Supreme Court Of N.J. Issues Two Significant Search And Seizure Opinions

New Jersey's courts have seen an uptick in Fourth Amendment search and seizure and ancillary privacy litigation over the last few years. In April and May of 2015 alone, the state Supreme Court issued two significant opinions that implicate both the Fourth Amendment and the proper admission into evidence of monitored telephone calls: State of New Jersey v. Ricky Wright and State of New Jersey v. Kingkamau Nantambu. A quick look at the court's docket for next term shows that more decisions are coming.

The Private Search Doctrine

The "private search doctrine" occupies 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 personnel 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 happens enough to be the subject of a May decision by the Supreme Court of New Jersey—State of New Jersey v. Ricky Wright—which recounts a diverse line of state and federal authority on this very issue.

Although somewhat counterintuitive, the logic of the doctrine is as follows: Since a private person conducts the original search, it is deemed to not 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.

Should this doctrine apply to the most sacred of all Fourth Amendment locations—a private home? As always, this is the beating heart of the privacy-based analysis. For as U.S. Supreme Court Justice Antonin Scalia has observed, "[W]hen 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. This eternal clash between privacy and law enforcement prerogatives brings us to the case of Ricky Wright.

Wright had a girlfriend, a woman named Evangeline James. She lived with her children in an apartment in Asbury Park, New Jersey, where Wright stayed over three-to-four nights a week.

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

The landlord was true to his word and arrived in the company of a plumber on Monday morning. James, however, was not home and did not answer her telephone. After waiting about 30 minutes, the landlord let himself in—something he had done before, presumably as required for routine maintenance.

The landlord and the plumber observed water and raw sewage leaking from the...