNER: THERE'S JUST NOT ENOUGH TO BE ABLE TO RESPOND ON THE MERITS.
DEBORAH BARTOLOMEY: YES, YOUR HONOR. NO FACTS. AND WITHOUT FACTS IT'S VERY DIFFICULT
TO DO A SEARCH AND SEIZURE ANALYSIS. JUSTICE SOLOMON: JUST TO CLARIFY IN
MY OWN HEAD. YOU TALKED ABOUT THE DRIVEWAY WHERE HE WAS TAKEN DOWN ABUTTING THIS HOUSE,
COMING RIGHT UP AGAINST THE HOUSE. IS THERE ANYTHING IN THE RECORD DESCRIBING THAT HOUSE,
THE LAYOUT OF THAT HOUSE? FOR EXAMPLE, IS THERE A DOORWAY THAT WALKS OUT ONTO THE DRIVEWAY?
IS THERE ANY OF THAT IN THE RECORD? DEBORAH BARTOLOMEY: I THINK THERE IS
SOME MENTION OF WINDOWS IN THE RECORD -- IN THE JUDGE'S -- JUSTICE SOLOMON:
ON THE SIDE OF THE HOUSE. DEBORAH BARTOLOMEY: YES, WHICH IS WHERE THE DRIVEWAY
-- JUSTICE SOLOMON: ANY INQUIRY OR MENTION ABOUT WHETHER THERE'S ANY MEANS
OF INGRESS OR EGRESS ON THE SIDE OF THE HOUSE? DEBORAH BARTOLOMEY: NO. THERE
MIGHT BE ONE ON THE SIDE OF THE HOUSE. THERE MIGHT BE IN THE BACK OF THE HOUSE. SOMEBODY
DID LEAVE THE HOUSE FROM THE FRONT DOOR, SO THERE IS ANOTHER ENTRANCE OR EXIT.
JUSTICE SOLOMON: IN HE HAD BEEN ARRESTED, PLED TO A GUN CHARGE, GOT A VERY LIMITED AMOUNT
OF TIME BECAUSE HE HAD COOPERATED OVER A PERIOD OF TIME WITH POLICE. IS THAT RIGHT?
DEBORAH BARTOLOMEY: HE WAS AN INFORMANT. I THINK THAT'S ON THE RECORD.
JUSTICE SOLOMON: AN INFORMANT. DO WE KNOW FROM THE RECORD WHETHER HE WAS --
HIS INVOLVEMENT WITH OR PARTICIPATION IN OR HOW HE ACQUIRED HIS KNOWLEDGE OF THIS OTHER
CRIMINAL ACTIVITY? THAT HE WAS INFORMING ON. IN OTHER WORDS, WAS HE A PARTICIPANT?
DEBORAH BARTOLOMEY: I JUST DON'T KNOW, YOUR HONOR. IT'S NOT REALLY IN THE
RECORD. JUSTICE SOLOMON: IF HE HAD A HISTORY OF ENGAGING OR INTERACTING WITH
OTHER INDIVIDUALS INVOLVED IN CRIMINAL ACTIVITY, WOULD THAT BE SOMETHING THAT THE POLICE
RE-LIED ON? DEBORAH BARTOLOMEY: I SEE -- YES. IT WAS DRUG CRIMES I BELIEVE
AND THAT I THINK IS KNOWN FOR BEING A PARTICIPATORY CRIME. JUSTICE
SOLOMON: AND THE POLICE, IF THEY CONSIDERED THIS INDIVIDUAL IN HIS TOTALITY WOULD HAVE
AT LEAST TAKEN THAT INTO CONSIDERATION, CORRECT? DEBORAH BARTOLOMEY: I BELIEVE
SO, YOUR HONOR, YES. JUSTICE SOLOMON: NOW, ALSO, HE'S ONE PERSON IN THE HOUSE
AND THERE'S BEEN A LOT OF QUESTIONING ABOUT THEY ONLY THING THERE'S ONE PERSON -- THEY
DON'T HAVE ANY REASON TO BELIEVE THERE'S NOT MORE THAN ONE PERSON IN THE HOUSE. WHAT
THEY'RE RELYING ON IS VERY SUSPECT. A PERSON GOING IN FROM ANOTHER DOOR WITH A BLUE COAT.
THE LOUD BANG FROM THE BACK OF THE HOUSE, METALLIC BANKING. THEN HE COMES OUT THE
FRONT DOOR IN A BLUE COAT OF SOME KIND. DO WE HAVE ANY KNOWLEDGE ABOUT THIS SECOND --
THERE ARE TWO CARS IN THE DRIVEWAY, RIGHT? HE'S ONE PERSON. DEBORAH BARTOLOMEY:
YES. JUSTICE SOLOMON: I MEAN, I'VE NEVER TRIED TO DRIVE TWO CARS AT ONE,
BUT HE'S ONE PERSON. THERE'S TWO CARS IN THE DRIVEWAY. DO WE KNOW ANYTHING ABOUT THOSE
CARS OR DID THEY KNOW ANYTHING ABOUT THOSE CARS WHEN THEY WENT IN? DEBORAH
BARTOLOMEY: THE OFFICERS KNEW THAT ONE CAR BELONGED TO DEFENDANT AND ONE CAR DID NOT.
THAT'S WHAT THEY KNEW. JUSTICE SOLOMON: THEY DID KNOW THAT?
DEBORAH BARTOLOMEY: YES, YOUR HONOR. JUSTICE SOLOMON: HOW DID THEY KNOW THAT?
DEBORAH BARTOLOMEY: THAT WASN'T EXPLAINED. JUSTICE SOLOMON: SO
IF THE OTHER CAR WAS OWNED BY SOMEBODY CLEARLY OTHER THAN THE DEFENDANT, DID THAT PLAY
ANY PART IN REASONING THAT MAYBE SOMEBODY ELSE IS IN THE HOUSE? DEBORAH BARTOLOMEY:
I THINK THAT THE TRIAL JUDGE FOUND THAT SIGNIFICANT. AND I THINK THAT ALL THE CASES
THAT I'VE SEEN WITH AN ADDITIONAL CAR, OTHER COURTS SAY, YES, THAT INDICATES ANOTHER
PERSON IN THE HOUSE. THAT'S OUR COMMON EXPERIENCE IF WE SEE AN UN-KNOWN CAR IN THE DRIVEWAY.
IT'S NOT ALWAYS TRUE BUT -- JUSTICE SOLOMON: YOU'RE ASKING US TO CONSIDER
ALL OF THESE FACTS KNOWN TO THEM WHEN THEY GOT THERE AND DETERMINE WHETHER IT'S REASONABLE
TO BELIEVE THAT SOMEBODY ELSE MAY BE IN THE HOUSE WHO REPRESENTS A THREAT. BECAUSE OF THE
GUNS, THE TWO VEHICLES. SEEING SOMEBODY ENTER FROM ANOTHER MEANS OF INGRESS AND EGRESS
'0 THE HOUSE AND HIS HISTORY. DEBORAH BARTOLOMEY: YES, YOUR HONOR.
JUSTICE SOLOMON: YOU SAY CONSIDER ALL THAT. DON'T CREATE A BRIGHT LINE RULE BECAUSE ALL
THAT PLAYS INTO ANY CASE THAT COMES BEFORE THIS COURT. DEBORAH BARTOLOMEY:
RIGHT. FROM THE POINT OF VIEW OF OFFICERS AT THE SCENE WHO EXPERIENCE DANGER IN THEIR
JOB REGULARLY. JUSTICE SOLOMON: FOR EXAMPLE, A BRIGHT LINE RULE WOULD MEAN
THAT EVEN IF THEY SAW SOMEBODY IN THE HOUSE KNOWING ALL THIS OTHER STUFF, THEY COULDN'T
DO A PROTECTIVE SWEEP, NOTWITHSTANDING THE KNOWLEDGE THAT THERE ARE OTHER GUNS, THERE'S
LOUD NOISE. THE HISTORY OF THIS INDIVIDUAL. THEY -- IF THERE WAS A BRIGHT LINE, IT
WOULDN'T MATTER. THEY'D HAVE TO WAIT UNTIL SOMEBODY GETS SHOT OR UNTIL THEY GET A SEARCH
WARRANT. DEBORAH BARTOLOMEY: EXACTLY, YOU YOUR HONOR. CHIEF JUSTICE
RABNER: WITH A BRIGHT LINE RULE IN PLACE, THE POLICE WOULD HAVE TO HAVE TO GET IN, RIGHT?
DEBORAH BARTOLOMEY: I BELIEVE SO, YOUR HONOR. JUSTICE ALBIN: IN
THIS CASE, WOULD IT HAVE MADE A DIFFERENCE IF THE DOOR WAS CLOSED? DEBORAH
BARTOLOMEY: I DON'T THINK IT WOULD HAVE MADE A DIFFERENCE TO THE DANGER OF THE OFFICER'S
EXPERIENCE BECAUSE -- JUSTICE ALBIN: BUT YOUR ARGUMENT WOULD BE THE SAME IF
IT WAS CLOSED OR EVEN LOCKED? THAT'S MY QUESTION. DEBORAH BARTOLOMEY: IF
THEY HAVE A REASONABLE BELIEF THAT SOMEBODY DANGEROUS TO THEM OR TO OTHER PEOPLE ON THE
ARREST SCENE IS INSIDE THE HOUSE, I DON'T THINK THAT YOU CAN MAKE THAT INTO A BRIGHT LINE
RULE EITHER. WHETHER OR NOT THE DOOR IS LOCKED OR OPEN. AND IT WAS OPEN IN THIS CASE.
ALSO THE WINDOWS WERE COVERED WITH SOMETHING. JUSTICE ALBIN: I'M ASKING YOUR
POSITION AS A REPRESENTATIVE OF THE STATE. IF THE DOOR WAS LOCKED, WOULD THEY HAVE HAD
REASON TO LITERALLY BREAK OPEN THE DOOR? IN THIS CASE. DEBORAH BARTOLOMEY:
WELL, I THINK BECAUSE THEY'RE WORRIED ABOUT SOMEONE INSIDE THE HOUSE SHOOTING AND YOU CAN
SHOOT THROUGH A WINDOW, I THINK THEY WOULD HAVE. JUSTICE PATTERSON: BUT THAT'S
NOT THIS CASE. WE HAVE AN OPEN DOOR IN THIS CASE. DEBORAH BARTOLOMEY: NO.
THEY WALKED THROUGH THE DOOR THE DEFENDANT LEFT OPEN. JUSTICE PATTERSON:
HE WALKS OUT. HE'S ARRESTED. HE DOESN'T SHUT THE DOOR BEHIND HIM. DEBORAH
BARTOLOMEY: EXACTLY. QUICK SWEEP THROUGH THE HOUSE. JUSTICE PATTERSON: TO
BARGING IN, BREAKING DOWN DOORS, THAT'S NOT THE CASE. JUSTICE LA VECCHIA:
BUT HOW WOULD YOU DISTINGUISH THAT IN YOUR POSITION? YOU'RE SAYING THEY HAVE THE RIGHT
TO ENTER TO SECURE THEIR SAFETY. I'M HARD PRESSED TO UNDERSTAND HOW YOU WOULD FIND THAT
TO BE ANY DIFFERENT. DEBORAH BARTOLOMEY: WELL, IT SEEMS TO ME YOU ALWAYS
GO BACK TO REASONABLENESS. SO, YOU KNOW -- JUSTICE LA VECCHIA: BUT YOUR
REASONABLENESS ANALYSIS GOES TO THE ASSESSMENT OF DANGER, NOT TO THE POLICE REACTION.
AM I CORRECT? DEBORAH BARTOLOMEY: AND ALSO TO THE DANGER AND, YOU KNOW, WHERE
THEY ARE IN RELATION TO PARTS OF THE HOUSE. I DON'T THINK IT WOULD ULTIMATELY MAKE A
DIFFERENCE. I THINK WHENEVER YOU'RE LOOKING AT SEARCH AND SEIZURE CASES, ESPECIALLY THESE
THINGS WHICH INVOLVE VERY QUICK POLICE ACTION TO AVOID DANGER, IT IS SO FACT SPECIFIC
THAT IT'S VERY DIFFICULT FOR ME TO JUST COME OUT AND SAY, YOU KNOW, WELL THAT DOESN'T
MATTER. I MEAN, TO ME EVERYTHING MATTERS, BUT THE STANDARD FOR SUSPICION IS JUST THAT;
SUSPICION. JUST SO THAT YOU CAN DISPEL A DANGER THAT YOU SUSPECT. IN OTHER WORDS, NEVER
JUST TO MAKE SURE, LET'S BE ON THE SAFE SIDE. THAT'S NOT ENOUGH. OR JUST I HAD A FEELING
THIS WAS GOING TO BE A BAD -- YOU KNOW, IT CAN'T BE A HUNCH AND IT CAN'T BE JUST DONE
FOR NO REASON. THERE HAS TO BE REASON, BUT IT'S NOT A HIGH STANDARD. IT'S NOT A LOT
OF REASONS. IT'S NOT A HEAVY BURDEN. JUSTICE LA VECCHIA: I HAVE ONE LAST
QUESTION. IF THIS INDIVIDUAL HAD NOT JUST COME OUT OF THE HOUSE BUT WAS -- MET THE POLICE
OUTSIDE THE HOME AND THE DOOR WAS OPEN OR CLOSED. THAT'S NOT RELEVANT TO MY QUESTION.
BUT THEY MET HIM AS HE WAS IN THE DRIVEWAY DOING WHAT HE'S DOING WITH THIS LAUNDRY BASKET.
WOULD YOUR POSITION BE THE SAME THAT THEY HAD THE RIGHT TO GO AND DO A PROTECTIVE SWEEP
INSIDE THE HOUSE EVEN THOUGH THEY HADN'T SEEN HIM COME OUT FROM IT? DEBORAH
BARTOLOMEY: WELL, DOES HE -- IT'S THE SAME THING, HE STILL HAS THE LAUNDRY BASKET. THEY
ASK HIM WHERE THE GUN IS AND HE DOESN'T SAY MY GNZ GUN's IN THE GARAGE. TO ME THAT WOULD
MAKE A BIG DIFFERENCE F THEY WENT IN THE GARAGE AND THEY DID FIND THE GUNS IN THE KNAPSACK,
THEN IT'S FINISHED T ARRESTS ARE DONE. JUSTICE LA VECCHIA: BUT BECAUSE THEY COULD
NOT FIND THE GUNS, THEY WOULD HAVE THE RIGHT TO GO IN THE HOUSE UNDER PROTECTIVE SWEEP
IN MY HYPOTHETICAL FACTUAL CHANGED CIRCUMSTANCES. DEBORAH BARTOLOMEY: RIGHT,
IT COULD BE. IT DEPENDS. IT'S HARD TO SAY. CHIEF JUSTICE RABNER: WE'LL
HAVE YOU BARK REBUTTAL. MR. VANJURA. STEFAN VAN JURA: MAY IT PLEASE THE COURT,
THERE WAS NOTHING AMBIGUOUS ABOUT THIS COURT'S HOLDING IN STATE V. DAVILA. ARE LAWFULLY
WITHIN THE PRIVATE PREMISE. DESPITE WHAT CIRCUIT COURTS IN OTHER STATES MIGHT HAVE SAID
OR MIGHT HAVE DONE, THIS LANGUAGE MEANS EXACTLY WHAT IT SAYS. IN NEW JERSEY, THE PROTECTIVE
SWEEP DOCTRINE CANNOT JUSTIFY ENTRY INTO A HOME. THERE ARE PLENTY OF MORE OTHER CIRCUMSTANCES
THAT CAN BUT NOT THE PROTECTIVE SWEEP DOCTRINE. FOR ANY TYPE OF SEARCH, INCLUDING PROTECT
SWEEP, BALANCING TEST. THE GOVERNMENT's NEED IS WEIGHED AGAINST THE DEGREE OF INTRUSION
THE GOVERNMENT HAS A NEED TO ENSURE OFFICER'S SAFETY. THAT NEED IS LEGITIMATE BUT IT
DOESN'T CHANGE BASED ON THE LOCATION OF THE ARREST. ON THE OTHER SIDE OF THE SCALE,
PHYSICAL ENTRY OF THE HOME IS ONE OF THE MOST INTRUSIVE INVASIVE SEARCHES POSSIBLE. WHICH
COULD INCLUDE MAKING AN ARREST, THE BALANCING TEST FAVORS PRIVACY. THAT I BELIEVE IS
THE CONCLUSION THAT THIS COURT REACHED OVER A DECADE AGO IN DAVILA AND THERE'S NO REASON
TO DEPART FROM IT NOW. JUSTICE SOLOMON: COULD A LAWFUL INTEREST BE SEEING
SOMEBODY ELSE MOVING AROUND IN THE HOUSE AND KNOWING THERE ARE GUNS IN THERE?
STEFAN VAN JURA: THAT WOULDN'T BE EXIGENT CIRCUMSTANCES, YOUR HONOR. WOULD I WOULD SAY
FIRST IS WE DON'T EVEN GET THERE. A REASONABLE SUSPICION IS NEVER ENOUGH TO GET INTO
THE HOME WITH AN ARREST OUTSIDE OF THE HOME. IF THIS COURT WERE TO DISAGREE AND SAY THAT
SOMETIMES YOU CAN GET INTO A HOME WITH REASONABLE AND ARTICULABLE SUSPICION ACCOMPANY
ING AN ARREST OUTSIDE OF THE HOME, THAT HYPOTHETICAL WOULDN'T EVEN MEET THAT TEST,
YOUR HONOR. JUSTICE SOLOMON: WHY? STEFAN VAN JURA: WHY WOULD
IT NOT? JUSTICE SOLOMON: YES. STEFAN VAN JURA: THAT SOMEBODY'S
IN THE HOME WHO HAS ACCESS TO A GUN? JUSTICE SOLOMON: YES. WHILE THE ARREST
IS GOING ON. STEFAN VAN JURA: IT WOULD HAVE TO BE IN CONJUNCTION WITH SOME
BELIEF THAT THAT PERSON WITH ACCESS TO THE GUN HAS ANY TO USE IT AGAINST THE OFFICERS.
JUSTICE SOLOMON: BUT YOU DON'T JUST NEED TO KNOW GUNS AND PERSONS IN THE HOUSE,
YOU NEED TO KNOW -- STEFAN VAN JURA: EXACTLY, YOUR HONOR. JUSTICE
PATTERSON: HOW MIGHT THE OFFICERS KNOW THAT. UNDER THESE CIRCUMSTANCES WHERE THEY'RE
THERE TO CONFISCATE GUNS. SO YOU HAVE SOMEONE IN THE HOUSE. PRESUMABLY THEY HAVEN'T
INTERVIEWED THE PERSON. THEY JUST SEE THE PERSON IS IN THE HOUSE. THEN YOU HAVE GUNS
THERE. HOW WOULD THEY BE ABLE TO ASCERTAIN FOR PURPOSES OF THE REASONABLE SUSPICION THAT
WOULD JUSTIFY A PROTECTIVE SWEEP THAT PERSON'S VIEWPOINT ON THEY'RE BEING THERE TO CO
NFISCATE THE GUNS? STEFAN VAN JURA: MAYBE THEY WOULDN'T AND UNDER THOSE
CIRCUMSTANCES THEY WOULD HAVE NO BUSINESS ENTERING THE HOME. JUSTICE FERNANDEZ-VINA:
YOU HAVE TO KNOW THE PERSON'S STATE OF MIND BEFOREHAND. PERHAPS IT WAS A RELATIVE OR
SOMEONE WHO MIGHT WANT TO PROTECT THE INDIVIDUAL. YOU DON'T KNOW. THAT HE INTENDS TO
SHOOT POLICE OFFICERS. IS THAT WHAT. STEFAN VAN JURA: OR POSE A RISK OF DANGERS
TO OFFICER OR OTHER PEOPLE ON THE SCENE. JUSTICE FERNANDEZ-VINA: YOU STILL
HAVE TO DETERMINE THE PERSON'S STATE OF MIND BEFOREHAND. STEFAN VAN JURA:
GUN PLUS PERSON IS NOT I AM FEARING FOR MY LIFE. TO HAVE A GUN PLUS PERSON WITH SOME
SORT OF INTENTION. JUSTICE SOLOMON: WHAT ABOUT THE HISTORY OF THE ARRESTEE's
INVOLVEMENT WITH GUNS AND DRUGS AND OTHERS INVOLVED WITH GUNS AND DRUGS. DOES THAT
CHANGE THE EQUATION? STEFAN VAN JURA: IT COULD IN SOME CIRCUMSTANCES. IF
YOU KNEW THERE WAS A COULDN'T FEDERAL REVOCABLE TRUST INSIDE -- JUSTICE SOLOMON:
NO, NO. NOT THAT YOU KNEW THE COULDN'T FEDERAL REVOCABLE TRUST INSIDE WAS THE ARRESTEE
IS NOW IN THE DRIVEWAY OR ON THE FRONT PORCH HAS A HISTORY OF INVOLVEMENT WITH OTHERS
INVOLVED IN GUN AND DRUG ACTIVITY. STEFAN VAN JURA: AGAIN, TO BE CLEAR, YOUR
HONOR, I DON'T THINK YOU GET TO THAT QUESTION UNDER DAVILA. YOU HAVE TO HAVE EXIGENT
CIRCUMSTANCES AND PROBABLE CAUSE. BUT IF THIS COURT WERE TO CRAFT A NEW MORE GENEROUS
RULE FOR THE COURT, IT GOES CLOSER AND CLOSER EACH TIME YOU ADD A NEW SOMEWHAT --
JUSTICE ALBIN: AND IT DOESN'T HAVE TO BE JUST GUNS. IN DAVILA AND ALSO BUIE, THE DANGER
TO POLICE OFFICERS FROM SOMEONE WITHIN THE HOME COMING OUT OF ROOM AND LAUNCHING AN ATTACK
CAN BE WITH A KNIFE OR SOME OTHER SORT OF WEAPON. AND MY QUESTION TO YOU IS, FORGET ABOUT
THE DRIVEWAY. BUT LITERALLY ON THE THRESHOLD OF A PORCH WHERE A DOOR IS OPEN AND THERE
MAY EVEN BE OTHER FAMILY MEMBERS IN, IS THERE ANY LESS DANGER TO THE POLICE OFFICERS FROM
-- IF YOU MOVE TWO FEET THIS WAY OR TWO FEET THAT WAY? IF I'M TWO FEET IN THE HOME OR
I'M TWO FEET OUT OF THE HOME AND THE DOOR IS OPEN, IS THE DANGER LESS BECAUSE I'M TWO
FEET OUT OF THE HOME? STEFAN VAN JURA: . THE RULE I'M PROPOSING IS WHAT I
THINK THIS COURT ALREADY DECIDED 11 YEARS AGO T CROSSING OF THE THRESHOLD IS A CONSTITUTIONAL
SIGNIFICANT EVENT. CHIEF JUSTICE RABNER: ARE YOU SUGGESTING DAVILA DECIDED
THIS CASE? DAVILA WAS AN ARREST INSIDE THE HOME. STEFAN VAN JURA: I'M SUGGESTING
THAT THE RULE DAVILA ANNOUNCED APPLIES HERE AS WELL. BECAUSE DAVILA VERY CLEARLY SAYS
LAWFUL PRESENCE WITH INSIDE THE HOME. WITH RESPECT TO USING THE PROTECTIVE SWEEP
DOCTRINE ON THESE FACTS. SO, YES, I DO THINK DAVILA HAS ALREADY ADDRESSED THIS ISSUE,
ALTHOUGH THE FACTS ARE A LITTLE -- JUSTICE ALBIN: ARE YOU SAYING DAVILA
ESTABLISHED A BRIGHT LINE? LOOK, DAVILA DID NOT ADDRESS FACTS SUCH AS THE TWO CASES THAT
WE HAVE BEFORE US TODAY, CORRECT? STEFAN VAN JURA: THAT'S TRUE, YOUR HONOR,
BUT -- JUSTICE ALBIN: DAVILA DEALT WITH THE FACTS BEFORE IT AND ALSO GAVE
A WARNING TO POLICE NOT TO USE PROTECT ACTUAL REASONS TO GET INTO THE HOUSE TO CONDUCT
A PROTECTIVE SWEEP. IT JUST DIDN'T DEAL WITH FACTS LIKE THIS. STEFAN VAN JURA:
THAT'S CORRECT, YOUR HONOR. BUT NOTHING IN THE OPINION EXPRESSLY SPED THIS RULE WE'RE
CRAFTING WOULDN'T APPLY TO THIS SCENARIO. JUSTICE ALBIN: LET ME JUST ASK YOU
THIS QUESTION. WE CAN CREATE THE SORT OF LEGAL CONSTRUCT THAT YOU'RE TALKING ABOUT THAT
ONCE YOUR A FOOT OR TWO FEET OUTSIDE THE DOOR, YOU CAN'T GO IN. THAT COULD BE A LEGAL
CONSTRUCT. BUT THAT IS NOT GOING TO CHANGE THE POTENTIAL DANGER TO WHICH A POLICE OFFICER
IS EXPOSED. CORRECT? I MEAN, BECAUSE IF THEY'RE REASONABLY EXPOSED TO DANGER, THE FACT
THAT WE CREATE THIS LEGAL CONSTRUCT IS NOT GOING TO DEE FINISH THAT DANGER. STEFAN
VAN JURA: BUT WHAT IT WOULD DO, YOUR HONOR, IS RESPECT THE SANG TEA OF THE HOME.
CHIEF JUSTICE RABNER: SO YOU'VE COME FORWARD AS HAS MS. LERER AND SAID THIS IS A BALANCING
TEST. LOOK AT THE SANCTITY OF THE HOME AND OFFICER'S SAFETY. AND AS I UNDERSTAND YOUR
PRESENTATION IF THERE IS ANOTHER PERSON WHO DOES IN-DEED POSE A DANGER TO THE OFFICER,
IF THE ARREST TAKES PLACE A FOOT OUTSIDE THE HOME, THE OFFICER MAY NOT CROSS THAT
THRESHOLD AND ENTER IT. STEFAN VAN JURA: I THINK THAT'S A GOOD RULE, YOUR
HONOR. CHIEF JUSTICE RABNER: DOES THAT AFFORD SUFFICIENT WEIGHT TO OFFICER
SAFETY? STEFAN VAN JURA: IT DOES. BECAUSE WHAT THE OFFICER SHOULD DO IS
STEP AWAY FROM THE HOME. HE'S COMPLETELY ARRESTED OUTSIDE THE HOME. NOW RESPECT THE
SANCTITY OF THE HOME. JUSTICE ALBIN: WHEN YOU'RE ARRESTING SOMEONE WHO MAY
BE RESISTING, IT DOESN'T HAPPEN INSTANTANEOUSLY. IT MAY TAKE A COUPLE OF MINUTES. WHAT
I'M TRYING TO UNDERSTAND, WITHIN THE ZONE OF DANGER THAT SOMEONE MAY COME OUT OF A ROOM
AND LAUNCH AN ATTACK, THAT'S THE REASON FOR A PROTECTIVE SWEEP. I'M TRYING TO FIGURE
OUT WHAT'S THE DIFFERENCE IF YOU'RE ONE FOOT OUTSIDE THE HOME. IS THERE LESS OF A FEAR
THAT AN ATTACK MAY BE LAUNCHED FROM BEHIND THE DOOR? HICHLT MAYBE GEG NEGLIGIBLY LESS.
JUSTICE ALBIN: WHY? STEFAN VAN JURA: BECAUSE OF THE PROXIMITY,
I SUPPOSE. IF YOU'RE TALKING ABOUT BEING RIGHT NEAR THE THRESHOLD, WHATEVER DANGER IS
ONE FOOT INSIDE THE HOME IS PROBABLY PRETTY MUCH THE SAME AS ONE FOOT OUTSIDE THE HOME.
BUT WHAT IS NOT THE SAME IS THE OTHER SIDE OF THE BALANCING EQUATION, WHICH WE USE TO
ASSESS REASONABLENESS. THE OTHER SIDE IS PHYSICAL ENTRY INTO THE HOME AND THAT IS OF
PARAMOUNT IMPORTANCE. SO BY ALL MEANS IN THAT SITUATION THE OFFICER SHOULD
RE-MOVE HIMSELF FROM THE DANGEROUS SITUATION. IF HE HAS PROBABLE CAUSE AND --
JUSTICE ALBIN: IT TAKES TIME TO RE-MOVE YOURSELF FROM YOU'RE ARRESTING SOMEONE ON THE
THRESHOLD. LOOK, WE HAVE EXCEPTION. THE HOME IS SACROSANCT. BUT WE DO HAVE EXCEPTIONS
GOING INTO THE HOME. WE HAVE THE PUBLIC SAFETY EXCEPTION. TO GO INTO THE HOME. DESPITE
IT'S SACROSANCT, THERE'S CERTAIN EXIGENT CIRCUMSTANCES THAT WARRANT ENTRY NOT ONLY FOR
POLICE SAFETY BUT MAYBE FOR PERSONAL SAFETY OF OTHERS. SO THE QUESTION IS, ARE WE GOING
TO HAVE THIS SORT OF ABSOLUTE BRIGHT LINE THAT YOU'RE PROPOSING TO US, DOES THAT ACCORD
WITH THE REMAINDER OF OUR JURISPRUDENCE? STEFAN VAN JURA: I DON'T KNOW THAT
IT'S AN ABSOLUTE BRIGHT LINE. I THINK THAT IT'S -- THE BALANCING TEST THAT HAD ALREADY
BEEN CONDUCTED IN DAVILA BASED ON MY READING OF DAVILA. I'M GATHER FRG THE COURT'S QUESTIONS
THAT THAT POSITION MAY NOT WIN THE DAY. MY ALTERNATIVE POSITION IS THAT AT THE VERY
LEAST THIS COURT MUST REQUIRE REASONABLE AND ARTICULABLE SUSPICION ACCOMPANYING AN ARREST
OUTSIDE THE HOME TO HE WANT A HOME. AND THAT WAS NOT PRESENT IN THIS CASE. THERE WERE
FIVE FACTORS THAT THE LOWER COURT RE-LIED ON. THE FORFEITURE ORDER DID NOT AUTHORIZE
ENTRY INTO THE HOME. WITH RESPECT TO 103 BROWERTOWN, THEY ENTERED ONE BROWERTOWN. IT
WAS EXECUTED NEARLY THREE MONTHS AFTER IT WAS SIGNED WITH NO SORT OF FOLLOW-UP
INVESTIGATION. THE PERSON IN THE BACKYARD WERE YOU A PERSON IN BLUE WHO WENT INTO THE
BACK DOOR OF THE BACK OF THE HOUSE AND MOMENTS LATER SOMEBODY IN BLUE IS ARRESTED IN FRONT
OF THE YARD. IT COULD HAVE BEEN SOMEBODY ELSE, BUT REASONABLY, THAT WAS DEFENDANT. THE
LOUD BANG, NOBODY AT THE SCENE THOUGHT THAT WAS A GUNSHOT. THAT WAS A METAL CLANGING
SOUND. IT WOULDN'T ADD ANYTHING TO THE BELIEF THE OFFICERS WERE FACED WITH A DANGER.
AND I DISAGREE WITH THE STATE ON THE SIGNIFICANCE OF THE CARS IN THE DRIVEWAY.
THERE WERE TWO CARS, ONE OF WHICH WAS KNOWN TO BE DEFENDANTS AND THE OTHER ONE WAS NOT
KNOWN TO THE TO BE DEFENDANTS. RATHER, THEY DID NO ADDITIONAL INVESTIGATION. SO IT
WAS JUST A SECOND CAR. THAT'S ALL WE HAVE IN THE RECORD. NOT LET'S INFER SOMEBODY ELSE
IS PROBABLY VISITING. FINALLY, THE COURT NOTED DEFENDANT'S CONTRADICTORY ANZ
TO POLICE BUT THAT WAS NOT SUPPORTED BY THE RECORD EITHER. THERE WAS NOTHING
CONTRADICTORY ABOUT WHAT DEFENDANT SAID. WHEN HE WAS ARRESTED HE SAID I HAD THE 357-MAGNUM
ALREADY SEIZED BY CLIFTON POLICE AND I SOLD THE BERETTA. THAT ON ITS FACE IS A VERY
REASONABLE AND CONSISTENT ANSWER NOT CONFLICTING WITH ANYTHING ELSE THAT THE POLICE KNEW
AT THAT TIME. SO IF THIS COURT CANNOT INCLINED TO ACCEPT MY FIRST POSITION
IS THEY COULD NEVER ENTER, THEY COULDN'T UNDER UNDER THESE CIRCUMSTANCES BECAUSE THERE
JUST WASN'T A REASONABLE BELIEF SOMEBODY WAS ARMED AND DANGEROUS INSIDE THE HOME.
CHIEF JUSTICE RABNER: CAN YOU SHED ANY LIGHT ABOUT HOW FAR THE DEFENDANT WAS FROM THE
FRONT DOOR WHEN HE WAS ARRESTED? STEFAN VAN JURA: ALL WE KNOW FROM THIS
RECORD IS THAT HE WAS ARRESTED AFTER PUTTING A LAUNDRY BASKET IN THE BACK OF THIS GMC EN
VIDEO, I BELIEVE IT WAS. AN SUV. THE DOOR WAS LEFT OPEN BECAUSE HE WAS GOING BACK INTO
THE HOME. I WENT ON A LITTLE TANGENT THERE. ALL WE REALLY KNOW IS THAT HE WAS JUST LEAVING
THE SUV. WE DON'T KNOW ANYTHING ABOUT THE SIZE OF THE HOUSE. UNLESS WE GO TO GOOGLE
MAPS, THIS COULD HAVE BEEN A TWO-MILE DRIVEWAY FOR ALL WE KNOW. AND IT'S THE STATE'S
BURDEN TO -- JUSTICE LA VECCHIA: IN LITTLE FALLS? STEFAN VAN JURA:
IT'S UN-LIKELY, RIGHT? THAT'S TRUE. AND IT SEEMS -- CHIEF JUSTICE RABNER:
WE'LL TAKE THAT CONCESSION. STEFAN VAN JURA: IT SEEMS REASONABLE THAT THIS
WAS A SMALL HOME AND A SMALL FRONT YARD AND IF YOU WERE TO GO TO GOOGLE MAPS YOU MIGHT
CONFIRM THAT VIEW, A GOOGLE STREET VIEW. BUT IT'S NOT IN THE RECORD AND IT'S NOT MY
BURDEN, IT'S THE STATE'S BURDEN TO INVOKE THIS EXCEPTION. JUSTICE ALBIN: DO
WE KNOW HOW KWIEK LI THEY WERE ABLE TO HANDCUFF HIM AND TAKE HIM INTO CUSTODY.
STEFAN VAN JURA: I THINK IT WAS QUITE QUICK. HE WAS TACKLED AND HE WAS ARRESTED. HE
DIDN'T RESIST. IT WASN'T AS THOUGH THERE WAS A STRUGGLE OR ANYTHING LIKE P THE OFFICER
WAS RIGHT ON HIM AS SOON AS HE WAS SEEN LIVING. JUSTICE ALBIN: I GUESS UN-
LIKE WHEN YOU'RE IN A HOUSE AND SOMEBODY COMES AROUND -- THE POLICE WERE GUARDING THE HOUSE.
IT'S NOT LIKE ANYONE COULD HAVE SURPRISED IF IF THEY'RE LOOKING AT THE FRONT DOOR.
STEFAN VAN JURA: LIKE YOU SAID, YOUR HONOR, THIS WAS AVERT TABL SWAT TEAM. JUSTICE
LA VECCHIA: HOW MUCH TIME ELAPSED BETWEEN THE ACTUAL TACKLING ARREST OF DEFENDANT AND
THE OFFICERS ENTERING THE HOME TO ENGAGE IN THIS SWEEP? STEFAN VAN JURA:
I DON'T THINK IT'S CLEAR IN THE RECORD BUT I THINK IT'S A FAIR INFERENCE IT WAS PRETTY
MUCH WITHIN A FEW MINUTES. THE DETECTIVE ON THE SCENE SAID -- I'D LIKE TO QUOTE WHAT
HE SAID ACTUALLY BECAUSE I THINK IT'S INSTRUCTIVE. HIS REASON FOR THE SWEEP, FOR
ANYBODY WHO -- THAT MAY BE INSIDE THE RESIDENCE, TO PROTECT THE OFFICERS AT THE SCENE DUE
TO THE FACT THAT THERE ARE WEAPONS ON THE FACT AND THAT, YOU KNOW, I HAVE A CONCERN FOR
THE SAFETY OF THE OFFICERS AND I WANTED TO MAKE A PROTECTIVE SWEEP FOR PEOPLE. I THINK
THAT'S ALL WE REALLY NEED TO KNOW. IT'S NOT THE OFFICERS SUBJECTIVE INTENT THAT CONTROLS.
THIS OFFICER HIMSELF HAD SOME VAGUE NOTION THERE MIGHT BE SOMEBODY INSIDE. THIS WAS NOT
A PERSON WHO HE BELIEVES IS A COULDN'T FEDERAL REVOCABLE TRUST BASED ON DEFENDANT'S UNDER
WORLD DEALINGS WHO WOULD HARM THE POLICE IF HE HAD ACCESS TO A WEAPON. SO
THE ONLY PLACE WHERE I DISAGREE WITH THE APPELLATE DIVISION IS I BELIEVE THEY SHOULD
HAVE GONE EITHER FURTHER AND ORDERED SUPPRESSION OUTRIGHT AS I WROTE IN MY BRIEF. THE
WARRANT DOESN'T. CHIEF JUSTICE RABNER: WHAT ABOUT THE FATHER's STATEMENT?
STEFAN VAN JURA: IT'S CLEAR IN THE RECORD IT CAME AFTER THE POLICE --
CHIEF JUSTICE RABNER: WE KNOW THAT IT WAS TAINTED BY THE PROTECTIVE SWEEP. WHEN WAS THE
DECISION REACHED TO INTERVIEW THE FATHER? STEFAN VAN JURA: AFTERWARDS.
CHIEF JUSTICE RABNER: HOW DO WE KNOW THAT? STEFAN VAN JURA: I'D LIKE TO QUOTE
THE LANGUAGE FROM THE WARRANT, IF I MAY. CHIEF JUSTICE RABNER: ARE YOU LOOKING
AT THE -- STEFAN VAN JURA: THE CONFIDENTIAL APPENDIX, YOUR HONOR, YES. THE
LAST PARAGRAPH. SO OFFICERS OBSERVED THIS CONTRABAND, BUTTERFLY KNIVES, THAT KIND OF
STUFF. READING READING LONG GUNS. THIS IS AFTER ARRESTING HIM. THEN ON THE NEXT PAGE,
BECAUSE THIS IS A CHRONOLOGICAL NARRATIVE IN THE FIREARMS AND THEIR WHEREABOUTS. MR.
RADEL ADVISED THAT CHRISTOPHER HAS HIS FIREARMS IN A GREEN APPROXIMATELY FIVE-FOOT TALL
SAFE WHICH IS CREATED AT 81 BROWERTOWN ROAD. SO IT DOESN'T SAY I EXPLOITED THAT
KNOWLEDGE I JUST GAINED AND I JUST SPECIFICALLY CROSS-EXAMINED HIM ON WHAT COLOR THE SAFE
WAS I SAW IN HIS ROOM, IT'S NOTHING LIKE P BUT IT'S A FAIR INFERENCE. CHIEF
JUSTICE RABNER: WELL, THE POLICE INTERVIEWED THE MOTHER BEFORE THE PROTECTIVE SWEEP,
CORRECT? STEFAN VAN JURA: BY PHONE THEY HAD BEEN TRYING TO GET IN TOUCH WITH
HER TO GET IN TOUCH WITH MY CLIENT. CHIEF JUSTICE RABNER: THEY SPOKE WITH
THE MOTHER BEFORE? STEFAN VAN JURA: BY TELEPHONE, YES. CHIEF JUSTICE
RABNER: IS THERE ANYTHING IN THE RECORD THAT TELLS US WHETHER SHE INTEND TO DO SPEAK
TO THE FATHER BEFORE THE PROTECTIVE SWEEP? AREN'T THOSE THE SORTS OF FACTS THAT --
STEFAN VAN JURA: YES F THIS COURT DISAGREES THAT TAINT ISN'T CLEAR, AND THIS IS THE ONLY
THING THAT WOULD SUPPORT PROBABLE CAUSE, THE APPELLATE DIVISION REMAND FOR THAT HEARING
SHOULD INCLUDE ALSO INQUIRY INTO THE TAINT. BECAUSE THE REMAND's PURPOSE IS TO DETERMINE
WHETHER THE WARRANT SURVIVES AFTER EXERCISING THE UN-LAWFULLY OBTAINED INFORMATION.
CHIEF JUSTICE RABNER: IT SOUNDED LIKE YOU WERE ASKING US TO ADDRESS THAT IF WE WERE TO
FIND IN YOUR FAVOR ON THE OTHER ISSUE AND IT DOESN'T SEEM THE RECORD IS CLEAR ENOUGH TO
MAKE THAT DETERMINATION. AM I MISTAKEN? STEFAN VAN JURA: MAYBE IT'S THE
STRETCH THAT I MAKE M MY ARGUMENT. THAT MAY WELL BE THE GREATEST STRETCH THAT I PROPOSE
TO THE COURT TODAY BUT IT'S NOT MUCH OF A STRETCH. CHIEF JUSTICE RABNER:
PART OF THE BRIGHT LINE RULE. STEFAN VAN JURA: FAR PAST THE BRIGHT LINE RULE.
JUSTICE ALBIN: BASED UPON THE OCTOBER ORDER, THEY COULD HAVE GOTTEN A SEARCH
WARRANT FOR THE PARENTS' HOME. DO YOU AGREE? STEFAN VAN JURA: YES. I THINK
IT'S A FAIR INFERENCE GIVEN THE CHRONOLOGY, YOUR HONOR. SO I DON'T THINK IT'S MUCH OF
A STRETCH ALTHOUGH I WILL SAY IT IS AN INFERENCE THAT I'M ASKING THE COURT TO DRAW BASED
ON THE CHRONOLOGIES SET FORTH IN THE SUPPRESSION TRANSCRIPT AND IN THE WARRANT AFFIDAVIT.
BUT THE APPELLATE DIVISION BASICALLY ALREADY ORDERED THAT IN THIS CASE WHEN I PREVAILED
IN THE APPELLATE DIVISION. BASICALLY THAT HEARING SHOULD HAVE INCLUDED AN INQUIRY INTO
TAINT IN THAT WAY. JUSTICE ALBIN: YOU WOULD AGREE ONCE THEY LEARNED THEIR
ADDRESS, FORGET ABOUT THIS PROTECTIVE SWEEP, BASED UPON THE OCTOBER ORDER, THEY WOULD
HAVE HAD PROBABLE CAUSE TO SEARCH ANY HOME WHERE HE LIVED. STEFAN VAN JURA:
PERHAPS. I HAD YOU A LITTLE BIT ON THAT, BECAUSE THIS IS THREE MONTHS OLD. SO AT SOME
POINT SOMEBODY BELIEVED IF NOT KNEW THAT HE HAD A GUN. THAT ORDER SAYS NOTHING ABOUT
HIM BEING ABLE TO LAWFULLY TRANSFER THAT GUN OWNERSHIP ANY TIME BEFORE THAT IF NOT LONG
BEFORE P DEFENDANT COULD HAVE LAWFULLY SOLD HIS GUNS BEFORE LITTLE FALLS POLICE ARRIVED
AT HIS HOME AND SAID GIVE US YOUR GUNS. BUT I HAVE A RECEIPT FROM BILL's GUN SHOP SHOWING
I SOLD THE BERETTA FOR A HUNDRED DOLLARS. MAYBE THAT WOULD HAVE SATISFIED THE POLICE.
CHIEF JUSTICE RABNER: OTHER QUESTIONS? STEFAN VAN JURA: I
WOULD JUST LIKE TO CONCLUDE BRIEFLY. EXCEPTIONS TO THE RULE REQUIREMENT ARE NUMEROUS AND
THEY RISK SWALLOWING THE RULE IF THEY ARE NOT STRICTLY TO FILL A GAP THAT DOESN'T EXIST.
IF THE POLICE HAD A LEGITIMATE CONCERN THAT THEY WERE IN IMMINENT AND SERIOUS DANGER,
NOBODY WOULD SUGGEST THEY COULDN'T ENTER A HOME TO SAVE LIVES. THAT WOULD FALL UNDER
-- EITHER UNDER EXIGENT CIRCUMSTANCES OR EMERGENCY AID CIRCUMSTANCES. EVEN IF THIS
COURT WERE INCLINED TO ALLOW ENTRY INTO A HOME AFTER AN ARREST OCCURRING JUST INSIDE THE
HOME, THE CIRCUMSTANCES HERE DO NOT PRESENT A REASONABLE BELIEF THAT SOMEBODY INSIDE
THE HOME POSED AN IMMINENT DANGER TO THE POLICE OR THE PUBLIC. I RESPECTFULLY REQUEST
THAT THIS COURT AFFIRM THE APPELLATE DIVISION'S DECISION IF NOT GOING EVEN FURTHER IN
ORDERING SUPPRESSION OUTRIGHT. CHIEF JUSTICE RABNER: I WANTED TO FOLLOW UP
ON MY ATTEMPTED LEVITY EARLIER. THE BRIGHT LINE RULE YOU'RE ADVANCE SG A LEGITIMATE ARGUMENT
THAT THE COURT NEEDS TO CONSIDER CHIEF JUSTICE RABNER: MS. LERER.
TAMAR Y. LERER: HELLO, YOUR HONOR'S. NICE TO BE BACK HERE. CHIEF JUSTICE
RABNER: NICE TO HAVE. TAMAR Y. LERER: MAY IT PLEASE THE COURT, IT I WOULD
LIKE TO RESERVE 2 MINUTES FOR REBUTTAL IF NECESSARY. CHIEF JUSTICE RABNER:
THAT'S FINE S. TAMAR Y. LERER: THE CIRCUMSTANCES UNDER WHICH A HOME CAN BE
ENTERED ARE LIMIT THE, CAN BE ENTERED ARE LIMITED AND CLEARLY DEFINED. UNDER THE FEDERAL
AND NEW JERSEY CONSTITUTIONS, THE RIGHT OF PRIVACY OWNED HOME IS FIRST AMONG EQUALS.
AS A SUPREME COURT OF THE UNITED STATES HAS EXPLAINED IT AND AS THIS COURT HAS
ACKNOWLEDGED. BUT THE PRIME SEE THE HOME SEEMS TO BE LOST A LITTLE BIT IN THIS CONVERSATION.
PAT TON, SEE YOU GULD, MOST REEMENT LANG VERSUS CALIFORNIA AFFIRM THERE ARE 3 WAYS TO
GET INTO A HOME, WARRANT, CONSENT, EXIGENCY. AND AGAIN AND AGAIN THIS COURT HAS DEFENDED
THE CONSTITUTION IN THE HOME AGAINST ARGUMENTS THAT A NOZZLE LAW ENFORCEMENT NEED JUSTIFIES
ENTRY IN SOME OTHER WAY AND UNDER SOME LESSER STANDARD. IN VAR GUS THIS COURT HE AMORPHOUS
COMMUNITY CARETAKING DOKS TRIN THAT WAS UNHINGED FROM EXIGENCY AND SAID WITHOUT SOME FORM
OF EXIGENCY, A NONCONSENSUAL ENTRY INTO THE HOME BY POLICE IS OBJECTIONABLE BLEE REASON
BL A, IN BOUND VERSUS STATE THIS COURT REJECTED THE ROIT T ENTER MERELY TO SECURE A PREMISES
AND SAID THE PRIMARY REQUIREMENT THE IS A WARRANT CLEARLY GRANTED SON SENT OF EXIGENCY
WHICH CREATES ITS OWN SET OF RULES. AND LAST IN WRITE, THIS COURT REJECTED THE R PRIVATE
SEARCH DOCTRINE IN HOMES. AND IN ALL OF THESE CASES WHAT THE COURT RECOGNIZED IS WHAT
THIS COURT DID IN PAT TON, THE UNAMBIGUOUS DIMENSION OF A HOME ARE NOT A MERE
TECHNICALITY, THEY ARE THE SAFEST AND MOST IMPORTANT OF STUG THRESHOLDS. AND THE
PROTECTIVE SWEEP DOCTRINE HAS NEVER BEEN AND CANNOT BE DOCTRINE THAT ALLOWS ENTRY AND
THE REASONING BEHIND IN EXCEPTION DOES NOT HOLD IN THE ARREST OUTSIDE SITUATIONS.
SO START WITH BUIE S BUIE SAID IT IS THE ENTRY INTO THE SHOEM ITSELF THAT IS DANGEROUS.
WHEN AN ARREST DOESN'T TAKE PLACE IN THE SUSPECT HOME, POLICE AREN'T FORCED INTO THE
"CONFINED SETTING OF UNUNION CONFIGURATION" THAT BU BREE WORRIED ABOUT. BUIE WORRIED
ABOUT POLICE ALREADY PIERCED IN THRESHOLD, THAT THE BUY NAER NN OUT HAS ALREADY BEEN MADE
IN AND NOUTS' A QUESTION OF DEGREE. PEOPLE LURKING INSIDE CLOSETS, PEOPLE LURKING INSIDE
CLOSED DOORS WHERE YOU DON'T KNOW WHAT'S HIEB THE DOOR, YOU DON'T KNOW -- JUSTICE
ALBIN: YOU HEARD MY QUESTION EARLIER. TAMAR Y. LERER: YES. JUSTICE
ALBIN: AN ARREST OCCURS IMMEDIATELY OUTSIDE THE DOOR. OKAY. COULDN'T HAVE OCCURRED ONE
FOOT IN THE DOOR AND THE DOOR IS OPEN. WHY ISN'T THE RATIONALE OF THE PROTECTIVE SWEEP
EQUALLY APPLICABLE THERE, ASSUMING THAT THERE'S REASONABLE AND ARTICULABLE SUSPICION?
THE SAME REASONABLE AND ARTICULABLE SUSPICION THAT WOULD HAVE BEEN ONE FOOT INSIDE IS
ONE FOOT OUTSIDE WHILE THE POLICE ARE WRESTLING WITH SOMEONE AND THERE MAY BE EMOTIONALLY
LADENED FAMILY MEMBERS OR FRIENDS INSIDE THE HOUSE. GO AHEAD. TAMAR Y.
LERER: I'M MORE STUBBORN THAN MR. VAN JURA. I HAVE A 3 PART ANSWER TO THE QUESTION.
FIRST RETURNS ME TO BU. SAID YOU THE UNNONKOEN CONFIGURATIONS INSOOD THE HOME MENT NUR
A PARTICULAR KIND OF DANGER WHEN YOU'RE INSIDE A SPACE HAD THAT YOUR ADVERSARY KNOW AND
YOU DON'T KNOW AND THERE'S ALL SORTS OF PLACES A PERSON CAN BE. THAT'S BU EE. PERSON.
JUSTICE FERNANDEZ-VINA: WEEK TALKING ABOUT SOMEONE COMING AT CLOSELY, HOW
WHEN THEY GOES IN THE HOUSE, YOU DON'T HAVE TO COME VERY CLOSE TO SOMEONE TO SHOOT THEM
OUTSOOD THE WINDOW. DOES THAT CHANGE THE ARGUE MANY AT ALL? TAMAR Y. LERER:
NO, BUT IT GOES TO EXIGENCY. SO I THINK MAYBE MY PRIMARY POINT HERE IS OF THE EXIGENCY
DOCTRINE EXISTS AND IT ALLOWS ENTRY WHEN THERE'S PROBABLE CAUSE THAT THESE KIND OF
CIRCUMSTANCES ARE DANGEROUS AND AS THIS COURT HAS SAID, MAYBE TO MY CHAGRIN.
JUSTICE FERNANDEZ-VINA: THEY HAD GUN, THERE WERE GUNS THAT WEREN'T TURNED IN AND THEY
SAW SOMEONE OUTSIDE TOO WHO MAY HAVE BEEN THE PERSON THEY WERE INTEEKING TO ARREST GOING
TO THE HOME. TAMAR Y. LERER: I DON'T REPRESENT MR. RAD RADEL.
JUSTICE FERNANDEZ-VINA: YOU ARE HERE AS A PUBLIC DEFENDER. TAMAR Y. LERER:
IF IT WAS EXIGENCY, SOUND LIKE IT MIGHT BE BUT I DON'T KNOW. WHAT THIS COURT HAS SAID
AGAIN AND AGAIN IS PROBABLE CAUSE IS NOT THAT MY OF A STANDARD AND THE CLOSENESS TO A
THRESHOLD AND THE FACT OF THE ARREST ARE OBVIOUSLY FACTORS THAT GO FO R TO EXIGENCY.
WHAT THE STATE HAS NOT COMPLAINED AND CAN'T EXPLAIN WHY THOSE ARE FACTORS THAT CHANGE
THE STANDARD FOR ENTRY. ALL OF THESE FACTORS MATTER AND IT COULD VERY, VERY WELL BE THAT
IN MANY OPEN DOOR ARREST SITUATIONS WHEN THERE ARE SOME OTHER FACTS HERE WE GET TO EXIGENCY.
JUSTICE ALBIN: BUIE AND DEVILLE LA DEALT WITH THE FACTS THAT WERE BEFORE
THEM. I BELIEVE THERE WAS AN ARREST IN THE HOUSE. AND THE POLICE WERE IN THE HOUSE AND
THEY WERE ARGUING THAT, THIS ONE, YOUR CASE, IS LITERALLY ON THE PORCH, ON THE THRESHOLD,
OKAY, WITH THE DOOR OPEN, WITH INFORMATION THAT THERE'S ANOTHER PERSON INSIDE AND THE
POLICE ARE TOLD AND BE FAIR CAREFUL S. TAMAR Y. LERER: I WANT TO SEPARATE
THES RPS ARGUMENT BY EXIGENCY AND REASON AUS SUSPENSION FROM THE THRESHOLD WHICH I'M THOT
READY TO MITIGATING FACTOR ON FROM CAN YOU ENTER THE HOME WITH A LOWER STANDARD THAN
PROBABLE CAUSE. JUSTICE ALBIN: WE KNOW YOU CAN. WE HAVE THE EMERGENCY AID
DOCTRINE, WE HAVE THE PUBLIC SAFETY EXCEPTION. YOU CAN GET INTO THE HOUSE WITHOUT PROBABLE
CAUSE MENT WE'VE SAID THAT. TAMAR Y. LERER: THE EMERGENCY AID DOCTRINE
SAID THERE NEEDS TO BE AN OBJECTIVELY REASONABLE BASIS TO BELIEVE AN OFFICER MUST PROVIDE
IMMEDIATE ASSISTANCE. I WOULD SUGGEST THAT THE OCTOBER TIFFLY REASONABLE BASIS IS PROBABLE
CAUSE BECAUSE THE COURT REVIEWED EXIGENCY IN DETAIL IN VAR GAS. THE OTHER THING I WANT
TO POINT THIS COURT IS IS THE DI SENT FOOTNOTE 4 IN BUIE WHERE THE DISSENT NOTES AND SOME
OTHER STATEMENT COURTS HAVE NOTED THIS, THAT WHILE THE COURT IN BUIE SAID THAT THE ARREST
OCCURRED INSIDE, THE COURT IN MARYLAND SAID IT MIGHT HAVE BEEN THAT HE WAS OUTSIDE. THE
DECENT SAID USING THE STANDARD SET FORTH BY THE MAJORITY, ON REMAN THE STATE COURT NEED
NOT DECIDE WHETHER THE REASONABLE SUS SPEPGS STANDARD IS SATISFIED IN THIS CASE, SHOULD
THE TERM THAT THE SWEEP OF THE BASEMENT TOOK PLACE AFRT POLICE HAD SUFFICIENT TIME TO
DEPART THE PREMISES. THE BUIE DESEN IN FOOTNOTE 4 IT TAKES THE MAJORITY ON ITS ACTUAL
STATED TEST. THE HE AT INSIDE THAT'S DANGEROUS. JUSTICE ALBIN: WOULD YOU
AGREE THAT T I KNOW YOU'RE RIGHT OBJECTIVELY REASONABLE BASIS MAY BE DIFFERENT THAN REASON
REASONABLE AND ARTICULABLE SUSPICION. BUT THE PROTECTIVE SWEEP DOCTRINE IS A SPECIES
OF EXIGENT CIRCUMSTANCES. IT MAY NOBT AT THAT LEVEL BUT IT IS OF A KIND, NO?
TAMAR Y. LERER: SO GLAD YOU ASKED THAT. OKAY. JUSTICE ALBIN: GO AHEAD.
TAMAR Y. LERER: I'M GOING TO SKIP FOR A SECOND TO WHAT THE OTHER COURTS
ARE DOING BECAUSE I THINK THIS IS THE ORIGIN STORY OF THE PROTECTIVE-SWEEP DOCTRINE AS
IT'S INTERPRETED BY THE COURTS THAT THE STATE WANTS US TO RELY ON IS REALLY IMPORTANT.
I HAVE READ EVERY SINGLE CASE THAT SAID I'M WRONG, I'M PATHOLOGICAL THAT WAY, AND ALL
OF THE COURTS THAT RELY, THAT GET HERE OPEN THE RUSSIAN NESTING DOLLARS THE MIDDLE 1 IS A
PRE BU BEE 9 MG CERTIFICATE CASE CALLED HIGHWAY YOES AND HIGHWAY Y'ALL IS ALL ABOUT EX
IGENCY AND THE CASE THAT HIGHWAYS YOES RELAYS N RELYING ON AL FAN SO IS SPECIFICALLY ABOUT
PROBABLE CAUSE EXIGENCY. SPECIFIC AND EXPLICITLY. SO TO EXTRAPOLATE
FROM AL FAN SO TO A LESSER STAN DAR IT DOESN'T MAKE SENSE. AND JUST BECAUSE AL THESE OTHER
DORTS DID IT DOESN'T MEENTSZ' GOOD LAW, DOESN'T MEAN IT'S GOOD LOGIC AND CERTAINLY DOESN'T
MEAN WE HAVE TO DO IT UNDER THE NEW JERSEY CONSTITUTION. CHIEF JUSTICE
RABNER: HELP ME UNSOMETHING. YOUR SPIGS QUITE QUEER ACLEAR, THERE'S AN ABSOLUTE LINE
AT THE FRONT DOOR. IS THERE A DIFFERENCE, HOWEVER, IN A SITUATION WHERE
THE POLICE CONFRONT SOMEONE ACROSS THAT THRESHOLD, IN WHATEVER ROOM APPEARS ON THE
OPPOSITE SIDE OF THE DOOR, LET'S SAY THE KITCHEN, AND A SITUATION WHERE THE POLICE ORDER
SOMEONE WHO IS IN THE HOUSE TO GET TO THE GROUND AND THAT PERSON THEN RUNS OUT AND IS
FIRST PHYSICALLY CONFRONTED, VERY, VERY CLOSE TO THE FRESH HOLD, DOES THAT MATTER IN THE
EE OCCASION. TAMAR Y. LERER: NOT FORTS STAN DAR FOR ENTRY, WHETHER THAT
STANDARD IS MET AND I THINK SOMETHING MORNTS IN TERRES, I DON'T WANT TO GET TOO FAR INTO
THIS UNLESS YOUR HONOR'S WANTS TO BECAUSE I UNDERSTAND IT'S ANCILLARY RIGHT NOW BUT THEY
DIDN'T HAVE A RIGHT TO GO INTO TERRES'S HOME EVER. THEY DIDN'T HAVE A SEARCH WARRANT
FOR THAT HOUSE. CHIEF JUSTICE RABNER: SHORT OF GETTING INTO THAT NUANCE
POINT, A DEFENDANT CAN DEFEAT THE PROTECTIVE-SWEEP DOCTRINE BY RUNNING OUTSIDE
THE HOUSE BY AFTER BEING ORRED NOT TO DO SO. IS THAT YOUR POSITION. TAMAR Y.
LERER: NO DEFEATING IS TAKE AFTER WAY FROM THE POLICE SOMETHING THEY ALREADY HAD
ENTITLEMENT. CHIEF JUSTICE RABNER: THETS A ASSUME THE POLICE HAD REASONABLE
SUSPICION THAT THERE'S ANOTHER PERSON INSIDES WHO POSES A DANGER TO THE OFFICER, THEY
CAN GET IN IF THEY COULDN'T 41 THE DEFENDANT A FOOT INSIDE THE HOME, BUT THEY MAY NOT IF
THE DEFENDANT RUNS OUT AND THE CONFRONTATION TAKES PLACE 12 INCHES ON THIS THE ON THAT
SILT SIDE, THAT'S YOUR VIEW. TAMAR Y. LERER: EVERYONE IS OUTSIDE THE HOME
IN THE SAFETY OF THE OUTSIDE THE HOME AND THLS THERE'S -- CHIEF JUSTICE RABNER:
WHY IS THAT A SAFE PLACE UNT THE FAKS THAT HAVE JUST BEEN ARCTIC LATER. TAMAR
Y. LERER: THE 71ST BECAUSE OF THE A SHUM SUN UNDERLYING HAVE THE WHOLE PROTECTIVE SWEEP
DOCK DRIN IS THAT THE UNKNOWN CONFIGURATION ON THE INSIDES OF A HOME DAFRJ RUCHLS THE
SECOND IS THAT WE HAVE NO EVIDENCE THAT GOING INSIDES A HOME, THE STATE WANTS THIS LOWER
STANDARD A NEW WAY TO ENTER THE HOME HAS PRESENTED NO EVIDENCE THAT EN ENTERING A HOME
MAKES POLICE SAFER AND IN MY RESPONSE BRIEF I BONY TO THE EVIDENCE AT THE VERY LEAST IT
MIGHT MAKE CIVILIANS LESS SAFE. I DON'T THINK WE CAN BLINDLY ASSUME WE'RE PROTECTING
POLICE WITHOUT ANY DATA TO THAT WHEN WE KNOW FOR CERTAIN WE'RE LOWERING CONSTITUTIONAL
PRO SEK TEKZS OEFRN THE EVENTS THAT HAVE BEEN PLAYED OUT QUITE CLEARLY REEL MAYBE LOWERING
PROTECTION FOR CIVILIANS. SO THE A UM SHUN UNDERLYING BUIE WHICH WAS NEVER TESTED BUT
EVERYONE HAS ACCEPTED IS FINE. INSIDE IS DANGEROUS. FERN FRN WHAT KIND OF DATA WOULD
BE ACCEPTABLE TO YOU. TAMAR Y. LERER: I DON'T HAVE HAVE THE BURDEN TO
CREATE NEW WARRANTS EX SENGS R FERN YOU SAID WE NEED DATE TASHGS I DON'T KNOW WHAT THAT
COULD BE, I THOUGHT YOU COULD PERHAPS HELP THE CORE OUGHT. TAMAR Y. LERER:
THE STATE CITES TO ANECDOTAL, A FEW CASES THAT SOMEONE WAS ATTACKED FROM INSIDE WHILE
THEY WERE OUTSIDE. THE DATA I FOUND WHICH IS MY RESPONSE BRIEF TO THE A G IS THAT A TACK
KS DURING THE ARRESTS ARE Vs VERY RARE, FELONIOUS A TACK. AM AL I'M GOING BACK TO THIS
AND FORGIVE ME FOR REPEATING THIS, IF THE PROTECTIVE-SWEEP DOCTRINE APPLIES WITHIN ONE
FOOT INSIDE THE HOME, HOW IS EVERYTHING CHANGED WHEN THE DOOR IS OPEN AND THEY'RE ONE
FOOT OUTSIDE THE HOME. NOW I WANT US TO DEAL WITH REALITY. TAMAR Y. LERER:
BECAUSE THE THRESHOLD OF THE HOME CONSTITUTIONALLY IS -- JUSTICE
ALBIN: I KNOW THE THRESHOLD, I KNOW THE LEGAL CONSTRUCT. I'M TALKING ABOUT THE DANGER
OF THE, THE DANGER WAS AS GREAT WITHIN ONE FOOT, HOW HAS IT DISSIPATED BECAUSE IT'S ONE
FOOT OUTSIDE? THAT'S WHAT I'M TRYING TO UNDERSTAND. TAMAR Y. LERER:
BECAUSE IT'S THE AMBUSH INSIDES THE HOME FROM THE CLOSED DOORS FROM THE CLOSET WHEN YOU'RE
IN THERE, THAT'S THE DANGER THE BUIE COURT SAW. I'LL ALSO SAY THIS IS NOT A BRIGHT LINE
RULE THE POLICE CAN'T PROTECT THEMSELVES. RIGHT NOW WE HAVE A BRIGHT LINE RULE, YOU CAN
ENTER THE HOME EVEN AFTER YOU CONDUCT AN ARREST OUTSIDE A HOME, IF THERE'S PROBABLE CAUSE
AND EXIGENCY OR MAYBE A DIFFERENT INTERPRETATION OF THE EMERGENCY DOCK TRIFRNT THE STATE ALSO
WANTS A BRIGHT LINE RULE IN SOEFRPS THE CONSTITUTIONAL STANDARD FOR ENTRY THAT TAKES
FACTS AND THE TOTALITY OF THE 6 SOCIAL SECURITY A RIGHT LINE RULE. ARE THE BRIGHT LINE
RULE THEY WANTS IS THAT THERE'S SAS R REASONABLE AND ARTICULABLE SUSPICION AFTER YOU HAVE
AN ARREST, YOU CAN AND TER THE HOME MUCH. JUSTICE PATTERSON: THE STANDARD
THAT TAKES INTO ACCOUNT THE TOTALITY OF THE 6S AND REQUIRES BALANCING AS A BRIGHT LINE
RULE? TAMAR Y. LERER: NO, THAT'S MY POINT BOTH EXIGENCY AND REASONABLE AND
ARTICULABLE SUSPICION DO EXACTLY THAT. SO INSOFAR AS EXIGENCY IS BEING PORTRAYED TATSDZ
A IET LINE RULE IT'S NOT MORE OR LESS,. JUSTICE PATTERSON: WHAT IS THE BRIGHT
LINE RULE THE STATE IS SEEKING. TAMAR Y. LERER: IF YOU CONDUCT AN ARREST
JUT SIDE THE HOME AND THERE'S REASONABLE AND ARTICULABLE SUSPICION SOMEONE IS AND SIDE
AND PREVENTS PRESENTS A DAN JESHGS YOU CAN ENTER PT THE BRIGHT LINE RULE IF YOU WANT TO
FRAME THINGS THAT WAY I AM SEEKING IS IF YOU CONDUCT AN ARREST OUTSIDE OF A HOME AND HAVE
PROBABLE CAUSE AND EXIGENCY, YOU CAN ENTER MENT THE NEITHER OF THOSE IS A BRIGHT LINE
VUL MY POINT BUT THE FRAMING OF PROBABLE CAUSE AS SOME SORT OF THE BRIGHT LINE WHEN REASONABLE
SUSPICION ISN'T, IT IS DOESN'T MAKE ANY SNS. THEY'RE BOTH DOCTRINES. JUSTICE
PATTERSON: TELL ME PLEA IN I'M WRONG, YOU'RE TAKING A BRIGHT LINE RULE THAT REASONABLE
SUSPICION IS NOT ENOUGH TO CROSS THE THRESHOLD INTO THE HOME AND THAT REASONABLE SUSPICION
IS ONLY SUFFICIENT IF THE ARREST TAKES PLAY IN THE HOME TAL TAM. JUSTICE
PATTERSON: THAT'S YOUR POSITION, BOW SO WHY IS THAT NOT A BRIE LIGHT LINE.
TAMAR Y. LERER: REASONABLE SUS PIPGS IS ENOUGH IF YOU CONDUCT AN ARREST OUTSIDE THE HOME.
THESE ARE ALL RULES, THERE ARE ALL RULES AND NOTHING, BOTH RULES TAKE INTO ACCOUNT THE
TOTALITY OF THE CIRCUMSTANCES. THEY BOTH TAKE INTO ACCOUNT THE POSITION, HE IS EXIGENCY
S HOW CLOSE OR HOW FAR YOU ARE FROM THE HOME, NEB BRASS 62 WHO AGREE WITH US TUKING ABOUT
GUNSHOT RANGE, TALK ABOUT CONFEDERATES, THE TRAILER NEXT DOOR, YOU KNOW, THESE ARE ALL
INCREDIBLY FACT BASED QUESTIONS THAT CAN BE ANSWERED WITH THE EXIGENCY DOCTRINE WHICH
BY THE WAY, THE PLEADS APPLY EVERY DAY TO ENTER, ENTER HOMES TO CROSS THAT THRESHOLD,
THEY'VE NEVER APPLY THE RARS REASONABLE AND ARTICULABLE SUSPICION TEST TO AND TEFR THE
HOME, THIS THE TESTIFY THEY KNOW, THIS THE TEST THEY KNOW AND ABSENT ANY EVIDENCE IT'S
NOT WORKING -- JUSTICE ALBIN: YOUR POSITION IS THE POLICE WOULD HAVE TO
HAVE AN OKTS TIFRLY REASONABLE BASIS TO BELIEVE THAT SOMEONE WAS ABOUT TO LAUNCH AN ATTACK.
TAMAR Y. LERER: YES. JUSTICE ALBIN: ON THAT BASIS THEY WOULD BE
AEBL TO ENTER THE HOME. TAMAR Y. LERER: YES. JUSTICE ALBIN:
BUT YOU FIND THE REASONABLE AND ARTICULABLE SUSPICION IS 2 DIMINISH A STANDARD TO WARRANT
AN ENTRY. TAMAR Y. LERER: THAT'S A VERY NICE SUMMARY, MAYBE NICE IS A WRONG
WORD, OF MY POSITION. AND I HAVE NOW FORGOTTEN ALL OF THE THINGS. CHIEF
JUSTICE RABNER: CAN I ASK YOU A DIFFERENT QUESTION AND GIVER I WAS CHANCE TO REMEMBER.
TAMAR Y. LERER: THE APP. DIV. AT PAGE 15 SAYS THAT BEING APPREHENDED ON
THE PORCH CONDUCT CONNECTED TO THE TRAILER WAS ARGUABLY BEING APPREHENDED ON PAR OF THE
RESIDENCE, WOULD YOU CARE TO RESPONSE TO THAT? TAMAR Y. LERER: I DIDN'T
NEED THE OPINION FOR THAT. YES THAT THINGS ARE BACK TO FIRST OF ALL PAT TON THE UNAM
BIGUOUS DI MENGS, PAT TON THE WORD THRESHOLD, AGAIN AND AGAIN AND AGAIN. BUIE THAT SAID
THAT THE POLICE WERE LAWFULLY IN THE HOME WITH THE WARRANT 10 TIMES IN THE OPINION, THIS
BRINGS ME BACK TO THE IMPORTANCE OF THAT THRESHOLD AGAIN AND AGAIN EN AGAIN.
BUT ALSO WHAT THIS CASE SNED VAR GAS AND BROWN AND WRITE, THEY WERE ALL SUPPOSED TO BE
LESSER INTRUSIONS, WE'RE JUST GOING TO SEE WHAT THE LARD LORD SAW, WE'RE JUST GOING TO
SECURE AND THIS COURT SAID, WELL, QUOTING THE SUPREME COURT OF THE UNITED STATES SAID
IN THE HOME ALL DETAILS ARE INTI IN IT DETAILS, QUOTE, CAN I LOW, THERE'S THE ENTRY IS
SUCH A CONSTITUTIONALLY SIGNIFICANT AND THEY SEE EVERYTHING AND TO JUSTICE LA VECCHIA'S
POINT I JUST WANT TO TAUBLG FOR A SECOND ABOUT HOW EXTENSIVE A PROTECTIVE SWEEP SWEEP
PUT ASIDE ENTER THE HOME, CLASS SETS, ALL BEDROOMS, UNDER THE BED, IN THE SHOWER, IN
THE BATH, NTS ATTIC, IN THE BASEMENT, WE'RE TALKING UNDER THE PILLOWS, YOU KNOW, UPTSDZ
THE BLANKET, WE'RE TALKING ABOUT THE WHOLE HOME. JUSTICE SOLOMON: ARE YOU
ASKING US TO OBVIATE THE NOTION OF THE PROTECTIVE SWEEP? TAMAR Y. LERER:
SLIGHTLY NOT. JUSTICE SOLOMON: OKAY. I THOUGHT THAT'S WHAT YOU WERE SAYING.
TAMAR Y. LERER: I'M SAYING IT'S A HIGH INTRUSION, IT'S NOT A LOW INTRUSION.
JUSTICE SOLOMON: PICKING UP WITH SOMETHING JUSTICE ALBIN WAS ASKING, YOU
GO UP TO THE FRONT DOOR, THE DEFENDANT STEPS OVER THE THRESHOLD, YOU ARREST HIM, YOU CAN'T
NOW ENTER THE HOME. TAMAR Y. LERER: UNLESS THERE'S EXIGENCY.
JUSTICE SOLOMON: WHAT IS THAT EXIGENCY IF YOUR MIND. TAMAR Y. LERER: IN THIS
CASE THERE ISN'T ONE. JUSTICE SOLOMON: THTHS NOT WHAT I'M ASKING, WHAT IS
THAT EXIGENCY, IN OTHER WORDS -- GO AHEAD. TAMAR Y. LERER: I THINK THE
STANDARD FOR REASONABLE ASS IN REASONABLE AND ARTICULABLE SUSPICION. JUSTICE
SOLOMON: STHTS EX SFEN JEN SEE, TAKE THAT IDEA SOMEONE HAS TO BE IN THE HOME AND PRESENT
A DANGER AND IT HAS TO BE WELL GROUNDED. IT'S PROBABLE CAUSE, IT'S JUST A LITTLE,.
JUSTICE SOLOMON: WELL GROUNDED BELIEF. TAMAR Y. LERER: YEAH.
JUSTICE SOLOMON: NOT ACTUALLY SEEING SOMEONE PEERG OUT A DOOR AND THE MUSCLE OF THE GUN
TAKING STICKING OUT. TAMAR Y. LERER: NO, PROBLEM CAUSE ISN'T THAT HIGH.
VOL SOL I WAS JUST ASKING. TAMAR Y. LERER: I THINK I SAID BEFORE MAYBE
IT GOT STUCK IN MY HEAD, TOO MY CHAGRIN IT'S NOT THAT HIGH, I WISH IT WAS HIGHER BUT I'M
TOLD AGAIN AND AGAIN IT'S NOT THAT HIGH OF A BURDEN, RIGHT, AND I'M ALSO TOLD WE DO NOT
LOOK THROUGH THE DISSTORTDED PRISM OF HIEPD SITE IN THESE KIND OF SITUATION, AN DRECHZ
AMOUNT OF DEFERENCE COULD BE BLICH TO A POLICE OFFICER TRULY BELIEVE THE THERE WAS EXIGENT
CIRCUMSTANCES, BEIGE OTHER THAN THE FACT THEY KNEW BEFORE THEY CAME AND THE ON SIGHT,
AUDITOR AND ORAL AND OTHER CONVERSATION OBSERVATIONS AND THE THING I WAS REMEMBER I
WAS GOING TO SIGH IS THEY CAN'T CREATES THAT EXIGENCY WHICH IS SOMETHING IN DEVILLE LA
THIS COURT FORESAW. SO WE HAVE THIS IDEA OF WHAT ARE THEY DO DO, WHAT ARE THEY TO DPO.
THEY CAN INCOME A LOOK IN WINDOWS ANY GUEST COULD ANSWER, HANG BACK K SECURE THE PERIMETER
K WAIT FOR BACKUP. THEY COULD MOVE THE PERSON. JUSTICE ALBIN: IN YOUR
CASE, YOUR CASE IS TSDZ GUY IS IN FLIGHT FROM THE TRAILER AND IS BASICALLY TACKLED ON
THE PORCH IMMEDIATE TL OUTSIDE THE DOOR WITH A DOOR OPEN AND THE POLICE KNOW FROM MINUTES
EARLIER SPEAKING TO THE SOMEONE, THEY SAID THAT FULLER WAS WITH SOMEONE ELSE AND BE CAREFUL.
TAMAR Y. LERER: YEAH. JUSTICE ALBIN: LET ME FIRST ASK YOU
BECAUSE YOU'RE SAYING IT SHOULD BE A HIGHER, DOES THEY HAVE AN OBJECTIVELY REASONABLE
BASIS TO BELIEVE THAT THEY WERE EN DAN INJURED. TAMAR Y. LERER: NO. DO YOU WANT
-- YOU SAID HAD YOU A SECOND PART. JUSTICE ALBIN: THERE IS NO SECOND PART
AFTER THAT, IF YOU SAID YES, WE WOULD HAVE STEPPED DOWN TO THE REASONABLE AND
ARTICULABLE SUSPICION. TAMAR Y. LERER: I'D LIKE TO SPRATS 2 PARTS OF THIS
KIND OF QUESTION EMBEDDED. THE FIRST IS HOW THEY GOT HERE. THEY DIDN'T HAVE TO GO TO
FULLER'S, TERRES'S HOME TO AR RESTS FULLER. THEY SHOWED UP 2 DAYS AFRTS WASH REPUBLIC
FIRST ISSUE, DIDN'T WORK OUT, CAME THE NKS DAY, CAME WITH ONLY FOUR PEOPLE, THEY DECIDED
TO BARGE INTO SMUNS ELSE'S HOME, AR RETS TWO PEOPLE AND LEAVE 2 OFFICERS BEHIND AND
THEREFORE GO SUPPOSEDLY SHORTHANDED, THEY DIDN'T HAVE TO MAKE THE SERIES OF DECISIONS THAT
BROUGHT THEM TO TERRES'S DOOR AT THAT MOMENT. SO I DO WANT T START WITH THAT, WE CAN START
AT THE HOME, RIGHT, WE HAVE TO START BEFORE. SECOND OF ALL, ALL WE HAVE
IN THIS CASE IS AN UNKROB CRATESED, UNINVESTIGATED VAGUE WARNING THAT THEY DIDN'T
EVEN FOLLOW UP ON SAYING HEY, WHAT DO YOU MEAN, RIGHT, WHY SHOULD I BE FAIR FULL, WHO DO YOU
THINK IS BACK THERE, I'M SORRY, FERNG FERN NTS SPROES OF AN ARREST, SOMEONE TELLS YOU TO
BE CAREFUL AND YOU SHOULD SAY WHY SHOULD I BE CAREFUL, WHAT IS THE THREAT TAM YEAH, SURE.
FERN FRN WOULD IT BE MORE AVENUE THREAT IF IT WAS DARK OUT, THAT'S THE KIND OF INQUIRY
YOU'RE TALKING BO WHEN SOMEONE SAYS BE CAREFUL. TAMAR Y. LERER: WHAT DO
YOU MEAN. FERN FRN CAREFUL IS, I THINK THOT THAT SMART AND I KNOW WOO IT MEANS.
TAMAR Y. LERER: BASIS OF NOVRNGS THIS IS THING THIS COURTS TALKS ABOUT OEFRN OVER AND
OVER AGAIN. PALM. JUSTICE PATTERSON: THEY'RE HEARING THIS FROM SOMEONE
WHO IS LIVES THERE. SOMEONE WHO IS CLEARLY FAMILIAR WITH THE JICH JICH WUL'S INVOLVE
AND THAT PERSON SAYS TO THEM BE FAIR FULL, THERE'S 2 MALES THERE, BE CAREFUL. SO YOU'RE
SAYING THEY SHOULD STOP EVERYTHING, WHY ARE YOU TELLING US TO BE CAREFUL. TAMAR
Y. LERER: AFTER THEY ENTER THIS FIRST HOME AND THEY WERE IN THE MILLION OF WARRANTLESS
OF THE ARRESTS OF PEOPLE IN THE HOME THEY ENTERED WITHOUT A WARRANT, TO SAY THAT THEY
COULDN'T TAKE A MOMENT WHILE PROCESSING THEM AND THE RUNNING NN ARRESTING THESE PEOPLE
WAS UNEXPECT THE, IT WASN'T NTS TIME BUDGET THEY HAD, TO SAY IT WAS NOT, IT WOULD NOT
BE GOOD INVESTIGATIVE TECHNIQUES TO SAY WHY DO YOU SAY THAT, I THINK IT'S PRETTY FUBD
MENTAL INVESTIGATIVE TECHNIQUE -- WE DO WITH AL INFORMANTS TO ASSESS IF YOU NEED NO KNOCK
WARREN. JUSTICE ALBIN: YOU'RE RIGHT ABOUT THAT, THEY COULD HAVE ASKED A
COUPLE OF MORE QUESTIONS, THEY WOULD HAVE BEEN BETTER MAYBE FOREWARNED BUT THEY DIDN'T.
THEY HAD THE INFORMATION THAT THEY HAD AND THAT WAS BE CAREFUL. AND THAT WAS SUGGESTING
THAT THE OTHER PERSON COULD REALLY POSE A PROBLEM TO THEM. WOULD YOU ADMIT THAT?
TAMAR Y. LERER: NO. JUSTICE ALBIN: OKAY. TAMAR Y. LERER:
PUT. JUSTICE ALBIN: WHAT DO YOU THINK BE CAREFUL MEAN. TAMAR Y.
LERER: IT COULD BE SOMEONE SAY TO MREECHZ BE KAFR FULL OUT THERE. JUSTICE ALBIN:
YOU THINK THE COULD BE KWIFRL LEAPT OF HAVE A GOOD DAY. TAMAR Y. LERER:
SURE, I DON'T KNOW WHAT THIS PERSON DID WHAT THEY DID AFTER THE POLICE BARGED INTO THE
ROOM AND WARRANTS WR REPRESENT CONSENTS OR EXIGENCY, WHO KNOWS. JUSTICE
PIERRE-LOUIS: THEY DIDN'T ASK HEE THE ON THE PERCENT JUSTICE PATD AND SOMEONE WHO LIFRS
IN THE COMMUNITY, HE SAYS THERE'S 2 MALES BACK THERES AND THEY DON'T EVEN ASK WHO IS OTHER
ONE OR ANYTHING. I THINK THAT'S WHAT THE POINT YOUSH TRYING TO MAKE. JUSTICE ALBIN SAID
THEY DIDN'T ASK SO WE ARE WITH THE FACTS. TAMAR Y. LERER: WHO HAS BEEN
ARRESTED, THAT WOULDN'T A REASONABLE ASSUMPTION BUT MY CLIENT IS ALREADY LOCKED UP. SO
I OOM GOING MOVE AWAY FROM WHAT THEY COULD HAVE DONE JUST TO SAY I DON'T THINK IT'S MUCH
TO SUGGEST THAT POLICE SHOULD ASK QUESTIONS OF PEOPLE GIVING THEM INFORMATION WHEN THERE
AREN'T CIRCUMSTANCES THAT PREVENTS THEM FROM DOING THAT. BUT, OKAY, FINE, WE GET TO THE
TRAILER. WHAT WE SEE IN THE TRAILER COULDN'T TR DIKTS THE WARNING THAT THEY'RE
GIVEN AND THAT THEY LOOK INSIDE, THEY SEE A WOMAN HOLDING A BABY AND FULLER. WHEN THE
WOMAN IS ASKED, SHE SAYS THERE'S NO 1 ELSE IN HERE. THEY DON'T HAVE TO TAKE HER AT HER
WORD. BUT TO SAY WELL, WE DIDN'T SEE ANYTHING ELSE THAT CONTRADICTED HER WORD, WHAT WE
SAW SUGGESTED IT'S JUST HER, BUT WE'RE STILL NOT SURE. WE'RE SETTING UP HIS IMPOSSIBLE
STANDARD TO DISPEL SUSPICION AND WE CAN'T FOR GET THE UNDERLYING THINGS HERE.
JUSTICE ALBIN: IT'S MRS. TERRES WHOSE HUSBAND IS UNDER ARREST AND THEY'RE ABOUT TO ARREST
FULLER. TAMAR Y. LERER: I'M NOT SURE -- THE MRS. TERRES IN THIS CASE IS
ACTUAL THE SISTER. I DON'T KNOW WHAT HER RELATIONSHIP IS TO FULLER. BUT SHE'S A WOMAN
WITH A BABY WHO I'M ASSUMING WOULD LIKE TO AVOID ANY MORE VIOLENCE AS A WOMAN WITH A BABY
I WOULD SUGGEST THAT THE FIRST THING I WOULD THINK WHEN THE POLICE ARE NEAR MY HOME IS
ITCH TO DO WHATEVER I NEED DO TO KEEP THE SITUATION HARM AND SAFE FOR MY CHILD AND
THERE'S NOTHING ON SCENE THAT SUGGESTS ANYTHING OTHER THAN WHAT SHE'S SAYING. AND FULLER,
THIS FUGITIVE, IS WANTED FOR VIOLATING PRETRIAL RELEASE FOR THIRD-DEGRE THEFT. WE'RE
TALKING K ABOUT THE FACT THAT THAT WOULD LEAD US TO EXIGENCY, A HAVE I LENGTHS CRIME MIGHT
GET US THERE, YOU KNOW, THEFT, IT'S A THIRD-DEGREE THEFT CASE. SO TO IMPUTE FROM
THESE -- JUSTICE ALBIN: CAN I GO BACK TO AN A QUESTION EEJ YOU ANSWERED BUT
I THINK IT'S INTERESTING, THEY SAW, HAD HE NOT TAKEN FLIGHT, WHEN HE WAS ORDERED TO HIT
THE GROUND INSIDE THE TRAILER, COULD THEY HAVE GOT NN ARRESTED HIM? TAMAR Y.
LERER: PROBABLY. I'M GLAD YOU ASKED THAT QUESTION BECAUSE I WAS PREPARING FOR THIS
ONE. IN LANE V CALIFORNIA, THE MOST RECENT SUPREME COURT UNITED STATES ABOUT EXIGENCY
CASE ABOUT EXIGENCY, WHAT JUSTICE SO TOE MAY YEAH SAID LISTEN MIENTS PERCENT OF THE TIME
A DESIRE TO GET A FLEEING IS GOING TO GET YOU EXIGENCY WHO THE HOME, AND IT'S PORPTS TO
HER THAT SHE DELINEATES THAT. THIS IS A FELONY, NOT A MISDEMEANOR BUT UNDERLYING THEFT
IT'S PROBABLY JEKS JEN SEE, WE HAVE TO DO A BALANCING TFT BUT MAYBE. I'M NOT CONCEDING
IT IS? TO BE CLEAR WE HAVE TO DO A BALANCING TEST AND THIS ISN'T WHAT HAPPENED, BUT,
YOU KNOW, LIKELY BUT THE OTHER THING SHE SAID IT WOULD DISPLAY A SHOCKING LACK OF ALL
SENTENCE OF PROPORTION TO SAY THE PRIVATE HOMES EVEN QUARTERS IN A 10 MENTS OR TRAILER
PARK, THAT WAS ME, NOT HER, MAYBE INDISKRIM NAN THE AT THE ANY SUSPICIOUS POLICE OFFICER
ENGAGED IN FOLLOWING UP A OH FELONIES THAT INVOLVED NO VIOLENCE OR THREATS OF IT. THAT
FEELS PRETTY EARLY SIMILAR TO ME IT'S EXIGENCY AND PROBABLE CAUSE. RACK RAB THITHS CONCERNS
ME ABOUT THE FACTS I'D LUKE YOU TO ADDRESS THE DIRECT. I THINK LOOKING AT PAT PETROSKY'S
TESTIMONY AND HE SAYS LOOKS THROUGH THE WINDOW, SEES THE FUGITIVE STANDING THERE TALKING
TO A FEMALE, YELL, I ORDER HIM TO THE GROUND, TELL HIM TO GET ON THE GROUND, HE'S UNDER
ARREST, HE LOOK AT ME AND JUST TURNS TO THE RIGHT AND RUNS STRAIGHT OUT THE DOOR.
WHAT CAN THE OFFICER REASONABLY INFER FROM THE DEFENDANT'S CONDUCT? TAMAR Y.
LERER: THAT HE DOESN'T WANTS TO BE ARREST, RIGHT RAB RASH KW HE ALSO AND FER I DOESN'T
WANTS HIM TO COME INTO THE HOUSE AND THAT'S WHY HE'S RUNS OUT, IS THAT UNREASONABLE.
TAMAR Y. LERER: IT DOESN'T SEEM REASONABLE TO MEESHGS I UNDERSTAND REASONABLE
MINDS CONTAIN MULTITUDES BUT, NO, AND ALSO AS A PERSON WHO WOULDN'T WANT POLICE OFFICERS
IN MY HOUSE WITHOUT AN EXIGENCY WARRANT OR COULD BE SENT, THAT FEELS REASONABLE TO ME
JUST BECAUSE IT'S MY HOUSE AND IT'S MY PRIVATE HOUSE. CHIEF JUSTICE RABNER:
TO RUN OUT SEEMS REASONABLE? AS YOU SEE IT? TAMAR Y. LERER: I WOULD ASSUME
THIS PERSON PANICKED AND DIDN'T WANT TO BE ARRESTED, I THINK THAT'S A FAIR ASSUMPTION
BUT WHEN THE BURDEN IS ON THE STATE, I DON'T KNOW HOW MUCH WE CAN SPECULATE ABOUT SOMEONE'S
STATE OF MIND WHICH IS EXACTLY WHAT THE STATE IS ASKING US NOT TO DO IN TERMS OF CONFEDERATES.
THE. JUSTICE LA VECCHIA: WHY ISN'T EVIDENCE ANOTHER CRIME BEING COMMITTED
IN THE PRESENCE OF THE OFFICER. TAMAR Y. LERER: HE WAS ALLUDING, HINDERING
APPREHENSION AND IF HE HADN'T GOT MADE THE OUTSIDE BEFORE HE GOT ARRESTED THAB THAT
WOULD BE AN EXIGENCY TO LETS THEM IN H. JUSTICE LA VECCHIA: WHAT IS THE PROBABLE
CAUSE ANALYSIS ACTUALLY WORK, I KNOW WEAVE SAYING IT A NUMBER OF TIMES AND YOU'RE SUGGESTING
IT AS THE HIGHER STANDARD TO THE REASONABLE AND ARTICULABLE SUSPICION BUT JUST PAUK ME
THROUGH HOW YOU WOULD ENVISION IT BEING APPLIED. TAMAR Y. LERER: WELL SO
I THINK THAT, YOU KNOW, WE HAVE BRYANT, COPE AND MOORE, THE KIND OF LAYOUT, THE PARAMETERS.
SO IN THE ONE THAT I THINK IS NOT COPE, I'M APOLOGIZING, THEY ARRESTED SOMEONE INSIDE
AND HRPT THERE WAS A WEAPONS OFFENSE, RIGHT, SO THE FEAR THERE, THEY HEARD OTHER NOISES,
THE WOMAN HAD ANSD THE DOOR AND I THINK LIED ABOUT IF THE POLICE OFFICERS -- VEK
HEMMINGWAY. JUSTICE ALBIN: THAT MY BE COPE. TAMAR Y. LERER:
I'M SO SORRY. SAL AL IT WAS COPE. TAMAR Y. LERER: THAT CASE WAS A GOOD
ONE, THERE WAS NUR GENTLEMEN'SNESS, IT WAS A WEAPONS OFFENSE. VEK VK THEY'RE K LOOK FOR
A HIGHER PROOF STANDARD OF DANGEROUSNESS. IS THAT WHAT IT IS? TAMAR Y.
LERER: OF DANGEROUSNESS OR OFFENSE, WHEN WE TALK ABOUT FULLER RUNNING OR NOT RUNNING AN
OFFENSE. VEK VK ANOTHER CRIMINAL ACTIVITY. TAMAR Y. LERER: THE EXIGENCY
IS THAT SOMETHING IS HAPPENING THAT PREVENTS FROM YOU GETTING A WARRANT THAT PRESENTS
THIS DANGER IS PROBABLE CAUSE IS THE STANDARD OF BELIEF OF THAT WHICH IS MUCH LESS THAN
MORE LIKELY THAN NOT IS MY UNDERSTANDING IT'S A LOW STANDARD, A LOESHGS WELL TRODDEN STANDARD
AND BRIENTD IS THE ONE I HAD WRITTEN DOWN BECAUSE I LIKED THIS QUOTE BUT I THINK IT WAS
WRITE IT WAS COPE I'M TALKING ABOUT THE OTHER CASE, BRYANT THIS COURT SETD INHERENT DANGER
IS DOMESTIC VIOLENCE CASES WHICH WE ADMIT ARE VOLATILE AND "THE INCOMPLETE KNOWLEDGE OF
POTENTIAL DANGER" IS NOT ENOUGH. WE JUST NEED SOME FACTS THAT GET TO PROBABLE CAUSE.
JUSTICE LA VECCHIA: ARE YOU FAMILIAR WIT EXAMPLES THAT ARE GIVEN IN
PROFESSOR LA TRAY OS TREATISE ON WHAT WOULD MEET PROOF OF, HE SAYS REASONABLE AND ARTICULABLE
SUSPICION, BUT THEY SOUND TO ME LIKE THEY ARE CLOSER TO THE PROBABLE CAUSE STANDARD THAT
YOU ARE SUGGESTING. TAMAR Y. LERER: I THINK THAT WHEN WE, BECAUSE THEY
ALL REST ON AL FAN SO WHICH IS A PROBABLE CAUSE KASHGS, I THINK WHEN YOU LOOK ATS AUMENTS
ALL OF THESE FACTS AND THESE OTHER NONPRESIDENTIAL COURTS WITH CONSTITUTIONS AND
HOURS, A LOT OF THEM RFRN JUST EXIGENCY AND PROBABLE CAUSE. VEK VK HIS EXAMPLES AREN'T
DRAWN IN THE FEDERAL CASES AND HE'S EMPHASIZING FACTS WHICH REALLY ARE QUITE HIGH IN THE
SUGGESTION IN THE PER SECHGS DAEN JER. TAMAR Y. LERER: I AGREE AND THAT,
THIS CASE, YOU KNOW, I THINK WHAT WE HAVE IS MOSTLY KIND OF INNUENDO AND INCOMPLETE
KNOWLEDGE BUT WE LOOK AT THE EXIGENCY CASES AND NOT JUST THESE OTHER CIRCUITS AND THE
PROTECTIVE -- JUSTICE LA VECCHIA: ARE WE TALKING SEMANTICS HERE, HE RARE
YOU SUGGEST THE STANDARDS WOULD NEAT THE PROBABLE CAUSE STANDARD AND THAT WOULD ALLOW
ENTRY INTO THE HOUSE, YOU ARE NOT SO WETTED TO A BRIGHT LINE STAND ARE TODAY OF NEVER
ENTERING THE HOME FRP IT SOUND LIKE YOU'RE WILLING TO ACKNOWLEDGE THAT THERE ARE
CIRCUMSTANCES WHERE ARRESTS ARE MADE OUTSIDE THAT JUST SIDE ENTERING INTO THE HOME.
TAMAR Y. LERER: TONS, WHAT WOULD SEND ME RUNNING TO MY SECOND SKOET TUS SERT PETITION
IS A BRIGHT LINE RULE THAT SAYS THE FACT OF AN ARREST OUTSIDE A HOME LOWERS THE
CONSTITUTIONAL NULL STANDARD FOR ENTRY. THAT IS THE BITE LINE RULE I FEAR. THE IDEA THE
POLICE OFFICERS MADE VERY OFTEN EVEN PERHAPS ENTER HOMES BECAUSE OF DANGER IS PRESENT
ED TO THEM AND THERE'S A PROBABLE CAUSE, THERE'S A WELL GROUNDED SUSPICION THAT THAT DANGER
EXISTSES AND THAT THE FACT OF ARREST IS THAT DAN JER AND THE OPEN DOOR IS A FACTOR THAT'S
I HAD TIED TO THAT, YEAH, OF COURSE. CHIEF JUSTICE RABNER: YOU ARE ASKING
FOR A BRIGHT LINE RULE WITH RESPECT TO PRO TEKTD TIFF SEARCHES AND THE STARRED TODAY.
TAMAR Y. LERER: I WOULD ARGUE THEY'RE ASKING TORE BRIGHT LINE RULE.
JUSTICE PATTERSON: YOU'RE SAYING THE PROTECTIVE SWEEP SWEEP DOCTRINE WHICH IS
GROUNDED IN A REASONABLE SUSPICION SHOULD NOT APPLY AS LONG AS THE ARREST IS OUTSIDE THE
THRESHOLD EVEN IF IT'S A FOOT AWAY, EVEN IF THE SITUATION IS IN FLUX AS IT WAS IN THE
TERRES CASE WITH YOUR CLIENT RUNNING JOUTSED DOOR, YOU'RE SAYING THE. TAMAR
Y. LERER: THE PERSON IN THE HOUSE. JUSTICE PATTERSON: THE FULLER RUNNING
DO YOU THE DOOR I APOLOGIZE I SMIS SPOKE, YOU'RE SAYING THE PROTECTIVE-SWEEP DOCTRINE
STOPS AT THE DOOR. TAMAR Y. LERER: DOES NOT ALLOW ENTRY. VEK UNLESS IT
USERS A HIGHER STANDARD. TAMAR Y. LERER: EXIGENCY. JUSTICE
ALBIN: YOU'RE USING PROBABLE CAUSE, BUT YOU'RE COULDN'T TEPTS WITH THE OBJECTIVE REASONABLE
NEGS STANDARD WHICH APPLIES AT THAT CLEE TO EMERGENCY AID AND PUBLIC SAFETY.
TAMAR Y. LERER: THE POLICE COULD ABSOLUTELY ENTER UPD THE STANDARD. JUSTICE ALBIN:
YOU'RE JUST ARGUE, I SHOULDN'T SAY ARGUE, YOU'RE ARGUING WHEN JURY OUTI'D THE HOME IT'S
THE STANDARDS A COUPLE OF NOTCHES UP. TAM THE BEST CASE I THINK ABOUT THE DIFFERENCE
BETWEEN REASONABLE SUSPICION AND PROBABLE CAUSE IS PIN NAER ROW, IT'S A DIFFERENT P I
N -- IT'S A DIFRTS CONTEXT BUT THEY IDEA WAS PASSING THE CIGARETTES BACK AND FORTH IS
RS REASONABLE SUSPICIONLY A CRIME BUT IT DIDN'T GET TO YOU PROBABLE CAUSE, IT'S A SNITCH
AND THN THERE WAS THE COMPANION CASE THIS NAME I CAN'T REMEMBER DID GET TO THE PROBLEM
CAUSE. WE'RE TALKING K A LITTLE BIT. BUT TO ENTER THE HOME THAT LITTLE BIT HAS ALWAYS
BEEN THE STARRED DARD, ALWAYS. CHIEF JUSTICE RABNER: WE WANT TO GIVE AND
TELL ME IF YOU DISAGREE, WANT TO GIVE OFFICERS CLEAR GUIDANCE ON WHAT THEY MAY AND MAY
NOT DO. IS IT SENSIBLE THEN TO COME UP WITH THREE TIERS, REASONABLE SUSPICION S OBJECTIVE
REASONABLENESS, PROBABLE CAUSE AND COUNTS ON OFFICERS TO MAKE THE NUANCE DISTINCTIONS
BETWEEN THEM? TAMAR Y. LERER: I THINK THE BEAUTY OF WHAT I'M ASKING YOU
FOR IS THAT IT'S THE LAW THAT EXISTED YESTERDAY. OFFICERS CANNOT ENTER A HOME ABSENT
CONSENT OR A WARRANT WITHOUT EXIGENCY AND PROBABLE CAUSE AND WHAT THIS COURT SAYS IN
VAR GAS WHEN IT KIND OF UNTANK GULLS OUR EXIGENCY DOCTRINE IS THAT EMERGENCY AIDE IS A
SPECIES OF EXIGENCY. SO I DON'T THINK THERE'S THREE PEERS ANY MORE THAN RIGHT NOW, THERE'S
ALREADY TWO TIERS BUT THERE'S ACTUALLY JUST ONE, VIEJ VAR GAS MADE VERY CLEAR BECAUSE
MREFRN SEE AID IS A SUBSET OF EXIGENCY, THE STANDARD IS DIFFERENT IN THAT WE HAVE A
DIFFERENT CONCERN, RIGHT, IT'S SAFETY AND NOT DESTRUCTION OF EVIDENCE BUT IT COMES FROM THE
SAME PLACE. I THINK THAT'S THE BEAUTY OF VAR GAS IS IT SAYS HE WE'RE LOOKING AT ALL OF
THIS CASE LAW AND IT'S NOT FREE FLEET FWRG EXIGENCY. JUSTICE PATTERSON:
THE STANDARD SHOULD RISE AT THE THRESHOLD OF DOOR NO MATTER WHAT THE CIRCUMSTANCES EVEN
THOUGH THE DAEN JER TO THE POLICE OFFICERS MAY BE SKABLTHS THE SAME A FOOT OUTSIDE SORE
A FOOT INSIDE? TAMAR Y. LERER: YES. JUSTICE PATTERSON: PORCH,
PORCH, INSIDE OF THE HOME, 2 DIFFERENT STANDARD APPLY, NO MATTER WHETHER THE DANGER IS
THE SAME TO THE OFFICER IN BOTH PLACES. TAMAR Y. LERER: THE STANDARD WITH
A KNOCK AND TALK, YOU HAVE REASONABLE SUSPICION, YOU CAN'T ENTER SMUNS HOUSE, YOU THINK
THERE'S SOMETHING GOING ON, YOU COME TO THE DOSHGS YOU KNOCK ONTS DOOR IF THE THING THAT
HAPPENS BEHIND THE DOOR NO,S GETS TO YOU EXIGENCY AND POSSIBLE CAUSE, YOU GO IN. OTHERWISE
MAYBE WE'RE AT REASON AN SUSZ SPIGS, SOMETHING IS GOING ON, THIS FEELS DANGEROUS TERRITORY
WHEN THE POLICE COME TO DO THEIR KNOCK AND TALK, BUT THAT DOESN'T MEAN THEY CAN ENTER,
IT'S THE RULE TODAY. AND TO SAY THAT THIS IS GOING TO HINGE ON THE AN AR ROAR REST BEING
NEARBY AS OPPOSED TO THE OFFICER PRESENCE ANYWHERE NEAR THE HOME I THINK DOES NOT
FORESEE WHERE THIS IS GOING TO GO, IF YOU LOWER THE STANDARD FOR ENTRY NOOTS HOME. PATS
PAT IF MR. FULLER STAYED INWERE THE THRESHOLD AND NOT 1 OUT TO THE PORCH HE WOULD NOT
BE, YOUR CLIENT WOULD NOT BE THE BENEFICIARY OF THE ARGUMENT YOU'RE NOW MAKING.
TAMAR Y. LERER: HE WOULD BE A WORSE POSITION, THERE WOULD PROBABLY BE EXIGENCY, WE WOULD
HAVE TO WALKER, YOU KNOW, LANE. JUSTICE PATTERSON: MR. FULLER ATTEMPTED
ESCAPE MAKE THE DIFRTS IN THIS CASE TO YOUR CLIENT'S BENEFITS. TAMAR Y.
LERER: YEAH, WHAT MAKES A DIFFERENCE IS THAT HE WAS JOUTS I'D. HE WAS OUTSIDE A HOME
THAT THE POLICE AND I SAID I WOULDN'T BELIEVE THIS UNLESS SOMEONE WANTS TO TALK ABOUT
IT HAD NO RIGHT TO BE. AND THE IMPORTANCE OF CITY GULD IS THAT ARCH ARREST WARRANTS
PROTECTION THE PRIVACY OF THE ARRESTEE BUT IT DOES NOTHING FOR THE RESIDENTS, RIGHT, AND
THE INTRUSION OF ENTERING SOMEONE'S HOME EVEN IF YOU'RE JUST GOING TO ARREST SOMEONE IS
NOT SUFFICIENT PROTECTION FOR THE HOMEOWNER OR RESIDENTS, RIGHT? THEY DID NOT HAVE ANY
REASON TO BELIEVE THE FULLER LIVED IN MY KIEN'S HOUSE AND NOT A SINGLE COURT OF THE HIGHEST
COURT AND AGAIN I READ ALL OF THEM, HAS EVER SAID THE POLICE CAN ENTER A HOME THAT WEREN'T
JUST ALLOWED TO BE IN PREVIOUSLY BUT HAD THAT PERSON RUN OUT. I STILL DON'T THINK THAT'S
THE STAVENDZ DARD, I THINK THE THRESHOLD IS THE CONSTITUTIONAL STANDARD. BUT WHEN WE
TAKE THE STEP BACK HERE, THIS IS NOT A HOUSE THEY HAD LEGAL AUTHORIZATION TO ENTER. SO
THENTS PERSON WHO WAND THEY WANTED EXITS DZ SO THEY CAN ENTER. THAT'S NOT, NOTHING, IT
WORKED, EVERYTHING WORK. THAT WOULD BE THE BUT BEAUTY OF THE SITUATION HERE.
CHIEF JUSTICE RABNER: I DON'T KNOW THAT SAYING FULLER, SITS DZ A FAIR DESCRIPTION OF WHAT
HAPPENED HERE. TAMAR Y. LERER: FAST, YOU KNOW, HE TRIED TO ABSCOND BUT THE
POINT IS HE WAS STOPPED WAS OUTSIDE THE HOME, THE POLICE HAD NO RIGHT TO BE.
CHIEF JUSTICE RABNER: WE HAVE YOUR POSITION. JUSTICE SOLOMON: YOU'RE SAYING
IS NO PLEASE HAD A RIGHT TO, NOTWITHSTANDING THE RAILROAD AEFT WARRANT? TAMAR Y.
LERER: YES, BECAUSE UNDER SEE GULD AND PAT TON AND CLEVELAND AND MILLER WHICH I THINK
APPLIED THEM ZR WELL IN THE APPELLATE DIVISION, YOU HAVE TO TO BELIEVE THAT HE'S THERE
AND THAT HE RESIDES THERE. AND THERE WAS NO EVIDENCE THAT FULLER RESIDE THE ALT MR.
TEZ RER'S HOME. THERE'S NO EVIDENCE. I STILL DON'T HAVE ANY IDEA. I DON'T THINK HE DOES.
BUT THAT'S TERN CERTAINLY NOTHING IN THE RECORD THAT WOULD SUGGEST HE DID. FERN FRN YOU KNOW
HE'S THERE OR DON KNOW WE HAD HE RESIDES THERE NORT YOU HAVE FO RIGHT TO ENTER.
TAMAR Y. LERER: THAT'S SPEE BULL, THAT'S MILLER, THAT'S CLEVELAND, BECAUSE THE ARREST
WARRANTS DOES NOTHING TO PRO TECH THE HOMEOWNER'S PROOFT SEE ON THE RES DIDN'T'S PRIVATE
SEEN THAT'S WOI THE SEARCH WARRANT ARREST WARRANT LETS YOU ARREST THUN BUT UT DOESN'T
LET YOU ENTER THE HOME UNLESS YOU THINK IT'S THEY'RE HOME AND THAT'S THE STANDARD AND
CITY GOLD AND I THINK CLEVELAND AND MILLER DID A GRIT JOB APPLIES THOSE. JUSTICE
ALBIN: ANY ISSUE ABOUT THE SCOPE OF THE SEARCH? TAMAR Y. LERER: ORNT TE
MPORAL SCOPE NO ONE WAS INSIDE WHEN THEY CONDUCTED IT, BUT, NO. NOT THE CURSORY NACH CHEFRT.
CHIEF JUSTICE RABNER: ON THE KAY, ANYONE. WE'LL HAVE YOU BACK FOR REBUTTAL.
TAMAR Y. LERER: VERY THANK YOU, MR. GALLON LUM BA. DAVID M.
GALEMBA: OF THE FRPT MAY IT PLEASE THE COURT. AS IT IS DID IN DI LITTLE HAVE A THIS COURT
SHOULD NOT READ BU REAS BLACK LETTER LAW AND SHOULD LOOK AT THE NATIONAL TREND TO AND
APPLY THE BUIE STANDARD TO ARRESTS TAKING PLACE JUST OUTSIDE THE HOME, THI NOT A MATTER
OF FOLLOWING THE CROWD BUT WRATD BECAUSE OFFICERS FACING EQUAL DANGER JUST OUTSIDE THE
HOME WHILE PERFORM INHER EN RL DANGER? JUS TAKE MANY TAKE A PERSON INTO AR RFT JOUFT
SOUD IT THE HOME CAN TRIGGER A DANGEROUS ARREST HE IS CONFEDERATE WHO HAVE THE HOME FIELD
A, RAFSHG DARJ JUS 3RD MARRY LYING IN WAIT BEHIND THE FRONT DOOR A WINDOW VI ASD ADDS
VAN VFT KNOW THAT OF PLEASES FRENS THROUGH A OFFICER'S KNOCK OR SIMPLY LOOKING OU THE
WEREN'T DOUGH IS JUST AS GREAT A RISK AS TO OFFICERS ALREADY INSIDE. EVEN AFTER THE
ARRESTEE HAS BEEN HANDCUFFED, OFFICERS ARE STILL AT RISK OF AMBUSH WHILE THEY BACK SEARCH
THE DOOR. SO PORMG AN ARREST OUTJOU SITED TOMORROW OFFICER PERFORMING AN ARREST JOUFT
SIDE THE HOME VLS A SIGNIFICANT INTEREST IN I CAN TAG REASONABLE PRECAUTIONARY STEP TO
ENSURE THE DANGEROUS INDIVIDUALS ARE NOT INSIDE FRPT. THE POSITION TAKEN
BY THE DEFENDANTS AND ACCEPT DZ BY THE PANEL WOULD DRAW LIGHT BROIN AT THE DOOR HE CAN'T
TIFFLY EXCISING THE 4 ON UNREASONABLE SEFRPS, IF AK SEN DZ BY THIS COURT IT WOULD MEAN
NEW JERSEY OFFICERS WOULD BE AFFORDED LESS PROTECTION THAN THEIR COUNTERPARTS ACROSS THE
COUNTRY DURING WUFTS MORE POLICE CITIZENS CONFRONTATION THGS EXIST, AN AR RESTS ON A
ADVERSARY'S TIFSH. STATE IS MINDS OF SIGNIFICANT 4TH AMEND. INTEREST THAT MUST BE BALD
AGAIN THE INTERESTS IN PROTECTS THE 0 ON THE SCENE BUT THE STANDARD AR NOUNED IN BUIE
AND ADOPTED BY THIS COURT HAVE ALREADY PLACED 3 LAYERS OF LIMITATION NS 0 THE DOCTRINE
TO ENSURE THE SANCTION AT THE OF THE HOME. DEFINING FIRST THE LEVEL OF JUSTIFICATION
REQUIRED, SECOND THE SCOPE OF WHAT POLICE CAN LOOK FOR, AND THIRD HOW LONG THE SWEEP
CAN REASONABLY LAST. THESE LIMITATIONS WILL SKWISHTLY PROTECT INDIVIDUAL PRIVACY AND WHEN
A ARREST IS MADE OUTSIDE THE DOOR LIKE IT WAS HERE. WHILE AT BUIE ONE SWEEP
OR A SWEEP OF IMMEDIATELY ADJOINING AREAS DOES NOT REQUIRE REASON ANL SUS SPIPGS OR PROBABLE
CAUSE, IT IS NOT AUTOMATIC. THE AREA TO BE SWEPT MUST FIRST IMMEDIATELY ADJOIN THE PLACE
OF AR REFSHTHS SECOND AN AREA FROM WHERE AN A TACK COULD BE MEELD LAUNCH DZ AND 3RD A
PERSON COULD BE REASONABLY AND BE HEIGHT, EVEN THAT THE ARE THE BUIE ENSURE THE SWEEP
LAST NO LONGER THAN NECESSARY FORTS POLICE PRESENCE, LEGITIMATE PURPOSE FOR POLICE
PRESENCE. SO THE APPLICABILITY OF BUIE 1 SWEEP WILL NECESSARILY TURN ON THE
PARTICULAR FACTS PRESENTED. BECAUSE THE SWEEP IN THIS CASE WENT BEYOND THE IMMEDIATELY
ADJOINING AREAS, IT YOU WILL MILT THE MUST PASS MUSTER UNDER BUIE 2 FRPT BUT THE INITIAL
ENTRY HERE WAS ALSO JUSTIFIABLE UNDER BUIE 1 AND THIS COURTS'S REASONING IN COPE APPLIES
COMBULGLY TO TERRES. IN COPE THIS COURT CONSIDERED THE PORCH IMMEDIATE AL JOINING THE
LOCATION OF THE ARREST IN THE LIVING ROOM. HERE THE OFFICERS WERE LAWFULLY ONTS 41 PORCH
TO ARREST FULLER. SO AS A PRAK COUPLE MATTER THE AR RESTS ONTS FRONT PORCH ARE ALMOST
IMMEDIATELY OUTSOID THE FRONT DOOR NECESSARILY JUSTIFY THE DETECTIVE'S PRECAUTIONARY STEP
JUST PAST THE THRESHOLD TO KWIBLY ENSURE NO ONE WAS INSIDE WHO COULD HAVE EASY THE LAFRJ
DZ AN A TACK FRP THE RAIDS YUS T OF DANGER TO PETROSKY AND HER SKI EX STEN THE INTO THE
HOME IT WAS ONLY A FEW FEET WHERE FULLER WAS BEING AR RETDED, BECAUSE THE OFFICERS WERE
ALREADY IN THE CURT LICH ARREST AGO PETROSKY STEPPED AFT INCREMENTAL INCURS COMPLARD TO
PLEASES RIFRP SIFRPING WALKING PAST AND STREET AND BARGING IN THE DOOR KWOUT A PURPOSE
IN THE DECISIONS BOW BOTH THE TRIAL JUDGE AND APPELLATE DIVISION CONSIDER THE CLOSE MROKS
SIM EMPTY OF THE OFFICERS TO THE OPEN FRONT DOOR IN FINDING THAT THE SWEEP FOR THE SECOND
MALE WHO THEY WERE JUST WARNED ABOUT WAS FER IS PERMISSIBLE BUT ULT MILLION AS I SAID
THE SWEEP MUST PASS MUSTER UNDER BUIE 2 SINCE THE AREA WHERE THE GUNS WERE LOCATED WAS
NOT IMMEDIATELY ADJOINING. THERE WERE A MULTITUDE OF FACTS THAT SUPPORTER
IS THE DAEN JER TO THESE TWO OFFICERS AND GAVE REASONABLE AND ARTICULABLE SUSPICION THAT'S
TRAILER HARBORED A DANGEROUS INDIVIDUAL INSIDE FRPT THIS INCOLLIDED THE FACT THAT THE
OFFICERS WERE SEEK AGO FUGITIVE ACTIVELY AVOIDING APPREHENSION, THEIR PRE EX SEFRTING
KNOWLEDGE A TREMENDOUS AMOUNT OF CRIMINAL ACTIVITY THAT WAS TAKING PLACE AT THAT
TRAILER PARK IN THE PAST MOSHGS SPECIFIC THE IN THE PRESENCE OF WEAPONS AT THE TRAILER
PARK, FOOT AND VEHICLE TRACK GOING TOO THE DEFENDANT'S TRAILER IN PARTICULAR, THE
DEFENDANT'S AR RET FOR POSSESSING METHAMPHETAMINE THE NIGHT BEFORE, AND KRITS CLEE THE
WARN FROM THE MALE AT THE FIRST BUILDING THAT THEY THE POLICE ENTERED THAT FULLER WAS
WITH ANOTHER MALE IN THE DEFENDANT'S TRAILER AND TO BE CAREFUL MUCH THE TOE TALTS OF THESE
FACTORS COMBIENDZ BY THE SPONTANEOUS CIRCUMSTANCES THAT THE DEVELOPED ONCE THE
OFFICERS ARRIVED AT THE DEFENDANT'S TRAILER WHICH INSUED THE THE FUGITIVE'S HEAD LONG FLIGHT
AND THE PRESENCE AVENUE DEADLY WEAPON THAT WAS IMMEDIATELY OBSERVABLE ONCE THES STEPDZ
INSIDE GAVE THE OFFICERS THAT PARTICULARIZED SUSPICION THAT'S TEST'S TRAILER HARBORED
AN INDIVIDUAL POSING A DANL JER TO THOSE ON THE AREA RESTS SEEN CHIN CLUED THE THE WOMAN
AND HER BAESHG IT'S THE STATE IS POSITION STATE KOIS APPLY BUIE TO THE THE STATES AFFIRM
THE EFT APPELLATE DIVISION THAT'S THE WHAT COULDN'T YOU HAD. CHIEF JUSTICE
RABNER: HERE THE AR RFTS WAS FEET AR RAW AROUND 5 FEET ACCORDING TO THE TRANSCRIPT.
HOW FAR WOULD BE PER PERPTED IF SOMEONE WERE 15, 20 FEET AWAY AS YOU ARE FROM THE BENCH
RIGHT NOW, COTS OFFICERS HAVE GONE INTO THE TRAILER? DAVID M. GALEMBA:
THE A GOING TO BE A CASE BY CASE Aly ZAS, HARD TO DWRAU BRIGHT LINE ON IT BUT IT HAS TO BE
CLOSE ENOUGH WHERE AN A TACK COULD BE IMMEDIATELY LAUNCHED. SO IF YOU'RE
TALKING ABOUT THE FACTS IN RADEL, THAT'S GOING TO BE TOUGHER TO SHOW THAT IT WOULD FALL
UNDER BUIE 1. IF YOU'RE TALKING ABOUT STEPS FROM THE DOOR ON THE PORCH, LITDZLY ON THE
PROPERTY OFRN AN EXTENSION FL HOME, THAT WOULD SUFFICE UNDER THAT FIRST, UNDER BUIE 1.
CHIEF JUSTICE RABNER: IF THE FACTS IN THIS CASE WERE CHANGED AND INSTEAD
OF IT BEING A FEW FEET FROM THE DOOR, A 20 FEET WOULD YOUR ARGUE MANY BE THE SAME GALLON
IN THAT CASE THE STATE WOULD BE JUST IF I GO THE ENTRY BURLY UNDER THE BUIE TWO REASONABLE AND
ARTICULABLE SUSPICION STANDARD. CHIEF JUSTICE RABNER: WOULD YOU BE ABLE TO
PRO VIAL IS A NIE QUESTION. DAVID M. GALEMBA: YES. NOW, THE PROXIMITY
OF THE HOME IS GOING TO BE A FACTOR IN WHETHER OR NOT THERE'S REASONABLE AND ARTICULABLE
SUSPICION. BUT THEY HAVE JUST BEEN WARN DZ ABOUT ANOTHER MALE INSIDE, THAT THEY HAVE NOT
LOCATED THAT MALE BECAUSE AETS NOT THE MAN WHO COMES OUT OF THE TRAILER WITH --
JUSTICE ALBIN: DOESN'T, ISN'T DISTANCE IMPORTANT IN TERMS OF SURPRISE? IF YOU'RE 15 OR
20 FEET AWAY FROM THE TRUNT FRONT DOOR, RUK POSITION YOURSELF TO PROTECT YOURSELF FROM
ANYONE COMING OUT THE FRONT DOOR. THAT'S DIFFERENT IF YOU'RE ON THE PORCH AND SOMEONE
CAN BE COMING FROM RIGHT AROUND THE BACK DOOR. BALANCE. DAVID M. GALEMBA:
THAT'S CORRECT. JUSTICE ALBIN: THE POLICE OFFICERS YOU HAVE EVEN IF YOU'RE
10 FEET AWAY AND YOU'RE LOOKING ITS FRONT DOOR, YOU'RE UNLIKELY TO BE SURPRISED BY ANYONE
COMING OUT, CORRECT? DAVID M. GALEMBA: CORRECT. YES. AND IF YOU'RE ON
THE, AT THE FLESH HOLD THERE'S MORE WAYS FOR THESE OFFICERS TO BE ATTACKED, THEY COULD BE
HAND BY HAND, IT COULD, THE CROSS BOW, CERTAINLY THERE'S MORE WAYS TO ATTACK.
JUSTICE PATTERSON: MORE AN GUTS, IF YOU'RE RIGHT AT THE FRONT DOOR, DEPENDING ON THE RESIDENCE
AND HOW THE A HE LAID OUT, THERE ARE MORE ANGLES FROM WHICH SOMEONE COULD BE ATTACKED
THAN, THEY WOULD SEARCHLY HAVE TO BE ATTACKED STRAIGHT OUT THE DOOR IF THEY WERE 20 FEET
AWAY. DAVID M. GALEMBA: THAT'S CORRECT. AND SO UNDER BUIE, IF IT'S ARREST
THAT'S OCCURRING ON THE SIDEWALK OR IN THE DRIVEWAY, THE CONCERN THERE IS GOING TO BE
MORE WITH GUNS. SO IF THERE'S INFORMATION THAT POTENTIALLY WEAPONS INSIDE, AND THERE WAS
A CASE THAT WAS CITED IN THE ATTORNEY GENERAL'S BRIEF IN WHICH I BELIEVE IT WAS NELSON
WHERE OFFICERS WERE STARNDZING ACROSS THE STREET AND WERE SHOT OUTSIDE THE WINDOW, SO
THE AL DEPENDS ON THE INFORMATION THAT THE OFFICERS SOMEWHERE WHEN THEY APPROACH THE
RESIDENCE. IT'S NOT OUT OF THE QUESTION IF THEY'RE TWEN FEET FROM THE DOOR THEY COULD
HAVE THE REASONABLE AND ARTICULABLE SUSPICION IF THEY KNOW THAT THERE'S SOMEBODY DANGEROUS
INSIDES WHO HAS ACCESS TO WEAPONS. BUT THAT'S THE FACTS OF THIS CASE, THESE
OFFICERS WERE PRONE WRITES AND OTS FRONT PORCH AND WITH REGARD TO THE REASONABLENESS OF THE
OFFICER'S KUKTS THAT THERE'S ONLY TWO OFFICERS HERE, THAT HAPPENS SPONTANEOUSLY. THEY
HAD A PLAN BEFORE THEY EVEN WENT TO THE TRAILER PARK THAT DAY, THEY A BRIEFING ABOUT FULG
LER, ABOUT WHAT WAS GOING ON ITS TRAILER PASHGS ARRIVE WITH FOUR OFFICERS, TWO HAVE TO
STAY BEHIND BECAUSE OF DEVELOPMENTS THAT HAPPENED SPONTANEOUSLY AT THAT FIRST BUILDING.
AND THOSE TWO OFFICERS PETROSKY AND HERSHEY, THEY REASONABLY DECIDE TO APPROACH THE DEFENDANT
'S TRAILER ON FOOT BECAUSE THEY'RE DEALING WITH SOMEBODY WHO IS ACTIVELY AVOIDING
APPREHENSION. SO THEIR CONDUCT WAS REASONABLE, LTS FACT THAT THERE'S ONLY
TWO OFFICERS IS BECAUSE OF THE WAY THE FACTS UNFOLDED, AND SO THEIR PATROL CARS ARE NOW
200 YARDS BACK ATS THIS FIRST BUILDING. SO IF THEY DON'T HAVE THE ABL TO STEP INSIDE
AND TAKE THAT MINIMALLY INTRUSIVE PRECAUTIONARY STEP, THEY LEAVE THEMSELVES SITTING DUCKS,
IF THEY JUST TAKE FULLER AND STARTS WALKING TO ANYBODY WHO IS INSIDE AND THAFSH WARN
DZ ABOUT SOMEBODY INSIDE, WHO MAY WANT TO DO HARM TO THEM. WITH REGARD TO
A COMMENTS THAT WAS MADE REGARDING PAT TON, CASES THAT HAVE A PRIDE BUIE JUST OUTSIDE
THE HOME HAVEN'T DONE SO BASED ON PAT TON. BUIE ITSELF RECOGNIZES THAT THE AUTHORITY
FOR THE OFFICERS TO MAKE THE ARREST, ONCE THEY MAKE THAT ARREST, THE ABILITY TO CONTINUE
SEARCHING ENDS. IT'S A PROTECTIVE SWEEP IN AND OF ITSELF THAT PERMITS THE OFFICERS TO
CONTINUE LOOKING. SO WHETHER OR NOT THAT HAPGS INSIDES THE HOME OR A STEP OUTSIDE SHOULDN'T
MATTER BECAUSE THE DANGER TO THE OFFICERS IS THE SAME. REALLY, IT'S CREATING
AND IEN THE PORNGS IN TERMS OF 4TH AMENDMENT JURISPRUDENCE, THE TREASURE HOLD, BUT IT'S
COMPLETELY ARBITRARY IN THIS SITUATION IF THERE'S RISK TO THE OFFICERS IS THE SAME JUST
OUTSIDE THE DOOR AS IT IS JUST INSIDES THE DOOR. PARAGRAPH SO THE IT'S ULTIMATE THE GOING
TO BE A BALANCING OF THE REASONABLENESS;. JUSTICE ALBIN: DOES IT MAKE A
DIFFERENCE IF THE DOOR WERE YOU OPEN IN YOUR CASE, WOULD THAT BE A KRITS CAN YOU TELL
FACTOR IF IT WAS CLOSED? DAVID M. GALEMBA: IT MAY MATTER IN WHETHER, HOW,
IN WHETHER AN ATTACK COULD BE IMMEDIATELY LAUNCHED. I THINK IF AN ARREST IS MASHD THE
DPOR IS CLOEFSHGSD IT'S SOMEBODY WHO CAME OUT PEACE FULLY RATHER THAN RUNNING JOULTS SIDE
AND THEY'RE STOPPED AT THE DOOR, THEN MAYBE IT'S NOT AN IMMEDIATELY ADJOINING AREA WHERE
AN ATTACK CAN IMMEDIATELY BE LAUNCHED. BUT HERE GIVEN THE CIRCUMSTANCES THAT UNFOLDED,
I THINK IT IS A SIGNIFICANT FACTOR THAT SOMEBODY CAN JUST WALK JOULTS SIDE WHO MAY HAVE
SOME RELATIONSHIP TO FULLER. CHIEF JUSTICE RABNER: ANYTHING ELSE WOULD
LIKE TO PRESENT? DAVID M. GALEMBA: NO, YOUR HONOR. MR. Q. CHIEF
JUSTICE RABNER: MR. WILL YOU BUFF, YOU'VE BEEN WAITING VERY PARENTLY. JASON LE
BOEUF: THANK YOU JEEF JUS THIS MAY IT PLEASE THE COURT, YOUR HONOR'S, I HAVE BEEN SITTING
HERE ALL DAY LISTENING CAREFULLY, I COME TO THIS FROM A LITTLE BIT OF A DIFFERENT PER
SPECTIVE. ON BEHALF OF AM CAN YOU SAY, THE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS OF
NEW JERSEY LOOKING AT THIS FROM MUCH MORE GLOBAL PUBLIC POLICY ISSUE BECAUSE INHERENTLY
EX EXPLICITLY WHAT WE ARE TALKING ABOUT HERE WHICH OCCURRED IN THESE TWO CASES IS AN
UNWARRENED PHYSICAL INTRUSION INTO RES RESIDENCES. THE CHIEF, EVIL AGAINST WHICH THE WORDING
OF THE 4TH MD AMOUNT AND OUR OWN STATE CONSTITUTION IS DIRECTED. THE I BELIEVE
JUSTICE ALBIN USED THE HOME HOME IS SANG KRI SANK OON IT SHOULD BE THE RIGHT TO BE SECURE
IN 1'S HOME IS AMONG OUR MOST CHERISHED RIGHTS, THAT'S A QUOTE FROM THIS COURT IN STATE
VERSUS SPRING CAN YOU TELL. THE DETERMINE BRIGHT LINE YOU'LL HAS BEEN UTILITY
LIFE IN THE CHIM CHAMBER QUITE A BIT FROM THE STANDPOINT TELEPHONE AM CAN YOU SAY IT SEEMED
TO GARNERED SOME NEGATIVE CONNOTATION AS IT HAS BEEN USED. AND QUITE FRANKLY WHEN I CONSIDER
THE JUSTICE'S QUESTIONS, THE ANSWERS BY LEARNED COUNSEL WHO I COMMEND ON ALL THEIR ARGUMENTS,
YOU SEE HOW THE HYPOTHETICALS COULD RTS SO OF RUN WILD. WE HAVE HAD QUESTIONS ABOUT
LENGTH OF DRIVEWAY, DISTANCE FROM THE DOOR, THERE WAS ONE QUESTION POSSIBILITY OF A SNIPER.
THE HYPOTHETICALS CAN BECOME SOMEWHAT ENDLESS AND THAT BEING THE CASE, USING CHIEF JUSTICE
RABNER'S WORDING THAT BONY WE WANT TO GIVE CLEAR GUIDANCE TO LAW ENFORCEMENT. THE LESS
INTERPRETATION THAT IS TAKING PLACE ON THE STREET LEVEL IS PROBABLY NOT ONLY IN THE INTEREST
OF CITIZENS, BUT ALSO IN THE INTEREST OF LAW ENFORCEMENT. JUSTICE ALBIN YOU'VE THE WORD
GUESSING. THERE SEEMS TO BE A LOT OF GUESSING AS TO WHAT'S GOING ON. JUSTICE
PATTERSON: YOU'RE SAYING THE BRIGHT LINE LAW IS GOOD FOR LAW ENFORCEMENT EVEN IF THE BRIGHT
LINE RULE WOULD PUT LAW ENFORCEMENT IN DANGER. JASON LE BOEUF: ABSOLUTELY.
JUSTICE PATTERSON: IT'S MORE IMPORTANT TO GIVE THE RULE YOU CAN'T DO THIS,
YOU CAN'T DO THAT WITHOUT A WARRANT THAN IT IS TO TAKE INTO ACCOUNT THE FACTS THAT MAY LEAD
TO A SUSPICION OF DANGER. JASON LE BOEUF: ABSOLUTELY, YOUR HONOR, AND TO
OOT ONE OF JUSTICE ALBIN'S POINTS, COULD IT NOT HAVE BEEN MORE DANGEROUS FOR THE LAW
ENFORCEMENT OFFICERS IN BOTH OF THESE CASES, PARTICULARLY IN RADEL, TO ENTER THE TREPSZ
WHEN THEY DID NOT KNOW WHAT WAS GOING ON. JUSTICE ALBIN: LOOK, WE DON'T
HAVE BRIGHT LINE RULES CLEAR OR DID HE EVER IN IT, BRIGHT LINE RULES FOR ENTERING THE
HOME. PROBABLE CAUSE ON A WARRANT, EMERGENCY AID, IN VAR GAS, AND ALSO IN FRANG CAN YOU
TELL, WE PERMITTED ENTRY INTO THE HOME WITHOUT A WARRANT BECAUSE THE EXIGENCIES DEMANDED
THAT THE POLICE OFFICERS DO SO FOR THE SAFETY OF PEOPLE WHO MIGHT BE EN DAN INJURED JERD.
SO, YES. HOME ASK SANG KRI SANK THAT BUT IT DOESN'T MEAN THERE MAY THE KNOB CIRCUMSTANCES
TO ALLOW THE MREEFRTS TO ENTER THE HOME, YOU CONCEDE THAT. JASON LE BOEUF:
THERE WILL ULS A BE CIRCUMSTANCES MY COLLEAGUE TOUCHED POINT. JUSTICE ALBIN:
THAT'S WHAT WE'RE TOUCHING UPON HERE. FOR INSTANCE, IN THE TERRES CASE, IS WHETHER OR
NOT YOU'RE ONE FOOT OUTSIDE THE FRONT DOOR MEANS THAT THE DANGER TO THE POLICE OFFICERS
IS ANY LEGS THAN WHEN, THAN IF HE HAD MADE AN ARREST ONE FOOT INSIDE THE HOME. AND WHETHER
OR NOT WE SHOULD BE MAKING A DISTINCTION. JASON LE BOEUF: STILL GOES TO
THE BALANCING, YOUR HONOR, BECAUSE AS MY COLLEAGUE HAS INKITSED THAT THRESHOLD HAS AN
IMPORTANT DISTINCTION, EVEN BEYOND PRACTICALLY FROM A CONSTITUTIONAL STANDPOINT THAT,
THIS ARREST TOOK PLACE OUTSIDE THE HOME. AND AS FAR AS WHETHER OR NOT THERE WOULD BE
A BRIGHT LINE RULE, I WOULD ARGUE, YOUR HONOR, THERE WAS A BRIGHT LINE RULE PRIOR TO THESE
PROTECTIVE SWEEPS, BECAUSE WHEN I READ THE LANGUAGE OF THIS COURT IN DEVILLE AND BRYANT,
WARRANTLESS SWEEP IS PERMITTED WHEN LAW ENFORCEMENT OFFICERS ARE LAWFULLY WITHIN THE
PRIVATE PREMISES. THEY WERE NOT WITHIN THE PRIVATE PREPSZ IN HE'D OF THESE CASES. SO
WHAT THE STATE IS ASKING THIS COURT TO DO IS TAKE SOMETHING THAT IS ALREADY AN EXCEPTION
TO THE WARRANT REQUIREMENT AND EXPAND UPON IT. AND THAT'S JUST NOT, FROM THE POLICY
STANDPOINT FROM, CONSIDERING THAT YOU ARE GIVING TOO MUCH INTERPRETATION TO WHAT'S GOING
ON ON THE STREET FROM THE MERE FACT THAT WE'RE NOT TALKING ABOUT SOMETHING IN WHICH THERE'S
A DIMINISHED EXPECTATION OF PRIVACY, THERE'S A PERSON'S HOME -- JUSTICE ALBIN:
BUT YOU WOULD AGREE WITH MS. LERER, OBJECTIVELY REASONABLE BASIS TO BELIEVE THAT THEY WERE
ENDANGERED THEY WOULD BE ABLE TO ENTER THE HOME? JASON LE BOEUF: WITH EX
IGENCY R. JUSTICE ALBIN: THAT IS EXIGENCY. JASON LE BOEUF:
YES, YOUR HONOR. CHIEF JUSTICE RABNER: ANYTHING WOULD YOU LIKE TO ADD.
JASON LE BOEUF: NO, JUDGE, CHIEF JUSTICE THE ONLY THPG I WOULD LIKE CONTINUED
GRATITUDE FOR THIS COURT RECOGNIZING AS AM CAN YOU SAY ON THESE IMPORTANT JUSTICE ISSUES.
CHIEF JUSTICE RABNER: I'LL ASK BOTH KOUN SETTLE ON REBUTTAL TO TRY TO KEEP
YOUR ARGUE NLS BEE MS. BARTOLOMEY. DEBORAH BARTOLOMEY: THANK YOU, YOUR HONOR.
THE ONLY THING I, POINT I WOULD LIKE TO MAKE IS THERE'S BEEN A LOT OF COMMENTARY ABOUT
POLICE AND POLICE MAKING THE DECISION TO PROTECT THEMSELVES AND SAYING THAT WESHLGS YOU KNOW,
MAYBE WHAT THEY'RE DOING ISN'T RIGHT, IT MIGHT BE LESS SAFE AND THINGS LIKE THAT BUT WE
ALLOW THE BLEEZ TO MAKE THOSE DECISIONS BECAUSE OF THEIR EXPERTISE, FOR ONE THING, AND
THIS COURT'S EXPERTISE IS DIFFERENT. THIS COURT HAS THE EXPERTISE TO LOOK AT WHAT THE
POLICE DID AND TELL US WHETHER OR NOT TWU IN KEEPING WITH THE CONSTITUTION. POLICE
OFFICERS HAVE A DIFFERENT EXPERTISE, A DIFFERENT EXPERIENCE, THEY SPEND A LOT OF TIME ON
TACTICAL TRAINING WHICH MAY HELP EXPLAIN WHY THERE AREN'T AS MANY DEATHS AS, YOU KNOW,
A LOW NUMBER OF DEATHS DURING POLICE ENTRIES, BUT IT ALSO MAY HAVE SOMETHING TO DO WRI
THE STATISTICS AND, YOU KNOW, I DON'T WANT TO GET INTO THAT. BUT THAT'S NO REASON TO
TAKE A POLICE SAFETY MEASURE AWAY BECAUSE THEY'RE WORKING. SO BESIDES HAVING
THE EX MER TEASE, IT IS THE POLICE OFFICERS WHO ARE GOING TO FACES THE CONSEQUENCES OF
THEIR DECISIONS. SO THAT I BELIEVE IS WHY THE CASES ALLOW THESE TACTICAL MEASURES TO BE,
YOU KNOW, A MATTER OF POLICE KNOWLEDGE INSTEAD OF, YOU KNOW, SOMETHING THAT THE COURT
HANDS DOWN AS A BRIGHT LINE RULE. YOU CAN ALWAYS SECOND GUESS, WE ADHERE TODAY ONE COMMENT
WAS OH, THERE WERE SIX OFFICERS IN RADEL, IT WAS A SWAT TEAM, YOU KNOW, AND THEN ON THE
OTHER SIDE S ONLY 4 OFFICERS IS TERRES SO THEY SHOULD USE MORE, YOU CAN AUS SECOND GUESS
ON BOTH SIDES. POORG BUT IN FIRST INSTANCE, THE POLICE SHOULD BE ALLOWED TO DESIGN HOW
THEY CARRY OUT THE COURT'S WARRANTS AND THEN AFTERWARDS THE COURT HAS THE ABILITY TO LOOK
AT EFG CAREFULLY AND SAY, WAS THIS OR WAS THIS NOT IN KEEPING WITH THE CONSTITUTION.
JUSTICE PATTERSON: EVEN IF THERE WERE A OPTIMAL NUMBER AND IT'S HARDS TO
SAY, TWO IS TOO FUSHGS SIX IS TOO MANY, I GUESS, EVEN IF THERE WERE OPTIMAL NUMBER, POLICE
OFFICERS CAN'T ALWAYS MAKE THOSE CIRCUMSTANCES PLAY OUT AS, YOU KNOW, EXACTLY AS THEY
MITES PLAN. DEBORAH BARTOLOMEY: IT'S AN EVOLVING DANGEROUS SITUATION AND
THEY DO THE BEST THEY CAN WITH THE TOOLS THEY'RE ALLOWED TO HAVE UNDER THE CONSTITUTION.
SO. THAT WOULD BE MY ONLY COMMENT, YOUR HONOR. RAB RACK THANK YOU. MS. LARRY ERR.
TAMAR Y. LERER: I WILL BE BRIEF. I WILL BE TWO COMMENTS OUN AND EACH SIDE
OF THE BALANCING THAT WE'RE K LOOG ALT. FIRST AND OTS PREEFRT SEASIDE. I JUST WANT TO
EMPHASIZE IN CONTRAST TO THE PROTECTS TIFF SWEEP SITUATIONS WHERE OFFICERS ENTER HOUSE
BY SOME OTHER LAWFUL MECHANISM, THE EXPLORATION OF THE HOUSE IN THOSE CIRCUMSTANCES AFFECT
PRIVACY BY MATTER OF DEGREE. BY CONTRAST WHSHGS AN ARREST OCCURS OUTSIDE A HOME, AN
OWNER MAINTAINS HIS ORIGINAL HIGH EXPECTATION OF PRIVACY. ENTERING INTO THE HOME AFFECTS
THE PRIVACY IS THAT SO AED MA OF MAGNITUDE THEN, NOT OF DEGREE, AND THAT'S WHY NISZ SUCH
AN IMPORTANT CONVERSATION ABOUT LOWERING THAT STANDARDS. ON THE DANGER END,
I JFRT WANT TO SAY THAT AND WEAVE CIRCLING THIS AND RULING IN TER EZ'S FAVOR #25IKS NOTHING
AFTER WAY FRTS CURRENTS POLICE ARSENAL THEY HAVE TO PRO TECH THEMSELVES, IT WOULD SIMPLY
BE REFIEFRL FO PRISON THE REFUSAL SLIP ISN'T THE WORDS OF THE SUPREME COURT OF THE UNITED
STATES AND MEANS A BRANDS NEW TOOL THAT WE HAVE NO SEFD NECESSARY. ALL OF THE LEGITIMATE
DERNS FOR OFFICER SAFETY, EVERY SINGLE FACT WORRY TALKING ABOUT, DISTANCE AND CONFEDERATES
AND THE ARREST AND THE CRIME, THEY ALL ENCOMPASS DZ IN THE EXIGENCY AND EMERGENCY DOCTRINES
WHICH POLICE APPLY EVERY SINGLE DAY AND WE HAVE NO EVIDENCE HAVE NOT BEEN ENOUGH TO BALANCE
THE PRIVACY AND THE SAFETY INTERESTS AT STAKE HERE. CHIEF JUSTICE RABNER:
THANK YOU. THANK YOU TO ALL COUNSEL