In a recent opinion, the New Jersey Appellate Division held that despite the strong smell of marijuana and anonymous reports of unlawful firearms and shots fired, a warrant was required for a police officer to vault a fence and make an arrest.

The Court vacated a Mercer County defendant’s guilty plea to marijuana possession, as well as his jail sentence, concluding that a police officer’s decision to leap over a fence and conduct a search violated the accused’s constitutional right to be free from an unlawful search and seizure.

During the evening of April 6, 2011, the Trenton, New Jersey police received anonymous tips that shots were fired and illegal weapons would be found in a house where the defendant was a guest. The police surrounded the house. An officer stood at a fence enclosing the backyard of the house. The officer claimed to have smelled a faint odor of marijuana.

A second officer knocked on the front door and asked the individual who answered to bring several dogs who were in the yard into the house. When the individual opened the back door to let in the dogs, the officer at the rear of the house (behind the fence) claimed that the odor of marijuana increased. The officer climbed the fence, came onto the property, arrested the person who brought in the dogs, and then searched the backyard, back porch and the house. Drugs and weapons were found. Defendant was arrested and charged with drug and weapons offenses.

A motion to suppress was conducted, but the trial judge found that the police officers
had a reasonable and articulable suspicion to search the house without a warrant. The Court further found that the seizure of the marijuana and weapons was proper because they were in plain view.

The defendant entered a guilty plea to marijuana possession, and appealed the denial of his motion to suppress evidence. The Appellate Division reversed, holding that “. . . the court erred in concluding that [the officer] did not contravene constitutional prohibitions when he jumped over the fence to detain . . . [co-defendant].” In other words, probable cause was lacking to permit the officer to jump the fence without having first obtained a warrant.

The Appellate Division stated that “Reasonable and articulable suspicion of criminal activity does not authorize the police to enter private property to further their investigation.” While it is permissible for the police to briefly detain a person if they suspect that the person was engaged in criminal activity, “. . . this ‘minimally intrusive’ police conduct … must occur where the police have a right to be, not on private property from which the police are excluded.” “Reasonable suspicion to detain and question [the co-defendant]… did not authorize the police to enter the private backyard and back porch,” and subsequently search the home and arrest the defendant. The judges stated that “The backyard and porch were private property within the protected curtilage of the house.” Thus, probable cause to search – and a warrant – were required before a search could be conducted.

As a result of the Appellate Division’s holding, the trial court’s decision was reversed, the drugs and weapons seized during the unlawful search were suppressed, and the defendant’s guilty plea and jail sentence were vacated.

For individuals who are facing state criminal prosecution or sentencing in the Superior or Municipal Courts of New Jersey, or who are appealing their criminal matters before the Superior Court, the New Jersey Appellate Division, or the Supreme Court of New Jersey, it is critical to have an experienced state and municipal New Jersey criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all State and Municipal criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at to schedule an appointment.