Heller's Impact On Search And Seizure Law

The June 2008 decision of the United States Supreme Court in District of Columbia v. Heller, 128 S.Ct. 2783 held that a District of Columbia statute banning and criminalizing the possession of a loaded and operative firearm, including a handgun, within the boundaries of the possessor's home, is a breach of the Second Amendment of the federal constitution. For the first time, the Court held that the Second Amendment protects an individual's right to own a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self defense within the home.

The handgun ban and the trigger-lock requirement as applied within the home was also struck down because it would render the firearms ineffective for their lawful intended purpose. The scholarly back and forth between Justices Scalia, for the 5-4 majority, and Justice Stevens, for the dissent, are fascinating but irrelevant to our purposes. The issue to be addressed at present is how this decision will affect search and seizure law in the current instance of raids on alleged "drug houses".

Amendment IV of the Federal Constitution and Article 1, Paragraph 7 of the New Jersey Constitution offer protection, in virtually identical language, against searches and seizures. In the case of a residence the defendant has an unusually high degree of a legitimate expectation of privacy and the burden upon the State to justify the intrusion is especially high. State v. Rose, 357 N.J. Super. 100, 103, certif. den. 176 N.J. 429 (2003) (motel room).

Warrantless searches and seizures are presumptively and prima facie invalid under the minimum federal Fourth Amendment standards. Schneckloth v. Bustamonte, 413 U.S. 218, 219 (1973), and of course under New Jersey standards as well, State v. Johnson, 193 N.J. 528, 552 (2008). The State must prove a recognized exception to the requirement of a warrant by a preponderance of the evidence in order to defeat a motion for suppression under Mapp v. Ohio, 367 U.S. 643, 655 (1961). State v. Pinerio, 181 N.J. 13, 19 20 (2004).

When a warrant has been issued by a neutral and detached magistrate prior to search and seizure, the search is presumptively valid and the determination of the magistrate is entitled to great deference. The magistrate must, of course, issue his warrant only upon presentation of "probable cause" through an affidavit presented to him or her.

In both of the case of a warrantless search, and a search pursuant to warrant, the same issue presents itself though in different procedural contest: Did law enforcement officers have "probable cause" to enter the residence, arrest the defendant, and conduct a search incident to arrest? Examination of a defendant loading ammunition into a handgun, or cocking a shotgun, would also be used to justify direct entry, specifically if these examinations were made in Trenton, Camden or Newark, areas of high crime. The question then is do any of these situations provide probable cause to arrest in light of Heller.

1. First, the mere presence of a firearm within the home, whether licensed or unlicensed, is now a constitutionally protected activity, and would not appear to supply the basis for probable cause to arrest or probable cause to forcibly enter the premises.

2. Although New Jersey disallows possession of handguns without a special license, under Heller an unlicensed handgun is completely permissible to the populace in general, as long as it is kept in the home. This too would not provide probable cause to arrest. The Supreme Court may in future decisions expand the locations in which "the people" may carry arms.

3. The fact that defendant is observed loading a handgun or carrying a handgun within his home would not appear to supply probable cause to arrest, inasmuch as a requirement that the firearm be kept disassembled or otherwise inoperative is prohibited by the Second Amendment.

4. The fact that the defendant is a juvenile would not in and of itself supply probable cause. Despite any statutory prohibitions New Jersey might choose to enact, Heller's right to bear arms "presumptively" extends to all the "people",(128 S.Ct. at 2791) which is defined in Bill of Rights terms in Justice's Scalia's opinion as that "class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."

At this juncture, the use of mere visible possession of a firearm within the home, and perhaps even outside the home, is a questionable basis upon which law enforcement may establish probable cause.

This article is for informational purposes only and does not constitute legal advice. For your specific situation, consult an attorney licensed in your jurisdiction.