Consent-once-removed doctrine is time sensitive – State v. Penalber

The so-called “consent-once-removed” doctrine was developed by the New Jersey Supreme Court in State v. Henry 133 N.J. 104 (1993). This exception to the warrant requirement generally applies when an undercover police officer has been invited into a dwelling and while inside develops probable cause to arrest the defendant. The doctrine permits the undercover officer to leave the dwelling and return a short time later with a sufficient number of back-up officers to effect the arrest. Under the doctrine, the consent given for the initial entry by the undercover officer is deemed to continue for a short time and will render a subsequent warrantless entry by the arrest team as consensual.

In today’s Appellate Division decision, State v. Penalber, two undercover police officers made a purchase of CDS from a pair of drug dealers inside an apartment house common hallway. After completing the sale, the two officers and their arrest team back-up returned to the police station to plan their next move. After about 30 to 35 minutes, the police officers returned in force to the apartment house without either an arrest warrant or a search warrant. Upon arrival, they saw one of the drug dealers inside an apartment through an open door. The police entered the apartment and effected the arrest of the drug dealer as well as the defendant who was processing cocaine in another room of the apartment.

In holding that the evidence seized from the apartment be suppressed, the Court found that the “consent-once-removed” exception to the warrant requirement did not apply in this case due to the length of time (30 to 35 minutes) that passed between the initial consensual entry by the undercover officers and the subsequent entry and search by the arrest team.

This case also has a detailed discussion of the expectation of privacy in apartment house common areas and a detailed review of the law related to warrantless entries of residences.

Download a copy of State v. Penalber.

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