Denise Brown v. State of New Jersey and John Steet

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4796-12T3

DENISE BROWN,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
September 11, 2015
v.
APPELLATE DIVISION
STATE OF NEW JERSEY and
JOHN STEET, DETECTIVE (NJSP),
both in his individual and
official capacity as New Jersey
State Police Detective,

Defendants-Respondents,

and

RICK FUENTES COLONEL, both in his
individual capacity and official
capacity as Superintendent of New
Jersey State Police, CHRISTIAN
ESKRIDGE TROOPER (NJSP), both in his
individual capacity and official
capacity as Superintendent of New
Jersey State Police, CITY OF VINELAND,
TIMOTHY CODISPOTI, both in his
individual and official capacity
as Vineland Chief of Police,
JOSEPH VALENTINE, both in his
individual and official capacity
as Vineland Police Sergeant, DAVID
HENDERSCOTT OFFICER, both in his
individual and official capacity
as Vineland Police Officer, OFFICER
SMITH, both in his individual and
official capacity as Vineland Police
Officer, and OFFICER SOTO, both in her
individual and official capacity as
Vineland Police Officer,

Defendants.

_____________________________________

Submitted December 16, 2014 - Decided September 11, 2015

Before Judges Nugent, Accurso and Manahan.

On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Docket
No. L-674-09.

William A. Riback, attorney for appellant.

William P. Flahive, attorney for
respondents.

The opinion of the court was delivered by

ACCURSO, J.A.D.

Two members of the New Jersey State Police entered

plaintiff Denise Brown's home without a warrant and without

consent in order to "secure the apartment" while they sought a

search warrant for the premises. They were looking for evidence

of a home invasion they believed had been committed by her

boyfriend, and, specifically, for a stolen piece of jewelry they

had reason to suspect he had given her.

The officers were able to secure a warrant several hours

after entering Brown's apartment. A search, however, did not

uncover the jewelry or any useful evidence. Brown was not a

suspect in the investigation and was never arrested or charged

2 A-4796-12T3
with any crime. The charges against Brown's boyfriend were

dismissed before trial.

Brown sued the State and New Jersey State Police detective

John Steet1 for violating her state constitutional rights under

the New Jersey Civil Rights Act, N.J.S.A. 10:6-2c. A jury

returned a verdict for defendants and the judge denied Brown's

motion for judgment notwithstanding the verdict (JNOV) and for

an injunction requiring the State Police to take all steps

necessary to come into compliance with the warrant requirement.

Brown appeals from the denial of her JNOV motion contending

that she is entitled to judgment and an injunction "because it

is indisputable the [State Police] seized and entered her

residence absent a warrant, consent, or exigent circumstances

according to policy and training." We affirm the denial of the

motion as to the State, as well as the denial of an injunction

because the State is immune from suit under the Civil Rights

Act. We reverse the denial of the motion as to Steet and remand

for a trial on damages because the troopers' testimony

establishes, indisputably, that their entry into Brown's

1
Brown sued several others as well. The claims against all
of the other defendants were dismissed on motion either before
or after trial. Brown has not appealed from any of those
orders.

3 A-4796-12T3
residence before securing the warrant was unlawful as a matter

of law.

We review the denial of a JNOV motion using the same

standard as the trial court and thus consider "'whether the

evidence, together with the legitimate inferences therefrom,

could sustain a judgment in . . . favor of the party opposing

the motion.'" Sons of Thunder, Inc. v. Borden, Inc., 148 N.J.

396, 415 (1997) (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6

(1969)). To the extent the trial court's denial of Brown's

motion was premised upon an interpretation of the law relating

to warrantless searches, our review is de novo. See Hitesman v.

Bridgeway, Inc., 218 N.J. 8, 26 (2014).

We take the facts from the trial testimony of the State

Police detectives. The detectives were investigating a home

invasion that had happened about three weeks before the events

at Brown's home. Two men wielding revolvers had forced their

way into a home in Dennis Township in Cape May County and made

off with some jewelry.2 Witnesses saw two men, one carrying a

2
The home invasion was apparently a case of drug dealers
stealing from drug dealers. The victim told police that the
robbers had attempted to force her to open a safe in the
basement belonging to her boyfriend, the target of a narcotics
investigation by the Cumberland County Prosecutor's Office, who
also resided in the home. When she was unable to open the safe,
the robbers fled. The victim gave the officers consent to
search her home. They recovered $20,000 cash in the safe, and
(continued)

4 A-4796-12T3
black drawstring, backpack-type bag, get into a blue BMW and

drive away. The detectives identified Brown's boyfriend as a

suspect. They also acquired information from two different but

related sources that he had given Brown a locket stolen in the

robbery.3

Over a week later, Vineland police stopped a blue BMW

matching the one witnesses saw in Dennis and arrested the three

occupants. The BMW belonged to Brown and was being driven by

her boyfriend. State Police impounded the car intending to get

a search warrant for its contents. The detectives waited over a

week to apply for a warrant to search the car. In the interim,

one of the detectives, the lead investigator, spoke several

times to Brown, who was anxious to recover her car. Upon

obtaining the warrant, the lead investigator called Brown to

(continued)
$1000 in the pocket of a jacket in the master bedroom as well as
a quantity of marijuana.
The victim's mother reported that her ex-boyfriend spoke
frequently about robbing her daughter's boyfriend, and that she
told him if he was going to do it, he should do it when her
grandchildren were not home. She also told police that Brown's
boyfriend committed the robbery for her ex-boyfriend.
3
The mother's ex-boyfriend was the source of the information
that "the girl who owns the BMW" was wearing the stolen locket
several days after the robbery. Although Cape May detectives
reported to State Police that the victim's mother told them that
Brown "was currently in possession" of the locket, they did not
say whether the information came from her discussions with her
ex-boyfriend, as had her other information, or whether she had
some independent source of knowledge.

5 A-4796-12T3
tell her they would be searching her car the next morning, and

she could pick it up afterward. When she said she was without a

ride to Buena where the car was impounded, the investigator

offered to pick her up and take her to her car.

When the detectives searched Brown's car, they found crack

cocaine, marijuana and heroin, as well as a holster for a small

caliber gun, like the ones used in the robbery, and some

jewelry. They immediately decided that the next step in their

investigation should be to search Brown's house for additional

evidence. As they were already scheduled to pick Brown up to

take her to her car, they drove directly to her home to seek her

consent for a search.

The lead investigator and Detective Steet met with Brown

just outside her apartment. The lead investigator testified

that Brown refused their request to search her home. His

counsel then asked:

[Defendants' counsel:]

Trooper, what are you trained to do in this
situation, where you go to a place, you go
to an apartment and you ask for consent,
consent is denied, validly denied? What's
your obligation in terms of the training
you've received through the State Police?

[Lead investigator:]

We have to preserve the scene, to keep the
integrity of possible evidence, and then we

6 A-4796-12T3
 have to make the application for the search
warrant.

The investigator explained in response to further questioning

that State Police has "the right to maintain the scene," which

includes "entering the residence" when the occupant has refused

a request to search supported by probable cause. The detectives

testified they gave Brown two options. "[W]e gave her choices

to, she could leave. Just lock up the property and give us a

key so that when we get the search warrant, we can unlock it."

"The other option is if she is insistent in going into her own

home, then we would have to accompany her with that time that

we're waiting for the search warrant."

Detective Steet testified when Brown "was adamant to say,

no I'm going into my own house," the officers followed her

inside despite their clear understanding that Brown "didn't want

us in that house." The detectives accompanied Brown to the

kitchen, telling her "to sit at the kitchen table until we get

our search warrant." The detectives remained in Brown's home

for several hours, refusing her requests to use her own bathroom

unless accompanied by a female officer.

When asked by his counsel why the detectives did not want

Brown back in her home alone, the lead investigator testified,

"we didn't want her to destroy any evidence. We didn't want her

rummaging around the house." When asked whether the detectives

7 A-4796-12T3
had any specific concern that Brown would destroy evidence, the

investigator replied, "if people are possessing things that are

stolen, there's always a reason to believe that once they

realize that they might be a suspect in possessing that stolen

property, that they're going to destroy it or get rid of it."

That led to the following exchange:

[Plaintiff's counsel:]

So anybody that you have reason to believe
has evidence, you have reason to believe
that they're destroying the evidence. Is
that what your testimony is?

[Lead investigator:]

That's absolutely a possibility, yes.

Detective Steet was even clearer about his conclusions. He

testified he had no concern about Brown destroying evidence

until the detectives made her "aware of the existence of

evidence in her home and she insisted in going into her home."

The detective explained that in the course of asking Brown's

consent to search her home, "[w]e explained exactly what we were

looking for when it came to that necklace, the locket with

diamonds. . . . She knew we were aware of that existing and

that our information was, we believed that she was in possession

of it." When asked what facts supported his belief that Brown

would destroy evidence, Steet responded:

8 A-4796-12T3
 Her insistence – her – she insisted on
going into that home without our presence.
That mere fact, for any reasonable person to
believe, once they know that that exists,
that evidence is going to be gone.

So what she wanted us to do was to just
allow her to go into her home, have us leave
and go get the search warrant.

We're going to come back with the
search warrant some hours later, do the
search of the house and that evidence that
she's specifically told about is not going
to be there.

The lead investigator also testified the detectives had no

proof that Brown "was actively destroying evidence" at any time

before they asked Brown for consent to search her home. When

Brown's counsel asked him whether he had any fear that by asking

for consent he would be tipping off the witness, he replied,

"No, because if they deny consent, we then are going to make

application for the search warrant and now, we're going to

maintain control of the integrity of the residence." He further

explained that exigent circumstances were not at issue in this

case because "that deals with more serious crimes, where someone

could possibly, at that very moment, be destroying evidence.

Once you're at the house and you have it secured, it – exigent

circumstances don't exist."

The detectives' supervisor, the sergeant in charge of the

criminal investigation office at the Woodbine station, testified

9 A-4796-12T3
that the detectives had kept him apprised of the progress of

their investigation, and that he was aware they would be seeking

Brown's consent to search her home. He testified that if the

homeowner denies consent and refuses to "lock and leave," she is

free to stay inside her home, but "[w]e stay too." He explained

that it was not only "his training and experience" that dictated

that course "but logic. We can't allow it to – we can't allow

anything to jeopardize the integrity of what's going on inside,

once we are now going to take steps to secure a warrant."

When Brown's counsel asked whether it was his

"understanding, if the consent is denied, that [State Police

has] the right to seize the property," the supervisor replied:

No, sir. It all depends on what that
consent is based upon. If I'm going and
asking you for a consent based upon RAS;
reasonable, articulable suspicion, and you
say no, I've got to walk away because I
can't do anything other than ask
and . . . hope to gain your permission.

. . . .

If I ask for consent based on probable
cause, which is what [the detectives] did
that day, and you say no, I have the benefit
of having a very good plan B, which would be
applying for a search warrant.

When Brown's counsel asked why they had not considered

applying for a telephonic warrant, the supervisor replied,

"Because I would not have, nor would any other of the

10 A-4796-12T3
investigating personnel, been able to articulate that we had a

reasonable expectation that the evidence would be destroyed or

lost." When asked by his own counsel whether applying for a

telephonic warrant would have been appropriate after the

detectives found the holster and jewelry in the car, the

supervisor said, "Absolutely not." When counsel asked why, the

supervisor explained, "Because there's no exigency there."

Finally, in response to counsel's question about the reason for

not applying for a telephonic warrant once the detectives

secured the property, the supervisor said, "Because we took away

the exigen[t] circumstances." He agreed with his counsel's

statement that "[o]nce that property is in the control of [the

detectives], . . . there are no exigent circumstances in terms

of worrying about the destruction of evidence."

When the officers finally obtained the warrant and searched

Brown's home, they did not find the locket they were looking

for. The only item listed on the search warrant return was a

black Nike backpack similar to the one witnesses reported the

robbers carried. The lead investigator testified that although

the bags were of the same type, none of the witnesses was able

to say the bag found in Brown's closet was the one carried by

the robbers.

11 A-4796-12T3
 Our view of this testimony is that it represents a profound

misunderstanding of the "narrow scope of the exigent-

circumstance exception" to the warrant requirement and

establishes beyond any doubt that the detectives' entry into

Brown's home violated her rights under Article I, paragraph 7 of

the New Jersey Constitution of 1947.4 See State v. Lewis, 116

N.J. 477, 484 (1989).5

4
Plaintiff's original complaint alleged violations of her
rights under the Fourth Amendment as well as under Article I,
paragraph 7. Defendants removed that complaint to federal
court. Plaintiff subsequently dismissed voluntarily her federal
claims and the matter was remanded to state court where it has
proceeded under an amended complaint solely under our state
constitution.
5
Although the Supreme Court made clear it was deciding Lewis
under the Fourth Amendment and not under Article I, paragraph 7
on which we had relied, 227 N.J. Super. at 594-95 & n.1, the
opinion did not criticize or overrule Judge King's state
constitution analysis. 116 N.J. at 489. Thus, we consider
Lewis as representing the Court's view that as to the exigent
circumstance exception justifying warrantless entry into a
dwelling, the search and seizure safeguards of the federal and
state constitutions are coterminous. See State v. Hunt, 91 N.J.
338, 344 (1982) (noting the "Court has seen fit to hold that the
search and seizure provisions in the federal and New Jersey
Constitutions are not always coterminous, despite the congruity
of the language") (citations omitted). In no event could we
interpret Article I, paragraph 7 to provide Brown less
protection from unreasonable searches and seizures than that
guaranteed her under the Fourth Amendment. See State v.
Novembrino, 105 N.J. 95, 145 (1987) (noting that "although the
language of article I, paragraph 7 of the New Jersey
Constitution is virtually identical with that of the fourth
amendment, we have held in other contexts that it affords our
citizens greater protection against unreasonable searches and
seizures than does the fourth amendment").

12 A-4796-12T3
 "[P]hysical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed." United

States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125,

2134, 32 L. Ed. 2d 752, 764 (1972). In State v. Hutchins, 116

N.J. 457, 463 (1989), decided over twenty-five years ago, the

Court declared it was "well established that 'searches and

seizures inside a home without a warrant are presumptively

unreasonable,' Payton v. New York, 445 U.S. 573, 586, 100 S. Ct.

1371, 1380, 63 L. Ed. 2d 639, 651 (1980), and hence 'prohibited

by the Fourth Amendment, absent probable cause and exigent

circumstances.' Welsh v. Wisconsin, 466 U.S. 740, 749, 104

S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 743 (1984)."

Although whether there was probable cause to search Brown's

home is questionable,6 it is beyond doubt there were not exigent

6
Leaving aside the questionable reliability of the source
of the information that Brown was wearing the stolen locket, and
the likely "echo" of that source in the information provided by
his ex-girlfriend, the victim's mother, the information on which
the lead investigator relied to secure the search warrant of
Brown's home, that the "search of the BMW revealed jewelry that
belonged to the victim, minus the [locket]," was not true. The
investigator testified at trial that although they "believed at
the time" the jewelry found in Brown's car was stolen in the
home invasion, "we showed them to the victim and she couldn't
identify them." The detectives did not attempt to confirm the
jewelry found in the car was stolen in the home invasion before
deciding they needed to search Brown's house or swearing out an
affidavit to that effect in order to secure a search warrant
when Brown denied them entry. Because plaintiff stipulated that
(continued)

13 A-4796-12T3
circumstances to justify the detectives' warrantless entry, and

that whatever exigency existed was solely of the detectives'

making. Although the term defies precise definition divorced

from the facts of some specific case, "[g]enerally stated,

circumstances are exigent when they 'preclude expenditure of the

time necessary to obtain a warrant because of a probability that

the suspect or the object of the search will disappear, or

both.'" State v. Deluca, 168 N.J. 626, 632 (2001) (quoting

State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif.

denied, 66 N.J. 327 (1974)). The Court has recently reiterated

that "'[e]xigent circumstances are present when law enforcement

officers do not have sufficient time to obtain any form of

warrant' because of the immediate and urgent circumstances

confronting them." State v. Hathaway, ___ N.J. ___ (2015)

(quoting State v. Pena-Flores, 198 N.J. 6, 30 (2009)).

When determining whether exigent circumstances exist,

courts consider:

the degree of urgency and the amount of time
necessary to obtain a warrant; the
reasonable belief that the evidence was
about to be lost, destroyed, or removed from
the scene; the severity or seriousness of
the offense involved; the possibility that a
suspect was armed or dangerous; and the

(continued)
the detectives had probable cause to search her home, we do not
consider this issue further.

14 A-4796-12T3
 strength or weakness of the underlying
probable cause determination.

[State v. Walker, 213 N.J. 281, 292 (2013)
(quoting Deluca, supra, 168 N.J. at 632-
33).]

Applying those factors here, it is plain that exigent

circumstances were absent as a matter of law. These troopers

were not confronted with any immediate and urgent circumstances,

certainly none not of their own making. The detectives had the

information that Brown supposedly had the locket within days of

the home invasion, well before her boyfriend was arrested

driving her BMW. After they were able to impound the car, the

detectives waited over a week to apply for a warrant to search

it. The detectives testified they had no belief that Brown was

destroying or removing evidence, or that she even knew she might

possess evidence, until the detectives told her they were

searching for the locket. Although the offense the detectives

were investigating was a serious one, Brown was not a suspect.

And although Brown does not dispute the existence of probable

cause, the facts to establish it were not strong. The

information that she had the locket came from an individual

implicated in the crime and from his ex-girlfriend. No details

of any sort were provided. The jewelry found in her car had no

link to Brown or to the crime the detectives were investigating.

15 A-4796-12T3
 The detectives' testimony at trial makes clear that they

developed their belief that Brown might try and remove or

destroy evidence only after they told her of the locket, and she

denied their request to search her home for it. For Detective

Steet it was Brown's "insistence . . . on going into that home

without our presence. That mere fact, for any reasonable person

to believe, once they know that that exists, that evidence is

going to be gone." The Court, however, has been unequivocal

that "[a] homeowner has a right under our federal and state

constitutions to insist that a police officer obtain a warrant

before entering and searching his house. The assertion of that

constitutional right, which protects the most basic privacy

interests of our citizenry, is not probative of wrongdoing and

cannot be the justification for the warrantless entry into a

home." State v. Frankel, 179 N.J. 586, 611, cert. denied, 543

U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004), modified in

part on other grounds by, State v. Edmonds, 211 N.J. 117, 131

(2012) (citations omitted).

As for the detectives' belief that without stopping Brown

from entering her apartment without them, "that evidence that

she's specifically told about is not going to be there," the law

is clear that police-created exigent circumstances arising from

unreasonable investigative conduct do not justify warrantless

16 A-4796-12T3
entry into an individual's home. Hutchins, supra, 116 N.J. at

460, 474-76; State v. De La Paz, 337 N.J. Super. 181, 196-97

(App. Div.), certif. denied, 168 N.J. 295 (2001) (finding police

should have obtained telephonic warrant before entering

defendant's home "as there was no obvious urgency requiring

their immediate response at the scene").

The only reason the detectives offered for telling Brown

about the locket in the course of seeking her consent was the

hope she would turn it over voluntarily. We find it hard to

imagine a scenario more unreasonable than the police telling

someone not suspected of any crime that the police wish to

search her home for specific evidence and, when she declines,

claiming their warrantless entry is justified by her possible

destruction of the evidence they just revealed to her. If that

were the law, no citizen would enjoy "[t]he right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures." N.J. Const. art.

I, ¶ 7. That scenario would, as it obviously did for these

troopers, make a citizen's mere assertion of her constitutional

right to insist that a police officer get a warrant before

entering her home probative of wrongdoing, an untenable result.

See Frankel, supra, 179 N.J. at 611. Because the "exigent

circumstances" the detectives offered as justification for

17 A-4796-12T3
proceeding without a warrant were inadequate as a matter of law

and were, in any event, impermissibly self-created, they cannot

justify the warrantless entry into Brown's home. See De La Paz,

supra, 337 N.J. Super. at 196-97.

The State defendants assert on appeal, as they did at

trial, that the detectives did not need exigent circumstances to

enter Brown's home while they waited for a warrant. Relying on

Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148

L. Ed. 2d 838 (2001), they insist that "plaintiff confuses the

concepts of a search based on 'exigency' and simply maintaining

the status quo while the warrant is obtained." We do not find

McArthur to be any refuge for the detectives here.

In McArthur, the United States Supreme Court held that

police officers did not violate the Fourth Amendment when they

prevented a defendant from entering his home for about two hours

while the officers obtained a search warrant for the premises.

531 U.S. at 328, 121 S. Ct. at 948, 148 L. Ed. 2d at 846. They

did so after defendant's wife, whom the officers had accompanied

to the trailer the couple shared "so that they could keep the

peace while she removed her belongings," told the police on her

way out that they should check the trailer because her husband

"had dope in there" and she had seen him "slide some dope

18 A-4796-12T3
underneath the couch." Id. at 328-29, 121 S. Ct. at 948-49, 148

L. Ed. 2d at 846.

The Court declined to find "that the warrantless seizure

was per se unreasonable" because (1) "the police had probable

cause to believe that McArthur's home contained evidence of a

crime and contraband, namely, unlawful drugs"; (2) it involved

"a plausible claim of specially pressing or urgent law

enforcement need, i.e., 'exigent circumstances'"; (3) "the

restraint at issue was tailored to that need, being limited in

time and scope"; and (4) the restraint that was imposed

"avoid[ed] significant intrusion into the home itself." Id. at

331-32, 121 S. Ct. at 950, 148 L. Ed. 2d at 847-48.

In our view, McArthur cannot fairly be read to eschew the

requirement for exigent circumstances for a warrantless entry

into a home. We further find McArthur inapposite for several

reasons: (1) the detectives here did not suspect Brown of

engaging in any criminal activity; (2) the detectives did not

have any reason to believe Brown would destroy evidence before

they told her about the locket and no reason specific to Brown

as to why she might try to destroy the locket even after they

informed her of its provenance; (3) the restraint imposed on

Brown was more severe, as the detectives remained in her home

19 A-4796-12T3
for three and a half to four hours,7 making no attempt to obtain

a telephonic warrant; and (4) the intrusion into her home was

greater, there were always at least two officers present, and

Brown was not allowed even to use the bathroom unaccompanied by

an officer.

A case decided by the Court a year after McArthur, Kirk v.

Louisiana, 536 U.S. 635, 122 S. Ct. 2458, 153 L. Ed. 2d 599

(2002), makes clear that the State's argument that police may

make a warrantless entry into a home to "secure" it without a

showing of exigent circumstances is simply incorrect. In Kirk,

police officers who observed the defendant conduct a suspected

drug transaction entered his apartment and arrested him

ostensibly to prevent the destruction of evidence while they

obtained a search warrant for the premises. Id. at 636, 122

S. Ct. at 2458, 153 L. Ed. 2d at 601. The Louisiana Court of

Appeal refused to consider Kirk's argument that the police had

failed to prove exigent circumstances for their warrantless

entry, finding the issue irrelevant because the police had

probable cause to arrest Kirk and the charges against him were

7
The detectives testified that it took about six hours to
obtain the warrant, despite that the detective's affidavit in
support of the application was largely lifted from the affidavit
used to secure the search warrant for the BMW. Brown had to
leave for work about three and a half to four hours after the
police arrived and thus was not present when the lead
investigator returned with the warrant.

20 A-4796-12T3
based on evidence found on his person, not in the apartment.

State v. Kirk, 773 So. 2d 259 (La. Ct. App. 2000), as amended,

2002 La. App. LEXIS 3634 (La. Ct. App.), rev'd, 536 U.S. 635,

122 S. Ct. 2458, 153 L. Ed. 2d 599 (2002).

The Supreme Court reversed and remanded for a determination

of whether there were exigent circumstances that would have

justified the officers' entry into the apartment, holding that

"[a]s Payton makes plain, police officers need either a warrant

or probable cause plus exigent circumstances in order to make a

lawful entry into a home. The Court of Appeal's ruling to the

contrary, and consequent failure to assess whether exigent

circumstances were present in this case, violated Payton."

Kirk, supra, 536 U.S. at 638, 122 S. Ct. at 2459, 153 L. Ed. 2d

at 603.

Cases decided by lower federal courts since McArthur and

Kirk have routinely required a showing of probable cause and

exigent circumstances for any warrantless entry into a home

regardless of whether to search or simply secure. See, e.g.,

Harris v. O'Hare, 770 F.3d 224, 238 (2d Cir. 2014) ("Because

police officers require 'either a warrant or probable cause plus

exigent circumstances in order to make a lawful entry,' Kirk,

536 U.S. at 638, 122 S. Ct. 2458, the invasion of Plaintiffs'

curtilage without a warrant violated the Fourth Amendment.");

21 A-4796-12T3
Rogers v. Apicella, 606 F. Supp. 2d 272, 287 (D. Conn. 2009)

("Whether regarded as a warrantless entry or a 'protective

sweep,' this entry was unlawful absent exigent circumstances or

consent."); United States v. Christie, 570 F. Supp. 2d 657, 667

(D.N.J. 2008) (noting, "The McArthur Court ultimately held that

exigent circumstances justified the warrantless seizure of the

defendant's home, especially in light of the appropriately

balanced privacy-related and law enforcement-related concerns"),

aff'd, 624 F.3d 558 (3d Cir. 2010), cert. denied, 562 U.S. 1236,

131 S. Ct. 1513, 179 L. Ed. 2d 335 (2011). Accord United States

v. Watson, 703 F.3d 684, 693 (4th Cir. 2013) ("We are not aware

of any Supreme Court case or federal appellate decision

permitting a three-hour detention of an occupant of a building

who lacks any specific connection to suspected criminal

activity, while police obtain a warrant to search that

building.").

Although the State defendants contend "that no case decided

on the basis of Art. I, Para. 7 presents the same factual

setting" as this one, we think the Court's decision in Lewis,8

8
In Lewis, the police received information from an informant
that he had seen drugs in the defendant's apartment, that
defendant and others were packaging the drugs for immediate
distribution and that one of the occupants had a gun. 116 N.J.
at 480. The defendant opened the apartment door when a police
officer knocked but, seeing the officer's uniform, tried to slam
(continued)

22 A-4796-12T3
which involved the warrantless entry into a dwelling, more

closely analogous to this case than State v. Young, 87 N.J. 132,

144 (1981), on which the State defendants rely in support of

their argument that "the New Jersey Supreme Court has recognized

law enforcement's ability to effect a temporary seizure of

property while seeking a search warrant." Young, however,

involved a roadside search of a suitcase taken from the

defendant's car, not a warrantless entry into his home. Lewis,

on the other hand, makes clear that warrantless entry into a

(continued)
it shut. Ibid. The officer "stuck his foot in the door to keep
it open" and, at that point, saw "on the kitchen table, a glass,
a gold razor blade, and a clear bottle containing a white powder
believed by the officer to be narcotics." Ibid. The police
went inside, arrested the defendant, and searched the apartment.
Id. at 481.
The Court held the officer's act of putting his foot in the
door to prevent the defendant from closing it and retreating
into his apartment was unlawful because the informant's report
that people in the apartment "were 'getting ready to leave,'
thus threatening removal of any narcotics on the premises," was
not an exigent circumstance that would justify a warrantless
entry, and that the police could have safely secured the
apartment by surveilling it from the outside. Id. at 487-88.
Our courts have consistently required both probable cause
and exigent circumstances to justify entry into a dwelling.
See, e.g., State v. Lashley, 353 N.J. Super. 405, 412 (App. Div.
2002) (noting "the warrantless entry of the dwelling was . . .
unlawful in the absence of both probable cause and exigent
circumstances"); State v. Holland, 328 N.J. Super. 1, 6 (App.
Div. 2000) (noting that the two prongs of the test of the
legality of a warrantless intrusion into a residence are
probable cause and exigent circumstances), rev'd on other
grounds, 176 N.J. 344 (2003); State v. Ulrich, 265 N.J. Super.
569, 572-73 (App. Div. 1993) (same), certif. denied, 135 N.J.
304 (1994).

23 A-4796-12T3
home is illegal absent consent or probable cause and exigent

circumstances. As the Court has lately noted, "a private home

is not like a package in transit." State v. Wright, 221 N.J.

456, 476 (2015) (declining under Article I, paragraph 7 to apply

the private search doctrine to private dwellings in light of

their "preeminent position" under the federal and state

constitutions).

Accordingly, having reviewed the testimony in the light

most favorable to defendants and having considered all of their

arguments, we conclude the trial court erred in submitting this

case to the jury because the detectives' own testimony makes

clear beyond any doubt that their entry into Brown's residence

before securing the warrant violated her rights under Article I,

paragraph 7 as a matter of law.9

9
Because the State is immune from suit under the Civil Rights
Act, the vast amount of testimony and argument directed to
whether State Police has a "policy" of warrantless entry under
similar circumstances is irrelevant. Any such "policy" would be
relevant only to impose liability on the State for Steet's
actions, a result barred by the State's immunity. See, e.g.,
Stomel v. City of Camden, 192 N.J. 137, 145-46 (2007) (citing
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct.
2018, 2035-36, 56 L. Ed. 2d 611, 635-36 (1978), and Loigman v.
Twp. Comm. of Middletown, 185 N.J. 566, 590 (2006)) (explaining
the circumstances under which a municipality can be held liable
for the civil rights violations of its employees).

24 A-4796-12T3
 That conclusion, however, does not end our inquiry. Brown

has sued under the Civil Rights Act, which provides in pertinent

part:

Any person who has been deprived of any
substantive due process or equal protection
rights, privileges or immunities secured by
the Constitution or laws of the United
States, or any substantive rights,
privileges or immunities secured by the
Constitution or laws of this State, or whose
exercise or enjoyment of those substantive
rights, privileges or immunities has been
interfered with or attempted to be
interfered with, by threats, intimidation or
coercion by a person acting under color of
law, may bring a civil action for damages
and for injunctive or other appropriate
relief.

[N.J.S.A. 10:6-2c.]

The Act was adopted in 2004 "for the broad purpose of

assuring a state law cause of action for violations of state and

federal constitutional rights and to fill any gaps in state

statutory anti-discrimination protection." Owens v. Feigin, 194

N.J. 607, 611 (2008). The Court has noted that although the

legislative history is sparse, it "tells us that our State Civil

Rights Act is modeled off of the analogous Federal Civil Rights

Act, 42 U.S.C.A. § 1983, and is intended to provide what Section

1983 does not: a remedy for the violation of substantive rights

found in our State Constitution and laws." Tumpson v. Farina,

218 N.J. 450, 474 (2014). Given their similarity, our courts

25 A-4796-12T3
apply § 1983 immunity doctrines to claims arising under the

Civil Rights Act. See Gormley v. Wood-El, 218 N.J. 72, 113-15

(2014).

Although not raised by the parties on appeal, the State

defendants asserted they were immune from suit under the Civil

Rights Act in their answer to the complaint. Because the State

can raise its sovereign immunity at any time and does not waive

its immunity through litigation conduct, Royster v. N.J. State

Police, 439 N.J. Super. 554, 567-68, 572 (App. Div. 2015), we

consider whether it can be sued under the Civil Rights Act.

New Jersey courts "have long recognized that an essential

and fundamental aspect of sovereignty is freedom from suit by

private citizens for money judgments absent the State's

consent." Allen v. Fauver, 167 N.J. 69, 73-74 (2001). Our

Supreme Court has held that "[c]onsent has required clear and

unambiguous legislative expression." Id. at 74. Unlike certain

other remedial statutes such as the New Jersey Law Against

Discrimination, N.J.S.A. 10:5-1 to -49, or the New Jersey

Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8,

both of which include the State in their definitions of

"employer," the Civil Rights Act does not on its face apply to

the State.

26 A-4796-12T3
 That is perhaps not surprising in a statute modeled on

§ 1983, which the United States Supreme Court long ago

determined did not apply to the states. Will v. Mich. Dep't of

State Police, 491 U.S. 58, 67, 71, 109 S. Ct. 2304, 2310, 2312,

105 L. Ed. 2d 45, 55, 58 (1989) (holding that "in enacting

§ 1983, Congress did not intend to override well-established

immunities or defenses under the common law," and, accordingly,

"neither a State nor its officials acting in their official

capacities are 'persons' under § 1983"). Given that the

Legislature did not choose to include an express waiver of

sovereign immunity in the Civil Rights Act and that the State

enjoys immunity under the analogous § 1983, we conclude that the

State is immune from a suit for damages under the Civil Rights

Act. The federal courts are in accord. See, e.g., Didiano v.

Balicki, 488 F. App'x 634, 638 (3d Cir. 2012) (rejecting

plaintiff's argument that the word "person" should be

interpreted differently under the Civil Rights Act than in

§ 1983).

Likewise, because the State is not a "person" under the

Civil Rights Act, it is equally immune from suits for damages as

it is for suits seeking injunctions and other equitable relief.

See, e.g., Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105

27 A-4796-12T3
S. Ct. 3099, 3106 n.14, 87 L. Ed. 2d 114, 122 n.14 (1985)

(noting that "a State cannot be sued directly in its own name

regardless of the relief sought" unless its sovereign immunity

is affirmatively waived or validly abrogated by Congress).10

Accordingly, because the State is immune from suit under

the Civil Rights Act, we conclude that the trial court did not

err in denying Brown's JNOV motion as to the State for damages

and injunctive relief, notwithstanding the detectives' violation

of Brown's rights under Article I, paragraph 7 as a matter of

law.

Finally, we consider whether Detective Steet is entitled to

qualified immunity under the Civil Rights Act. The Court has

recently addressed the qualified immunity of police officers in

Morillo v. Torres, ___ N.J. ___ (2015) N.J. LEXIS 661, *21, *38

(July 13, 2015). There the Court explained that

[t]he doctrine of qualified immunity shields
law enforcement officers from personal
liability for civil rights violations when
the officers are acting under color of law

10
Brown has not pursued an injunction remedy against the
Superintendent of State Police in his individual capacity, see
Ex parte Young, 209 U.S. 123, 154, 28 S. Ct. 441, 451, 52 L. Ed.
714, 728 (1908), as she dismissed her claims against him. Brown
alleged in her complaint that Steet was "a policy making
Defendant with respect to searches and seizures of citizens."
There was, however, no testimony at trial to support that
allegation. Steet testified he had been a trooper since 2003.
He did not testify to having any supervisory or policy-making
authority.

28 A-4796-12T3
 in the performance of official duties. This
protection extends to suits brought under 42
U.S.C.A. § 1983 and under New Jersey's
analogue, the Civil Rights Act, N.J.S.A.
10:6-1 to -2.

[Id. at *10.]

We apply a two-prong test in determining whether a police

officer is entitled to qualified immunity. Id. at *25-*26

(citing Wood v. Moss, U.S. , , 134 S. Ct. 2056, 2066-

67, 188 L. Ed. 2d 1039, 1051 (2014)). "The first inquiry asks

whether the facts alleged, '[t]aken in the light most favorable

to the party asserting the injury,' show that the challenged

conduct violated a statutory or constitutional right." Id. at

*26 (quoting Saucier v. Katz, 533 U.S. 194, 201-02, 121 S. Ct.

2151, 2156, 150 L. Ed. 2d 272, 281 (2001), and Wood, supra,

U.S. at , 134 S. Ct. at 2067, 188 L. Ed. 2d at 1051).

"Second, the court must determine 'whether the right was clearly

established.'" Ibid.

"Requiring the alleged violation of law to be 'clearly

established' 'balances . . . the need to hold public officials

accountable when they exercise power irresponsibly and the need

to shield officials from harassment, distraction, and liability

when they perform their duties reasonably.'" Wood, supra, ___

U.S. at ___, 134 S. Ct. at 2067, 188 L. Ed. 2d at 1051 (quoting

Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172

29 A-4796-12T3
L. Ed. 2d 565, 573 (2009)). Courts have noted that the

"dispositive inquiry" on this issue "'is whether it would [have

been] clear to a reasonable officer' in the agents' position

'that [his] conduct was unlawful in the situation [he]

confronted.'" Ibid. (quoting Saucier, supra, 533 U.S. at 202,

121 S. Ct. at 2156, 150 L. Ed. 2d at 281).

Applying that test here, we conclude that Steet is not

entitled to qualified immunity. The detective's own testimony

establishes, unequivocally, that his warrantless entry into

Brown's home without consent or exigent circumstances violated

her rights under our State Constitution, satisfying the first

prong. As to the second prong, the law is well established that

even when police have probable cause that a home contains

evidence of a crime, they are not permitted to enter the home,

or, indeed, put a foot in the door, without exigent

circumstances not the product of unreasonable investigative

conduct. Kirk, supra, 536 U.S. at 638, 122 S. Ct. at 2459, 153

L. Ed. 2d at 603; Welsh, supra, 466 U.S. at 749, 104 S. Ct. at

2097, 80 L. Ed. 2d at 743; Lewis, supra, 227 N.J. Super. at 594-

95. Accordingly, as to Detective Steet, we remand for a trial

on damages.

30 A-4796-12T3
 Affirmed in part; reversed in part; and remanded for

further proceedings not inconsistent with this opinion. We do

not retain jurisdiction.

31 A-4796-12T3