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Protect, Serve, Search, and Seize

Posted on Jul 20, 2009

Many of us have noted on the sides of police patrol vehicles the words, "To Protect and To Serve," but we do not always fully understand or appreciate their meaning.  This month, however, the New Jersey Courts have focused on this in two decisions having to do with the Fourth Amendment right to protection against illegal search and seizure.  These cases show how the efforts of police officers to protect and serve the people can be the basis for allowing for unwarranted searches and seizures of evidence.

On July 2, 2009, in the case of State v. O'Donnell , the New Jersey Appellate Division held that when the police make an emergency entry into a residence, they may seize any evidence they find in plain sight in the course of rendering aid.  Here, the police were responding to a 911 call saying that  a six-year-old child had stopped breathing.  They located the child who appeared to have died, and while doing so, noted in plain view near the child's body several items that looked to be evidence of a crime.  Rather than seize these items immediately, the police arrested the defendant, removed her to the police station, secured the crime scene and awaited the arrival of homicide investigators from the prosecutor's office. The homicide investigators arrived 40 minutes later, entered the residence without a search warrant and seized the evidence. The Court held that the police were lawfully in a position to see the items in plain view. Not only that, but the subsequent arrival of the homicide investigators and entry without a search warrant was reasonable, because this second entry was nothing more than a continuation of the initial entry into the residence by the police.

On July 7, 2009, in the case of State v. Bogan , the New Jersey Supreme Court dealt with a case involving the "community caretaking" exception to the warrant requirement for searches.  This exception, as explained by our Supreme Court in the case of State v. Diloreto (quoting State v. Cassidy ,), is "[t]hat doctrine [that] applies when the ‘police are engaged in functions, [which are] totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'"  Basically, pursuing their mission "to protect and to serve."  Here, the police were investigating the sexual molestation of a 14-year-old girl, who was able to identify her attacker as a family friend.  When the police went to the accused's residence, the door was answered by a young boy who appeared to be by himself and not subject to any adult supervision. While talking to the boy, he retreated into the apartment to answer a phone call from his father.  The police entered with him to speak to the father on the phone in order to inquire as to the child's care and welfare. After they got inside, the police noticed a man who matched the description of the subject of the sexual assault investigation in plain view in another room.  When the police confirmed the name of the man with the child's father, the officers immediately arrested the defendant and, following a waiver of Miranda rights, obtained incriminating statements from him. The Supreme Court held that the police entry into the apartment without a warrant was entirely reasonable in light of their community caretaking obligations toward the unattended child they had encountered at the apartment, and their inquiring of a parent why a child was home alone on a school day in an apartment where a suspected crime had occurred.

When the police investigate crimes, they must follow the rules and preserve peoples' constitutional rights.   We want them to. However, these cases recognize that the duties of a police officer go way beyond investigating crimes; they include a mandate "to protect and to serve."  Therefore, when they are in the course of doing so, and discovery evidence of a crime in plain view, they are allowed to investigate and thus seize same.  To do otherwise would be to force them to ignore said evidence and said crime, which we would certainly not want them to do.

Steven J. Richardson
Bankruptcy, Collections, Student Loan, DUI and Traffic Court attorney in Woodbury, NJ.