                                                       SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                     State v. James L. Legette (A-12-15) (076124)

Argued September 13, 2016 -- Decided January 12, 2017

Fernandez-Vina, J., writing for a majority of the Court.

          In this appeal, the Court considers whether, during an investigatory stop, it is permissible for a police
officer to follow suspects into their homes and seize evidence.

          When an officer was called to investigate a noise complaint at an apartment complex, he saw defendant
James L. Legette standing on a common porch. As the officer approached, Legette opened the door to that area
partway. The officer smelled burnt marijuana, stepped onto the porch, and introduced himself as a police officer.
Legette began to walk away. The officer stopped him and asked him for identification. When Legette offered to
retrieve identification from his apartment, the officer said he would have to accompany Legette. Legette did not
respond but continued to his apartment with the officer following. As they were walking, the officer noted a bulge
in Legette’s sweatshirt.

         Legette and the officer entered Legette’s apartment. Legette presented his identification, and the officer
began a radio transmission to check for outstanding warrants. Legette, meanwhile, removed his sweatshirt and
asked a woman who was present to take it to the bedroom. The officer interrupted the transmission and collected the
sweatshirt from the bedroom. Legette appeared increasingly anxious, so the officer escorted him outside.

          The warrant inquiry came back negative, and Legette did not consent to a search of his sweatshirt. The
officer seated Legette in his patrol car and had his police dog sniff the sweatshirt. The dog moved the sweatshirt and
a metallic noise was heard. The officer then found a loaded handgun in the sweatshirt.

          Legette was indicted on second-degree unlawful possession of a handgun and second-degree possession of
a weapon by a convicted person. He moved to suppress the handgun, challenging the validity of the search. The
trial court denied the motion. Legette then pleaded guilty to possession of a weapon by a convicted person and was
sentenced to a term of five years without parole.

         Legette appealed the suppression ruling, but the Appellate Division affirmed. State v. Legette, 441 N.J.
Super. 1, 11 (App. Div. 2015). The appellate panel relied on Washington v. Chrisman, 455 U.S. 1, 102 S. Ct. 812, 70
L. Ed. 2d 778 (1982), and State v. Bruzzese, 94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L.
Ed. 2d 695 (1984), which concluded that it was reasonable for police officers to follow arrestees into their homes.
The panel reasoned that the same public safety concerns that arise during arrests also arise during investigatory stops.
The panel therefore found that officers are permitted to follow detainees as well as arrestees into their homes.

         The Court granted Legette’s petition for certification. 223 N.J. 355 (2015).

HELD: Chrisman and Bruzzese do not support warrantless entries into detainees’ homes; they apply only to cases in
which a suspect has been arrested prior to the officer’s entry into the home. Here, because the State failed to meet its
burden of demonstrating that the warrantless entry fell within a recognized exception to the warrant requirement, the
entry was illegal and the evidence obtained as a result of that entry should have been suppressed.

1. In Chrisman, supra, the United States Supreme Court concluded that it was valid for an officer to accompany a
college student found carrying a bottle of gin into his dormitory room to retrieve identification. The Court found
that the officer had placed the student under lawful arrest; therefore, “[t]he officer had a right to remain literally at
[the student’s] elbow at all times.” 455 U.S. at 6, 102 S. Ct. at 816, 70 L. Ed. 2d at 785. In reaching this holding,
the Court recognized that every arrest poses a risk of danger to the arresting officer. (pp 8-9)
2. In Bruzzese, this Court adopted the Chrisman rule as the law of New Jersey. Officers in Bruzzese went to the
defendant’s house and stated that they intended to bring him in for an outstanding warrant. The Court held that it
was permissible for the officers to follow the defendant into his room while he retrieved a jacket and shoes. The
Court reasoned that “the privacy rights of an individual who is placed under lawful arrest are diminished,” while
“the arresting police officer is entitled to the protection he or she would receive under this rule.” Bruzzese, supra, 94
N.J. at 232. (pp 9-10)

3. The holdings in both Chrisman and Bruzzese were expressly contingent on the fact that the defendants in those
cases had been placed under arrest prior to the officer’s entry into the residence. Chrisman and Bruzzese apply only
when a suspect has been arrested due to the diminished expectation of privacy of an individual under arrest.
Because Legette was not an arrestee but rather a detainee, Chrisman and Bruzzese are not directly on point. (pp 11-
13)

4. Both the Federal and New Jersey State Constitutions guarantee the right to be free from unreasonable searches
and seizures. Accordingly, a lawful search must be prefaced by a warrant obtained upon probable cause unless the
search falls within one of the few well-delineated exceptions to the warrant requirement. If no warrant was sought,
the State bears the burden of demonstrating the validity of the search. The State’s burden is particularly heavy when
the search is conducted after warrantless entry into a home, because the home bears a special status. This case
requires the Court to determine whether the public safety concerns underpinning investigatory stops can overcome
the special status accorded to the home. (pp. 13-15)

5. Because the reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable
cause necessary to sustain an arrest, there are certain limitations on the scope of such stops. The Court has held that
the investigative methods employed in a Terry stop should be the least intrusive means reasonably available to
verify or dispel the officer’s suspicion in a short period of time. Because officers are limited to taking self-
protective measures during investigatory stops, the Court finds that Chrisman and Bruzzese do not support
warrantless entries into detainees’ homes and declines to expand the scope of investigatory stops to encompass
police entry into the home. (pp 15-16)

6. Here, the officer failed to conduct a routine investigatory pat-down before entering the apartment, which belied
the concern for safety. The Court notes that it is irrelevant whether the officer had probable cause to effectuate an
arrest based on the smell of marijuana; the inquiry under Chrisman and Bruzzese is whether Legette had been
arrested when the officer followed him into the apartment. Finally, the State did not show that Legette thought he
could refuse entry into his apartment, so the Court does not find that the search was consensual. Because the State
failed to meet its burden of demonstrating that the search in this case fell within a recognized exception to the
warrant requirement, the entry was illegal and the evidence obtained as a result of that entry should have been
suppressed. (pp 16-18)

          JUSTICE SOLOMON, DISSENTING, expresses the view that the officer had probable cause to arrest
Legette because he smelled burned marijuana, that his decision to accompany Legette rather than immediately arrest
him was reasonable, that this accompaniment did not vitiate the probable cause, and that the same policy concerns
for officer safety that apply to arrestees also apply to detainees. In Justice Solomon’s view, the officer’s decision to
allow Legette to retrieve identification rather than immediately place him under arrest mirrors the facts of Chrisman,
and Chrisman is equally applicable to pre-arrest situations as to post-arrest situations.

         The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial.

         CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and TIMPONE
join in JUSTICE FERNANDEZ-VINA’s opinion. Justice SOLOMON filed a separate, dissenting opinion.




                                                           2
                                       SUPREME COURT OF NEW JERSEY
                                         A-12 September Term 2015
                                                  076124

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

JAMES L. LEGETTE (a/k/a JAMES
LEGGETTE, JR. and JAMES
LEGETTE),

    Defendant-Appellant.


         Argued September 13, 2016 – Decided January 12, 2017

         On certification from the Superior Court,
         Appellate Division, whose opinion was
         reported at 441 N.J. Super. 1 (App. Div.
         2015).

         Stefan Van Jura, Deputy Public Defender II,
         argued the cause for appellant (Joseph E.
         Krakora, Public Defender, attorney; Mr. Van
         Jura and Samuel Feder, Assistant Deputy
         Public Defender, on the briefs).

         Steven A. Yomtov, Deputy Attorney General,
         argued the cause for respondent (Christopher
         S. Porrino, Attorney General of New Jersey,
         attorney).


    JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

    The issue on appeal is whether, during an investigatory

stop, it is permissible for a police officer to follow suspects

into their homes and seize evidence.




                                1
    In response to a noise complaint, an officer arrived at

Defendant James L. Legette’s apartment complex, where he

observed defendant standing with another man in a public area.

Because defendant began to walk away when the officer identified

himself, the officer commenced an investigatory stop, asking

defendant for identification.   When defendant offered to

retrieve identification from his apartment, the officer said he

would have to accompany defendant.   While in his apartment,

defendant removed the sweatshirt he was wearing.   The officer

seized the sweatshirt and ultimately discovered a handgun in its

pocket.

    The trial court denied defendant’s motion to suppress the

handgun, and the Appellate Division affirmed.    The lower courts

largely relied on Washington v. Chrisman, 455 U.S. 1, 102 S. Ct.

812, 70 L. Ed. 2d 778 (1982), and State v. Bruzzese, 94 N.J. 210

(1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed.

2d 695 (1984), which concluded that it was reasonable for police

officers to follow arrestees into their homes.

    For the reasons set forth in this opinion, we decline to

extend Chrisman and Bruzzese to detainees.   Although warrantless

entries into the home require probable cause, investigatory

stops require the lower standard of reasonable suspicion.     We

therefore hold that, when conducting an investigatory stop, it



                                 2
is not permissible for an officer to follow suspects into their

homes.

                                  I.

    On the night of January 17, 2012, Somers Point Police

Officer Richard Dill (“Dill”) responded to a noise complaint in

an apartment complex.     Upon arrival, Dill noticed two men

standing on a common porch.     He parked and entered the building

from another direction through a common hallway.      Dill heard

music and loud voices.    As Dill neared the door to the common

porch where he had seen the two men from the parking lot,

defendant opened the door partway.     Dill smelled the odor of

burnt marijuana through the open door.

    Dill walked onto the common porch and identified himself.

Defendant walked away from Dill, heading toward the parking lot.

Dill asked defendant where he was going, and defendant replied

that he was going to his car.    Dill inquired whether defendant

had any identification.    Defendant said that his identification

was in his apartment and volunteered to retrieve it.      Dill told

defendant that he would have to accompany him to his apartment

under the circumstances.     Defendant did not respond and

continued walking upstairs.

    As defendant was walking, Dill noticed a bulge in the

pocket of defendant’s sweatshirt.      He followed defendant into

the bedroom of the apartment, where defendant picked up his

                                   3
wallet, removed his identification, and handed it to Dill.    Dill

and defendant then went into the living room, where Dill radioed

the information from defendant’s identification to dispatch.

    Defendant took off his sweatshirt, handed it to a woman who

was also in the living room, and instructed her to put it in the

bedroom, which she did.   Dill interrupted his radio transmission

and told defendant that he would need to examine the sweatshirt.

Dill and defendant went to the bedroom, where defendant stepped

over the sweatshirt he had been wearing and grabbed another one

from the closet.   Dill picked up the sweatshirt defendant had

been wearing from the floor.

    Dill and defendant returned to the living room, where Dill

resumed his radio transmission regarding the existence of any

outstanding warrants.   Defendant became visibly nervous, so Dill

asked defendant to step outside where Dill’s vehicle, his K-9,

and a backup officer were located.   Outside, Dill asked

defendant to have a seat on the building steps.   Defendant

continued to appear anxious as Dill placed the sweatshirt on the

ground.   Dill informed defendant that he would be handcuffed and

detained while Dill investigated.

    The warrant inquiry revealed no outstanding warrants.

Defendant did not consent to a search of the sweatshirt, so Dill

placed defendant in the back of the patrol vehicle to wait while

Dill conducted a K-9 search for drugs.   Dill got another

                                 4
sweatshirt and a towel from his patrol vehicle and placed them

on the ground next to defendant’s sweatshirt.    The dog put his

nose in defendant’s sweatshirt, grabbed it in its mouth, and

dropped it onto the pavement.   The sweatshirt made a clanking

noise as it hit the ground.   Dill picked up the sweatshirt and

felt a handgun in the pocket, which he seized.    The handgun was

loaded.

    A grand jury indicted defendant on second-degree unlawful

possession of a handgun without a permit, contrary to N.J.S.A.

2C:39-5(b), and second-degree possession of a weapon by a

convicted person, contrary to N.J.S.A. 2C:39-7.

    Defendant filed a motion to suppress, challenging the

validity of the search.   The State argued that Dill had properly

detained defendant due to a reasonable and articulable suspicion

that a crime had been committed, that entry into defendant’s

home was lawful, and that the sweatshirt was in plain view.

    After hearing testimony and considering additional

briefing, the trial court denied defendant’s motion to suppress.

Defendant ultimately pleaded guilty to possession of a weapon by

a convicted person and was sentenced to a term of five years

without parole.

    Defendant appealed the suppression ruling.     The State

conceded on appeal that entering defendant’s residence and

detaining defendant were more than reasonably necessary to

                                 5
investigate whether defendant was in possession of marijuana.

The State asserted -- for the first time on appeal -- that the

evidence should not be excluded under the theory of inevitable

discovery because Dill would have located the handgun if he had

used proper investigatory procedures.

    The Appellate Division affirmed the trial court’s denial of

the suppression motion.   State v. Legette, 441 N.J. Super. 1,

11-12 (App. Div. 2015).   The panel applied Chrisman and

Bruzzese, concluding that “an officer who has lawfully detained

a suspect in an investigatory stop, like an officer who has

lawfully arrested a subject, need not let the suspect out of his

sight or presence during the detention.”   Id. at 20.   We granted

defendant’s petition for certification.    223 N.J. 355 (2015).

                               II.

                                A.

    Defendant argues that the reasonable suspicion necessary to

justify an investigatory stop under Terry v. Ohio, 392 U.S. 1,

88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is never sufficient to

support warrantless entry into a home, which requires a showing

of probable cause.   Defendant stresses that Terry’s exception to

the warrant requirement is narrowly tailored to allow an officer

to search a suspect in a public setting.   Accordingly, defendant

argues that Terry stops must be limited in scope, brief in

duration, and aimed at proving or disproving an officer’s

                                6
suspicion that crime is afoot.    Finally, defendant asserts that

the circumstances of this case present no exigencies supporting

the exigent-circumstances exception to the warrant requirement.

                                 B.

     The State counters that permitting police officers to

accompany a suspect who has been detained in a Terry stop is a

logical extension of Chrisman and Bruzzese because the movements

of a detained suspect pose as valid a safety concern as those of

an arrestee.   The State contends, moreover, that Dill had

probable cause to arrest defendant based on the smell of

marijuana and that the Court should therefore consider the

search to be a search incident to arrest.    Finally, the State

asserts that defendant consented to the warrantless entry, as

demonstrated by defendant’s silence when Dill stated that he

would have to accompany defendant inside the apartment.1

                                 III.




1 The State also argues that discovery of the handgun was
inevitable, because it would have been found pursuant to a
search incident to arrest for possession of marijuana. Because
the State raised this argument for the first time on appeal, we
decline to consider it. State v. Robinson, 200 N.J. 1, 20
(2009) (“[I]t is a well-settled principle that our appellate
courts will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a
presentation is available unless the questions so raised on
appeal go to the jurisdiction of the trial court or concern
matters of great public interest.” (quoting Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973))).
                                  7
    We review the scope of the holdings set forth in Chrisman

and Bruzzese.

                                    A.

    In Chrisman, supra, a police officer stopped a college

student who was carrying a bottle of gin and asked him for

identification.    455 U.S. at 3, 102 S. Ct. at 815, 70 L. Ed. 2d

at 783.   The student “said that his identification was in his

dormitory room and asked if the officer would wait while he went

to retrieve it.”    Ibid.   The officer explained that under the

circumstances, he would have to accompany the student, and the

student replied, “OK.”      Ibid.   While standing in the doorway of

the dormitory room, the officer noticed drugs and drug

paraphernalia lying on a nearby desk.       Id. at 4, 102 S. Ct. at

815, 70 L. Ed. 2d at 783.      The student and his roommate

subsequently consented to a search of the room, which yielded

additional contraband.      Ibid.

    The Supreme Court concluded that it was valid for the

officer to accompany the student to his room and upheld the

seizure of drugs under the “plain view” exception to the Fourth

Amendment.   Id. at 5-8, 102 S. Ct. at 816-17, 70 L. Ed. 2d at

784-86.   The Court found that the officer had placed the student

under lawful arrest; therefore, “[t]he officer had a right to

remain literally at [the student’s] elbow at all times.”       Id. at

6, 102 S. Ct. at 816, 70 L. Ed. 2d at 785.

                                    8
    The Court rejected the claim that exigent circumstances

were required to justify the officer’s decision to follow the

defendant into his room.    Id. at 6, 102 S. Ct. at 816-17, 70 L.

Ed. 2d at 785.   The Court reasoned that “[e]very arrest must be

presumed to present a risk of danger to the arresting officer”

because “[t]here is no way for an officer to predict reliably

how a particular subject will react to [the] arrest.”         Id. at 7,

102 S. Ct. at 817, 70 L. Ed. 2d at 785.      Accordingly, it was

“not ‘unreasonable’ . . . for a police officer, as a matter of

routine, to monitor the movements of an arrested person, as his

judgment dictates, following the arrest.”     Ibid.

                                  B.

    We subsequently adopted the Chrisman rule as the law of New

Jersey.   Bruzzese, supra, 94 N.J. at 234.      In Bruzzese, police

officers went to the defendant’s house to execute an outstanding

arrest warrant for contempt, which was pending in municipal

court.    Id. at 214.   The defendant came downstairs clad in a t-

shirt and pants, but no shoes.    Id. at 215.    When the officers

stated that they intended to bring the defendant in for the

outstanding warrant, the defendant stated “that he wanted to put

on shoes and a jacket before going outside.”      Ibid.   The

officers followed the defendant to his bedroom.       Ibid.     While in

the bedroom, one of the officers noticed a pair of boots with a

distinctive sole matching a boot imprint that had been left at

                                  9
the scene of an unsolved robbery.       Ibid.   The officer seized the

boots.   Ibid.

    Based on the holding in Chrisman, this Court concluded that

the officers in Bruzzese could “monitor the movements of an

arrested person following the individual’s arrest.”       Id. at 232.

In Bruzzese, this Court, like the United States Supreme Court,

stressed that the police officer was permitted to follow the

defendant into his bedroom because the defendant was under

lawful arrest at the time.     Ibid.    In balancing the interests of

public safety against the individual’s privacy interest, this

Court reasoned that “the privacy rights of an individual who is

placed under lawful arrest are diminished,” while “the arresting

police officer is entitled to the protection he or she would

receive under this rule.”      Ibid.

    This Court further noted that there are limitations on a

police officer’s right to accompany an arrestee; however, we

explained that police monitoring must be “objectively

reasonable.”     Id. at 234.   For example, this Court explained

that police officers cannot lead an arrestee from place to place

in an effort to use the arrestee’s presence as a pretext to

search another area.     Id. at 234-35.    Finding no such improper

activity in Bruzzese, this Court concluded that following the

defendant upstairs while he retrieved a jacket and shoes was

reasonable.    Id. at 235.

                                   10
                                 C.

    The holdings in both Chrisman and Bruzzese were expressly

contingent on the fact that the defendants in those cases had

been placed under arrest prior to the officer’s entry into the

residence.    The Supreme Court observed in Chrisman that “the

officer had placed [defendant] under lawful arrest, and

therefore was authorized to accompany him to his room for the

purpose of obtaining identification.”     Chrisman, supra, 455 U.S.

at 6, 102 S. Ct. at 816, 70 L. Ed. 2d at 784 (emphasis added).

Further, the Supreme Court explained that it is reasonable for

an officer “to monitor the movements of an arrested person” due

to a “compelling” need to ensure the officer’s safety and

maintain “the integrity of the arrest.”    Id. at 7, 102 S. Ct. at

817, 70 L. Ed. 2d at 785 (emphasis added).    In balancing the

rights of the officer against those of the defendant, the

Supreme Court concluded that such surveillance does not impinge

upon the privacy rights “of an individual who has been

arrested.”    Ibid. (emphasis added).

    Similarly, we stressed in Bruzzese that an arresting

officer may remain at the suspect’s side “so long as the arrest

is lawful.”   Bruzzese, supra, 94 N.J. at 232 (emphasis added).

In reaching that conclusion, we balanced the interest in

protecting the police officer against the “diminished” privacy



                                 11
rights of “an individual who is placed under lawful arrest.”

Ibid. (emphasis added).

    The dissent, contrary to Rule 1:36-3, relies on unpublished

documents not part of this record to create a scenario as to

what the outcome of the stop in Chrisman, supra, 455 U.S. at 1,

102 S. Ct. at 812, 70 L. Ed. 2d at 778, may have been.    Based on

conjecture, the dissent argues that the holding in Chrisman

applies in situations when an individual is detained.    The

holding in Chrisman is clear and unambiguous.    It applies only

when an individual has been arrested.     See id. at 6, 102 S. Ct.

at 816, 70 L. Ed. 2d at 784 (stating that officer had placed

defendant “under lawful arrest, and therefore was authorized to

accompany him to his room” (emphasis added)).    To interpret

Chrisman otherwise also defies our reasoning in Bruzzese, in

which we unequivocally conditioned a police officer’s right to

“remain at [a defendant’s side]” upon placing the defendant

under “lawful arrest.”    Bruzzese, supra, 94 N.J. at 232.

    The flaw in the dissent’s argument is further evidenced by

its reliance on the Appellate Division’s holding.    See post at

___ (slip op. at ___).    The Appellate Division did not find that

Chrisman and Bruzzese applied to non-arrest cases.    Rather, it

reasoned that the holdings in those cases should be extended to

pre-arrest detainees.     See Legette, supra, 441 N.J. Super. at 19

(acknowledging that “the Supreme Court in Chrisman refers to the

                                  12
student as having already been placed under arrest” but

concluding that “we do not think that this characterization

makes Chrisman any less applicable to a pre-arrest situation”

(quoting United States v. Roberts, 612 F.3d 306, 308, 310 n.4

(5th Cir.), cert. denied, 562 U.S. 1116, 131 S. Ct. 839, 178 L.

Ed. 2d 570 (2010)).

    We conclude that Chrisman and Bruzzese apply only when a

suspect has been arrested due to the diminished expectation of

privacy of an individual under arrest.   See Chrisman, supra, 455

U.S. at 7, 102 S. Ct. at 817, 70 L. Ed. 2d at 785; Bruzzese,

supra, 94 N.J. at 232.   Because defendant in this case was not

an arrestee but rather a detainee, Chrisman and Bruzzese are not

directly on point.    We must therefore determine whether the

balance of interests supports Officer Dill’s actions here.

                                IV.

    The question of whether Chrisman and Bruzzese should be

extended to allow police to accompany detainees as well as

arrestees into their homes is a purely legal question.

Accordingly, we conduct a de novo review.   State v. Rockford,

213 N.J. 424, 440 (2013).

                                 A.

    The Federal and New Jersey State Constitutions guarantee

the right to be free from unreasonable searches and seizures.

U.S. Const. amend. IV; N.J. Const. art. 1, ¶ 7.   In accord with

                                 13
those provisions, a lawful search must be prefaced by a warrant

obtained upon probable cause “unless [the search] falls within

one of the few well-delineated exceptions to the warrant

requirement.”   State v. Maryland, 167 N.J. 471, 482 (2001)

(alteration in original) (quoting State v. Citarella, 154 N.J.

272, 278 (1998)).   If no warrant was sought, the State bears the

burden of demonstrating the validity of the search.    State v.

Pineiro, 181 N.J. 13, 19-20 (2004).

    The State’s burden is particularly heavy when the search is

conducted after warrantless entry into a home.    We have

generally “applied a more stringent standard of the Fourth

Amendment to searches of a residential dwelling.”     State v.

Edmonds, 211 N.J. 117, 129 (2012) (quoting Bruzzese, supra, 94

N.J. at 217).   The home bears a “special status” because

“unlawful, warrantless searches and seizures within the home are

[the] ‘chief evil against which the wording of the Fourth

Amendment is directed.’”   State v. Johnson, 193 N.J. 528, 553-54

(2008) (quoting Welsh v. Wisconsin, 477 U.S. 740, 748, 104 S.

Ct. 2091, 2097, 80 L. Ed. 2d 732, 742 (1984)).

    Outside the home, courts have adjudged certain warrantless

police encounters as permissible, including street-level

investigatory stops, also known as Terry stops.   Maryland,

supra, 167 N.J. at 486 (citing Terry, supra, 392 U.S. at 22, 88

S. Ct. at 1880, 20 L. Ed. 2d at 906).   We must determine whether

                                14
the public safety concerns underpinning investigatory stops can

overcome the special status accorded to the home.

                                B.

    An investigatory stop is constitutionally lawful “if it is

based on ‘specific and articulable facts which, taken together

with rational inferences from those facts,’ give rise to a

reasonable suspicion of criminal activity.”     State v. Rodriguez,

172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21,

88 S. Ct. at 1880, 20 L. Ed. 2d at 906).     We have acknowledged

that when a person is detained pursuant to an investigatory

stop, “a person’s freedom of movement is restricted.”     State v.

Elders, 192 N.J. 224, 246 (2007).     Further, a detainee may be

subjected to the “invasion of privacy that occurs in a pat-down

of a person’s body.”   State v. Smith, 134 N.J. 599, 619 (1994).

Nevertheless, because the “[r]easonable suspicion necessary to

justify an investigatory stop is a lower standard than the

probable cause necessary to sustain an arrest,” State v.

Stovall, 170 N.J. 346, 356 (2002), there are certain limitations

on the scope of such stops.

    Terry stops are “narrowly drawn . . . to permit a

reasonable search for weapons for the protection of the police

officer, where he has reason to believe that he is dealing with

an armed and dangerous individual.”     Terry, supra, 392 U.S. at

27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.     Thus, we have

                                15
established that “the investigative methods employed [in a Terry

stop] should be the least intrusive means reasonably available

to verify or dispel the officer’s suspicion in a short period of

time.”   State v. Privott, 203 N.J. 16, 31 (2010) (alteration in

original) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.

Ct. 1319, 1325-26, 75 L. Ed. 2d 229, 238 (1983)).

    Because officers are limited to taking self-protective

measures during investigatory stops, we find that Chrisman and

Bruzzese do not support warrantless entries into detainees’

homes.   We therefore decline to expand the scope of

investigatory stops to encompass police entry into the home.     We

conclude that Chrisman and Bruzzese apply only to cases in which

a suspect has been arrested prior to the officer’s entry into

the home.   See Bruzzese, supra, 94 N.J. at 232.

                                V.

    The facts of this case support our legal conclusion.      The

State argues that it was reasonable for Dill to accompany

defendant into his apartment because defendant could have

obtained a weapon in the apartment that could later have been

used against the officer.   The State also asserts that Dill had

authority to monitor defendant to prevent flight.

    While we recognize that officer safety is a concern during

any encounter with a suspect, it is less compelling under the

facts here.   By failing to conduct a routine investigatory pat-

                                16
down before entering the apartment, which would have been proper

under Terry, Dill belied the concern for safety.      Accordingly,

under the circumstances, Dill’s entry into defendant’s home did

not promote public safety.

    The State also contends that the smell of marijuana gave

Dill probable cause to arrest defendant.      Based on that probable

cause, the State argues that it was reasonable for Dill to

accompany defendant into his home as Dill would an arrestee.

    It is irrelevant whether Dill had probable cause to

effectuate an arrest; the inquiry under Chrisman and Bruzzese is

whether defendant had been arrested when Dill followed defendant

into his home.    Here, it is not disputed that defendant had not

been placed under arrest when Dill followed defendant into the

apartment.    The warrantless entry was thus improper, and the

evidence seized as a result of that unlawful entry should be

suppressed.   State v. Gibson, 218 N.J. 277, 298 (2014).

    The dissent cites two cases in support of the claim that

Officer Dill’s conduct was appropriate because there was

probable cause for an arrest:    State v. Nishina, 175 N.J. 502

(2003), and State v. Vanderveer, 285 N.J. Super. 475 (App. Div.

1995).   See post at ___ (slip op. at ___).    Neither Nishina nor

Vanderveer involved evidence seized after police entry of the

defendants’ homes, however.     Nishina, supra, 175 N.J. at 508,

involved a search of a motor vehicle.    And Vanderveer, supra,

                                  17
285 N.J. Super. at 477, involved a search on an open porch.

Those cases therefore do not justify Officer Dill’s conduct

here.

       The State asserts, finally, that there was consent for Dill

to enter the apartment.    The factual record before us does not

support this conclusion.    To establish that defendant waived his

Fourth Amendment rights, the State must show that defendant had

“knowledge of the right to refuse consent.”    State v. Johnson,

68 N.J. 349, 353-54 (1975).    Dill exerted his authority over

defendant by stopping defendant from walking toward the parking

lot.    Subsequently, defendant did not respond when Dill

indicated that he would have to accompany defendant into the

apartment.    Under these circumstances, the State has not shown

that defendant thought he could refuse entry into his apartment.

Therefore, we do not find that the search was consensual.

       In sum, we find that the warrantless entry into defendant’s

home was justified neither by the fact that defendant had been

detained in the course of a Terry stop, nor by consent.     Because

the State has failed to meet its burden of demonstrating that

the warrantless entry fell within a recognized exception to the

warrant requirement, we hold that the entry was illegal and that

the evidence obtained as a result of that entry should have been

suppressed.

                                 VI.

                                 18
    For the reasons set forth above, the judgment of the

Appellate Division is reversed and the case is remanded for a

new trial.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’s opinion.
Justice SOLOMON filed a separate, dissenting opinion.




                               19
                                       SUPREME COURT OF NEW JERSEY
                                         A-12 September Term 2015
                                                  076124

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

JAMES L. LEGETTE (a/k/a JAMES
LEGGETTE, JR. and JAMES
LEGETTE),

    Defendant-Appellant.


    JUSTICE SOLOMON, dissenting.

    The majority’s decision is based upon the notion that the

holdings in Washington v. Chrisman, 455 U.S. 1, 102 S. Ct. 812,

70 L. Ed. 2d 778 (1982), and State v. Bruzzese, 94 N.J. 210

(1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed.

2d 695 (1984), were “expressly contingent” on the defendants’

arrest prior to the officers following them inside their home.

However, this distinction disregards the facts of both cases and

the reasoning behind their respective findings.   The Appellate

Division’s opinion, on the other hand, is consistent with

Chrisman and Bruzzese.   Therefore, I respectfully dissent.

    The facts of Chrisman, as explained by the State of

Washington’s trial and appellate courts, indicate that the

defendant was detained, like defendant here, and was not placed

under arrest until the drugs were found in his dorm room.     On

                                1
the evening of January 21, 1978, Officer Richard Daugherty of

the Washington State University Police Department approached a

university dormitory to investigate an unrelated matter.       State

v. Chrisman, 600 P.2d 1316, 1317 (Wash. Ct. App. 1979).     At the

same time, Carl Overdahl, defendant Chrisman’s roommate, was

leaving the same dormitory while carrying a half gallon of gin.

Ibid.   Believing Overdahl to be under the legal drinking age of

21, Officer Daugherty asked him for identification.    Ibid.

Overdahl explained that his identification was in his dorm room

and asked Officer Daugherty to wait while he retrieved it.

Ibid.   The parties’ briefs to the Washington Supreme Court

explain that “Officer Daugherty indicated to [] Overdahl that

since [he] was under police detention, [Officer Daugherty] would

not allow him to leave without an officer accompanying him to

his room.” (emphasis added).   Overdahl did not object to the

police escort.   Chrisman, supra, 455 U.S. at 3, 102 S. Ct. at

815, 70 L. Ed. 2d at 783.   It was not until Officer Daugherty

and Overdahl were waiting for the elevator that Overdahl

admitted to being nineteen years old.    Chrisman, supra, 600 P.2d

at 1317.

    When they arrived at Overdahl’s room, Officer Daugherty

first only leaned against the doorway.    Ibid.   At that point,

the officer saw Neil Chrisman, who appeared “visibly nervous”

when he noticed the officer.   Ibid.    Officer Daugherty also

                                 2
observed a tray holding marijuana seeds and a pipe he believed

was used for smoking marijuana sitting on a desk.      Ibid.    The

officer entered the room and obtained Overdahl’s and Chrisman’s

consent to search.     Ibid.   The search yielded more drugs.    Ibid.

     It is important to highlight that the Washington Superior

Court record does not reflect the moment when Overdahl was

placed under arrest.    Notably, while Overdahl was ultimately

charged with multiple drug offenses, he was neither charged with

nor tried for the alcohol-related offense.      Id. at 1318.

     Most critically, the trial court’s Memorandum Opinion

declined to find Overdahl’s original detention to be a formal

arrest.   In his motion to suppress before the trial court,

Overdahl argued that the drugs should be suppressed because

Officer Daugherty did not give him Miranda2 warnings before

asking for identification and following him to his room.        The

court noted that Officer Daugherty had “probable cause to make a

formal arrest but instead” chose to “offer[] the defendant an

opportunity to establish his innocence by proof of age.”        The

court found that Overdahl was not prejudiced by the lack of

Miranda warnings because his identification would have revealed

his true age and “[t]he alternative would have been his formal




1  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
                                   3
arrest and detention until he could be identified.”   (emphasis

added).

    The underlying facts upon which the Court’s holding in

Chrisman was made are fundamentally identical to the facts here.

When defendant opened the door to the common porch area, the

officer detected a strong odor of burnt marijuana.    At that

moment -- based upon the scent emanating from the hallway where

only two people were standing, including defendant -- Officer

Dill had probable cause to believe that a drug offense had been

committed.   This is established by our decision in State v.

Walker, which the Appellate Division correctly highlighted,

wherein we held that “the smell of marijuana itself constitutes

probable cause that a criminal offense has been committed and

that additional contraband might be present.”   213 N.J. 281, 290

(2013) (quoting State v. Nishina, 175 N.J. 502, 516-17 (2003)).

Both in Chrisman and here, the officers had probable cause to

arrest the individuals.   While neither defendant was placed

under arrest yet, the officers had the right, under the

circumstances, to ask for identification.   When defendant

explained that his identification was in his apartment -- like

in Chrisman, where the defendant’s identification was inside his

dorm room -- the officer reasonably decided to follow him

inside.



                                 4
    In other words, as in Chrisman, where Officer Daugherty

chose not to “formal[ly] arrest and det[ain]” Overdahl even

though he was below the legal drinking age and was holding a

half gallon of gin, the officer here did not stop, frisk, and

“formal[ly] arrest and det[ain]” defendant.      Instead, the

officer followed defendant to his apartment and ultimately

discovered the firearm, just as Officer Daugherty accompanied

Overdahl to his dorm room and discovered the drugs.     Therefore,

contrary to the majority’s assertion, Chrisman is factually on

point with the case before us, and the Appellate Division should

be affirmed.

    Our decision in Walker, supra, refers to two cases that

provide further support for Officer Dill’s conduct here,

Nishina, supra, 175 N.J. 502, and State v. Vanderveer, 285 N.J.

Super. 475 (App. Div. 1995).    In Nishina, supra, an officer was

conducting a routine patrol and became suspicious when he

observed the defendant and three companions walking in a

secluded area three hundred feet from an unoccupied school, late

at night.    175 N.J. at 506-07.   The officer asked the defendant

for identification, including “driver’s license, registration,

and insurance card,” to confirm who owned the car parked across

the street, and “to make sure that the car . . .     wasn’t

stolen.”    Id. at 507 (omission in original).   After receiving

the requested materials, the officer “smelled a real strong odor

                                   5
of burnt marijuana coming from [the defendant’s] clothes.”       Id.

at 508.   The officer subsequently patted down the defendant,

discovered rolling papers, and saw a bag in the defendant’s

vehicle that he suspected to contain marijuana.    Ibid.   The

officer then searched the vehicle and found marijuana.     Id. at

508-09.   This Court found that the officer “had probable cause

to believe that [the] defendant possessed illegal narcotics once

he detected an odor of marijuana on [the] defendant’s clothing.”

Id. at 517.   Further, the bag, along with the scent of marijuana

and drug paraphernalia, provided probable cause to suspect that

the vehicle contained illegal drugs, and, thus, a warrantless

search inside was permissible.   Id. at 517-19.

    Similarly, in Vanderveer, supra, the panel found that the

warrantless search of the defendant, who was alongside N.R. --

the subject of an arrest warrant the officers were executing --

was permissible after officers detected the odor of marijuana.

285 N.J. Super. at 481.   While patting down the defendant, the

officers found narcotics.   Id. at 477.   The appellate panel

concluded that “[w]hen no contraband was found on N.R., . . .

the officer’s attention naturally turned to [the] defendant.

Probable cause existed that a criminal offense had been

committed and that additional contraband might be present.

[Thus,] Officer McDonald was permitted to search for contraband

of the offense.”   Id. at 479.

                                 6
    Based on Nishina and Vanderveer, it is clear that the

officer here had probable cause.       As defendant was walking,

Officer Dill observed a bulge in his sweatshirt.       Because the

officer did not know if the bulge was created by a weapon or by

narcotics, he could have conducted an immediate search, but

instead followed defendant to his apartment for identification.

This decision, given the circumstances, does not invalidate the

subsequent seizure of the weapon because “probable cause that a

criminal offense ha[d] been committed and that additional

contraband might be present” did not disappear.       Walker, supra,

213 N.J. at 290.    Rather, the officer decided to offer defendant

an opportunity to retrieve his identification.       As the trial

court stated in Chrisman, “It is difficult to find criticism of

police conduct where an officer has probable cause to make a

formal arrest but instead of doing so offers the defendant an

opportunity to establish his innocence by proof of age.”

(emphasis added).   That the individual must be placed under

formal arrest first, as the majority holds, is an inappropriate

limitation on Chrisman and a misunderstanding of the dangerous

circumstances in which these situations arise.

    In addition, the facts and reasoning behind our holding in

Bruzzese support the conclusion that Officer Dill’s conduct was

reasonable.   This Court found in Bruzzese that, despite using an

arrest warrant as a pretext, the officers acted reasonably --

                                   7
consistent with the Fourth Amendment of the United States

Constitution -- in following the defendant to his bedroom and

seizing evidence of an unrelated burglary.    Bruzzese, supra, 94

N.J. at 216, 235.

       The Court held that “once a defendant is placed under

lawful arrest, the arresting officer has the right to remain at

his side and to follow him wherever he chooses to go.”       Id. at

232.    We reached this conclusion by balancing the interests of

public safety -- “the protection of policemen” -- against the

intrusion upon privacy and inconvenience to an individual.

Ibid.   This Court stressed how Chrisman’s focus on protecting

the police was equally important in its decision.    Id. at 231.

The Court’s rationale for adopting Chrisman and finding that the

officers acted reasonably given the circumstances applies in

both post- and pre-arrest situations.    Unfortunately, in

balancing the interests of public safety against “the protection

of policemen,” the majority has chosen to discount protection of

the police officer here.

       Whether the individual is arrested or detained, I find

there to be an equally present need to protect the police from

dangerous situations.    As explained, Officer Dill had probable

cause to believe that defendant was involved in criminal

conduct.   To let defendant retrieve his identification from his

apartment without supervision would expose the officer to risks

                                  8
of a multitude of dangerous or deadly outcomes.         As the Bruzzese

Court acknowledged, “[t]he proliferation of handguns poses a

constant danger to law enforcement officers.        That danger

requires that each patrolman should have the right to monitor

the movements of an arrestee to guard against the possibility

that he could secure a hidden weapon.”         Id. at 233.   I fail to

see how this danger is not present in the situation before us

today simply because defendant had been detained and not

arrested before being escorted to his apartment.

    As in Chrisman, Officer Dill reasonably suspected

criminality was afoot, so he detained defendant and allowed him

to retrieve identification with supervision.        The majority hints

that Officer Dill should have conducted a pat-down of defendant

the moment he was introduced to the suspicious scenario.          While

this may be true in hindsight, an officer should not be so

analyzed given his need to make instantaneous decisions.

    This is particularly true where, as here, his ultimate

decision was a reasonable one.      “There are numerous situations

that arise in law enforcement that are unique and call for a

special response.”    Id. at 228.       Even the Bruzzese holding made

clear that a search will not be found unreasonable per se just

because “the police officer deviates from standard operating

procedure.”   Ibid.   Instead, Bruzzese “adopt[ed] the rule that a

deviation from standard police practice should be examined on

                                    9
its merits to determine whether it constitutes an unreasonable

act.”   Ibid.   Indeed, in Bruzzese, where the officer’s tactics

were manipulative and coy, the Court focused on the objective

reasonableness of his conduct under the circumstances.       Id. at

227-39.     Officer Dill’s conduct was reasonable under Bruzzese,

was not questioned by the trial court, and is consistent with

Chrisman.

    My position is perfectly summarized by the Appellate

Division as follows:

            Federal Courts of Appeals have recognized that
            “[a]lthough the Supreme Court [in Chrisman]
            refers to the student as having already been
            placed   under   arrest   when   the   officer
            accompanied him back to his dorm room to
            retrieve identification, we do not think that
            this characterization makes Chrisman any less
            applicable” to a pre-arrest situation.

            [State v. Legette, 441 N.J. Super. 1, 19 (App.
            Div. 2015) (alterations in original) (quoting
            United States v. Roberts, 612 F.3d 306, 310
            n.4 (5th Cir.), cert. denied, 562 U.S. 1116,
            131 S. Ct. 839, 178 L. Ed. 2d 570 (2010)).]

Our jurisprudence warrants a similar conclusion in this case.         I

would affirm the judgment of the Appellate Division.




                                  10
