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New Jersey Supreme Court/Amicus
Philip Gallagher/Gibbons Del Deo Dolan Griffinger & Vecchione
In this case, a 9-1-1 operator had received a number of 9-1-1 calls from different locations on the morning in question that had only static on the line. As with the prior static-line calls, police were sent to the home from where the call emanated. At the other homes, individuals consented to police entry. Frankel did not consent to the police entering his home. Police were not satisfied by defendant's explanation that the 9-1-1 call was likely a computer glitch. Police viewed the defendant as nervous, especially given his insistence that they not enter his home when they requested to do so. The police thereupon undertook a warrantless search of defendant's home by walking into rooms and looking into closets, and the officers observed a tray of marijuana and several live plants. The ACLU-NJ, in conjunction with the Association of Criminal Defense Lawyers of New Jersey, submitted an amicus curiae brief on October 8, 2003, supporting the criminal defendant in this case. The issues are (1) whether the emergency aid exception to the warrant requirement can be invoked based on a 9-1-1 call that only had static on the line and (2) whether an officer can take into account an individual's insistence that police not enter his home, in conjunction with general nervousness, to invoke the emergency exception. On May 12, 2004, the New Jersey Supreme Court rendered its decision. While it upheld the search in this particular case, it noted that a 9-1-1 call was not a per se justification to enter someone's home. Rather, a 9-1-1 call creates a presumption of an emergency that can be rebutted (for example, by explaining that a small child was playing with the phone). The Court essentially sets forth that the totality of the circumstances must be considered to determine whether there was a reasonable basis to believe that an emergency existed. Importantly, the Court also held that an individual's insistence that the police not enter his home without a warrant could not be taken into account in making that determination, as the assertion of one's constitutional right to privacy should not be used "to case suspicion on him and serve as an excuse to diminish that right." The Court did, however, allow the defendant's nervousness to be taken into account.
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