Police May Seize Evidence Following Emergency Home Entry – State v. O’Donnell

[07/02/09 – 11:14 pm] In this morning’s Appellate Division decision in State v. O’Donnell, the Court held that police officers who make an emergency entry into a residence may, without a search warrant, seize criminal evidence they inadvertently discover in plain view while attending to the purported emergency. In addition, the Court held, for the first time, that New Jersey police may subsequently re-enter the property shortly after discovering the evidence and seize it without a search warrant.

The facts in O’Donnell involve a police response to a 9-1-1 call that reported a six-year-old child had stopped breathing. Initial police responders located the child who appeared to have died. The police also noted in plain view near the child’s body a variety of items in plain view that appeared to have criminal evidentiary value. Rather than seize these items immediately, the police arrested the defendant, removed her to the police station, secured the crime scene and awaited the arrival of homicide investigators from the prosecutor’s office. The homicide investigators arrived 40 minutes later, entered the residence without a search warrant and seized the evidence.

The Appellate Division affirmed the trial court’s denial of a motion to suppress the seized evidence, holding that the police were lawfully in the view area when they made their observations. Moreover, the subsequent arrival of the homicide investigators and entry without a search warrant was reasonable. This was because the second entry was nothing more than a continuation of the initial entry into the residence by the police.

Download a copy of State v. O’Donnell.

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