Can The 'Private Search' Doctrine Serve As An Exception To The Federal And State Of New Jersey Constitutional Requirement That A Warrant Issued In Advance Of A Search Of A Private Home?

Can The "Private Search" Doctrine Serve As An Exception To The Federal And State Of New Jersey Constitutional Requirement That A Warrant Issued In Advance Of A Search Of A Private Home? The Supreme Court of New Jersey's decision in State of New Jersey v. Ricky Wright (May 19, 2015)

The "private search doctrine" is a semi-obscure corner of Fourth Amendment jurisprudence. At its base, the doctrine addresses instances in which a private actor (i.e., not a law enforcement officer) conducts a "search" and discovers some species of contraband or proof of illegal conduct. That person must then proceed to notify law enforcement and/or present them with the item in question. Law enforcement must then proceed to duplicate the private search without first obtaining a judicial warrant.

Does this happen every day? Probably not. Yet, it does happen enough to be the subject of a recent decision by the Supreme Court of New Jersey, which opinion recounts a diverse line of state and federal authority on this very issue.

Although a bit counter-intuitive, the logic of the doctrine is as follows: since a private person conducts the original search, it is thus deemed not to implicate the Fourth Amendment. So, if the follow-up police search does not exceed the scope of the private search, the government is held not to have invaded a protected privacy interest and an otherwise proscribed warrantless search can be valid.

But should this doctrine apply to the most sacred of all Fourth Amendment locations- a private home—as always, the beating heart of any privacy based analysis? For as Justice Scalia has observed, "...when it comes to the Fourth Amendment, the home is first among equals " and stands "at the Amendment's very core." Florida v. Jardines , 133 S. Ct. 1409, 1414 (2013). These protections exist with equal vigor in the New Jersey State Constitution in Article I, Paragraph 7. So, this eternal clash between privacy and law enforcement prerogatives now brings us to the unfortunate case of Mr. Ricky Wright.

Mr. Wright—although perhaps not otherwise a model of probity—did have a girlfriend, a woman named Evangeline James. Ms. James lived with her children in an apartment in Asbury Park, New Jersey where Mr. Wright would stay over three to four nights a week.

One Sunday evening in March 2009, Ms. James called her landlord to report a major water leak in her ceiling. The landlord instructed Ms. James to turn off the water main valve and assured her that both he...