Denise Brown v. State of New Jersey (076656) (Cumberland County and Statewide) , 230 N.J. 84 ( 2017 )


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  •                                                      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.)
    Denise Brown v. State of New Jersey (A-71-15) (076656)
    Argued January 31, 2017 -- Decided July 25, 2017
    LaVecchia, J., writing for the Court.
    This appeal concerns the applicability of qualified immunity to a claim brought under the New Jersey Civil
    Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, against a police detective named in his individual and official capacity.
    The events underlying this appeal relate to a State Police investigation of an October 2008 home invasion.
    According to witnesses, two men forcibly entered a home, stole belongings, and fled in a blue BMW. A few weeks
    later, plaintiff Denise Brown loaned her blue BMW to her boyfriend, Carlos Thomas. The State Police suspected
    that Thomas was involved in the burglary. Officers conducted a traffic stop, arrested Thomas for driving with a
    suspended license, and impounded Brown’s vehicle. On November 20, Detective Eskridge searched Brown’s car
    and found contraband and items linking the car to the home invasion. The State Police received a tip that Thomas
    had given Brown a locket reported as stolen during the break-in. The locket was not found in the search of Brown’s
    car. As a result, Detective Eskridge determined that the investigation should include a search of Brown’s home.
    Detective Eskridge decided to ask Brown if she would consent to a search of her home. Detective John
    Steet of the State Police accompanied him. The detectives arrived at Brown’s apartment, told Brown that they had
    received a tip that Thomas had given her a stolen locket and asked if she would consent to a search of her home for
    the item. She immediately refused and told the officers to obtain a warrant if they wanted to search her apartment.
    Detective Steet testified that Brown’s refusal to consent after she learned that the detectives were looking
    for a stolen locket made him fear that Brown would destroy evidence of the locket if she were permitted to enter the
    apartment alone. To prevent that possibility, the detectives told Brown that she could either remain outside the
    apartment, which would be secured by the officers from the outside, or enter the apartment accompanied by a police
    escort. Both detectives testified that their offer to secure the premises in either of those two ways was consistent
    with State Police training and approved by a supervisor at the State Police who had been contacted.
    Brown chose to enter the apartment, and Detective Steet followed her in. Detective Eskridge left to obtain
    a warrant. Other officers arrived an hour later. The officers remained in the kitchen, with Brown, while awaiting
    Eskridge’s return. Detective Eskridge, armed with a search warrant, returned and searched the apartment.
    Brown filed a complaint against the State of New Jersey, Detectives Steet and Eskridge, and other officers.
    Defendants raised qualified immunity as a defense. Defendants’ motion for summary judgment was denied as to the
    State Police and Detective Steet. The jury returned a verdict in favor of defendants. The Appellate Division
    reversed as to whether Detective Steet was entitled to qualified immunity. 
    442 N.J. Super. 406
    , 410-11 (App. Div.
    2015). The panel concluded that Detective Steet acted unconstitutionally by entering Brown’s home without a
    warrant and identified the warrantless entry as a clear violation of established precedent. The Court granted the
    Attorney General’s petition for certification. 
    225 N.J. 339
    (2016).
    HELD: In light of the context in which these circumstances arose—i.e., the lack of clarity in the law governing the
    lawful means by which law enforcement may secure a home pending issuance of a warrant and, significantly, that law’s
    intersection with the law governing the exigent circumstances exception to the warrant requirement—defendant did not
    violate a “clearly established” right when he entered Brown’s home to secure it, and qualified immunity applies.
    1. Whether a governmental official is entitled to qualified immunity requires inquiries into whether: (1) the facts,
    taken in the light most favorable to the party asserting the injury show the officer’s conduct violated a constitutional
    right; and (2) that constitutional right was clearly established at the time that defendant acted. (pp. 15-17)
    2. Ordinarily, application of the defense of qualified immunity is a legal question for the court rather than the jury.
    The record does not clearly indicate that the trial court made a ruling as to the legality of the initial entry into
    Brown’s apartment prior to trial. In the future, it would be more helpful for proceedings to identify with
    transparency the reasons for delaying a decision on qualified immunity. (pp 17-19)
    3. Brown alleges that the police entry into her apartment violated the right of New Jerseyans “to be secure in their
    persons, houses, papers, and effects, against unreasonable searches and seizures.” N.J. Const. art. I, ¶ 7. Under that
    provision, a warrantless search is presumptively invalid unless the search falls within one of the few well-delineated
    exceptions to the warrant requirement. One exception is a search justified by probable cause and exigent
    circumstances. The Attorney General has expressly conceded that, on these facts, “the officers could not have relied
    on exigent circumstances to search Brown’s home while they awaited the warrant.” (pp. 19-20)
    4. Instead, the Attorney General argues that the entry was lawful under United States Supreme Court case law that
    has specifically addressed the propriety of securing premises from within to preserve evidence while a search
    warrant was sought. In a 1984 case, the United States Supreme Court splintered on that pertinent issue. Segura v.
    United States, 
    468 U.S. 796
    (1984). Confusion engendered by Segura was alleviated to some degree by the
    Supreme Court’s decision in Illinois v. McArthur, 
    531 U.S. 326
    (2001), which held that a police officer was justified
    in temporarily preventing a defendant from entering his home until a search warrant issued. To the extent that
    Segura and McArthur can be argued to justify a discrete set of warrantless home entries pending receipt of a
    requested warrant, they do so specifically in connection with “a plausible claim of specially pressing or urgent law
    enforcement need, i.e., ‘exigent circumstances.’” 
    Id. at 331.
    (pp. 20-24)
    5. In the seven years between McArthur and the conduct at issue in this case, the New Jersey Supreme Court did not
    opine on the constitutionality of seizing a home by securing it and preventing all access, or alternatively entering it
    with the occupant, while awaiting a search warrant. Appellate court decisions that considered the issue have not
    advanced a uniform interpretation of the law. The Court has recently touched on issues presented in Segura and
    McArthur. State v. Wright, 
    221 N.J. 456
    (2015); State v. Legette, 
    227 N.J. 460
    (2017). That guidance cannot
    inform the analysis of the conduct in this case because it came years after the contested home entry. (pp. 24-28)
    6. As of November 20, 2008, precedent was not sufficiently clear to support a conclusion that Detective Steet
    violated clearly established law when he entered Brown’s home to secure it. And although police department
    policies do not hold compelling weight in a qualified immunity analysis, Detective Steet’s reliance on State Police
    training and policy is informative when determining the reasonableness of his conduct. Detective Steet is entitled to
    qualified immunity as to Brown’s NJCRA claim because regardless of whether his conduct amounts to a violation of
    a constitutional right, that right was not clearly established at the time that he acted. (pp. 28-35)
    7. The Court adds guidance going forward. In a case of true exigency and probable cause, the police can enter a
    dwelling. However, police-created exigency designed to subvert the warrant requirement has long been rejected as a
    basis to justify a warrantless entry into a home. Further, invocation of a person’s right to refuse an officer’s request
    for a consent search is not probative of wrongdoing and cannot be the justification for the warrantless entry into a
    home. In the future, law enforcement officials may not rely on McArthur to enter an apartment to secure it while
    awaiting a search warrant. Although McArthur does not explicitly permit or forbid entry into a home under those
    circumstances, this ruling makes clear that officers may not do so. They must get a warrant and, if reasonably
    necessary, may secure the apartment for a reasonable period of time from the outside. (pp. 35-37)
    The judgment of the Appellate Division is REVERSED, and the trial court’s dismissal of this action
    against Detective Steet is REINSTATED.
    JUSTICE ALBIN, DISSENTING, notes that in the wake of McArthur, courts understood, as they always
    have, that the securing of a home—awaiting a warrant application—cannot be justified absent exigent
    circumstances. According to Justice Albin, Brown had a clearly established right to remain secure in her home,
    pending the arrival of a warrant, given the absence of any true exigent circumstances to justify a seizure of her
    apartment. Detective Steet therefore is not entitled to the protection of qualified immunity, in Justice Albin’s view.
    CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and
    TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
    2
    SUPREME COURT OF NEW JERSEY
    A-71 September Term 2015
    076656
    DENISE BROWN,
    Plaintiff-Respondent,
    v.
    STATE OF NEW JERSEY and JOHN
    STEET, DETECTIVE (NJSP), both
    in his individual and
    official capacity as New
    Jersey State Police
    Detective,
    Defendants-Appellants,
    and
    RICK FUENTES, COLONEL, both
    in his individual and
    official capacity as
    Superintendent of New Jersey
    State Police, CHRISTIAN
    ESKRIDGE, TROOPER (NJSP),
    both in his individual and
    official capacity as New
    Jersey State Trooper, 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
    1
    and official capacity as
    Vineland Police Officer,
    Defendants.
    Argued January 31, 2017 – Decided July 24, 2017
    On certification to the Superior Court,
    Appellate Division, whose opinion is
    reported at 
    442 N.J. Super. 406
    (App. Div.
    2015).
    David S. Frankel, Deputy Attorney General,
    argued the cause for appellant (Christopher
    S. Porrino, Attorney General, attorney;
    Melissa H. Raksa, Assistant Attorney
    General, of counsel).
    Carl D. Poplar argued the cause for
    respondent (The Riback Law Firm, attorneys;
    Mr. Poplar and William A. Riback, on the
    briefs).
    Rebecca J. Livengood argued the cause for
    amicus curiae American Civil Liberties Union
    of New Jersey (Edward L. Barocas, Legal
    Director, attorney; Ms. Livengood, Mr.
    Barocas, Alexander R. Shalom, and Jeanne M.
    LoCicero, on the brief).
    JUSTICE LaVECCHIA delivered the opinion of the Court.
    This appeal concerns the applicability of qualified
    immunity to a claim brought under the New Jersey Civil Rights
    Act (NJCRA), N.J.S.A. 10:6-1 to -2, against a State Police
    detective named in his individual and official capacity.1
    1  One defendant remains in this matter. All other defendants
    have been dismissed and all federal claims, which had been
    removed to federal court, were dismissed with prejudice.
    2
    Plaintiff Denise Brown filed this NJCRA action claiming
    that her state constitutional rights were violated in 2008 when
    the defendant State Police officer accompanied her into her
    apartment, without a warrant and without her consent, in order
    to secure the premises while awaiting the issuance of a search
    warrant.   Given the options, Brown had declined to grant consent
    to search her apartment to the two officers who were present and
    refused to allow the officers to secure the apartment from
    outside.   The parties agree that there was probable cause to
    believe that Brown had evidence in her home and, in fact, a
    search warrant was obtained later that day.    The officers were
    in search of evidence of a burglary for which Brown’s boyfriend
    was a suspect, and the officers had reason to believe that a
    stolen locket necklace had been given to Brown.
    To determine whether qualified immunity applies here, two
    inquiries are pertinent:    (1) were plaintiff’s constitutional
    rights violated when the officers insisted that plaintiff be
    accompanied by an officer inside her apartment in order to
    secure the premises and its contents while awaiting the search
    warrant, and (2) was the constitutional right being violated
    clearly established at the time so that any reasonable officer
    acting competently in the circumstances would have known of the
    constitutional violation.    The second prong of the inquiry
    shields a law enforcement officer who has engaged in a violation
    3
    but does so when acting reasonably under color of law.    However,
    if the officer knew, or objectively should have reasonably
    known, that he was engaged in a violation of a clear
    constitutional right, then his unreasonable behavior disentitles
    the officer to immunity from liability for his actions.
    In reviewing the actions that took place in 2008, we
    declare them to be inconsistent with the protections in Article
    I, Paragraph 7 of our State Constitution.   A law enforcement
    officer, without a warrant and without consent, may not lawfully
    insist on entering a residence based on an assertion that
    exigent circumstances require the dwelling to be secured.
    However, in light of the context in which these
    circumstances arose -- i.e., the lack of clarity in the law
    governing the lawful means by which law enforcement may secure a
    home pending issuance of a warrant and, significantly, that
    law’s intersection with the law governing the exigent
    circumstances exception to the warrant requirement -- we
    conclude that defendant did not violate a “clearly established”
    right when he entered Brown’s home to secure it.   Therefore, we
    hold that qualified immunity applies and that Brown’s claim
    against the remaining defendant officer was properly dismissed
    by the trial court.
    I.
    A.
    4
    This matter proceeded to trial.    Although the defense of
    qualified immunity was discussed at various points during the
    proceedings, the issue was not fully resolved pre-trial because
    the court sent to the jury disputed factual matters that were
    relevant to the issue before determining the qualified immunity
    question.   We therefore recite the facts as presented and found
    at trial.
    The events underlying this appeal relate to a State Police
    investigation of a Cape May County home invasion that occurred
    in October 2008.   According to victims and eyewitnesses, two men
    with handguns forcibly entered a home, stole jewelry and other
    belongings, and fled in a blue BMW, hauling away stolen goods in
    a black drawstring bag.
    A few weeks later, on November 12, 2008, plaintiff Denise
    Brown loaned her blue BMW to her boyfriend, Carlos Thomas.       At
    the time, the State Police suspected that Thomas was involved in
    the burglary.   On that date, officers of the Vineland Police
    Department conducted a traffic stop of the blue BMW, which
    Thomas was driving, arrested Thomas for driving with a suspended
    license, and impounded Brown’s vehicle.    Later that day, the
    State Police charged Thomas in connection with his alleged
    involvement in the home invasion.    The same day, a State Police
    representative notified Brown of Thomas’s arrest and that the
    State Police had her vehicle.
    5
    The State Police kept Brown’s impounded vehicle at
    headquarters for the next week while continuing to investigate
    the Cape May County case.     On the evening of November 19, State
    Police Detective Christian Eskridge obtained a warrant to search
    Brown’s car.     That evening, he telephoned Brown to inform her
    that her car would be searched.        Detective Eskridge offered to
    drive Brown to the police station after the search was executed
    so she could retrieve her car.
    On November 20, Detective Eskridge searched Brown’s car and
    found contraband, a gun holster, and other items, including
    jewelry, linking the car to the home invasion.       During the
    investigation into the burglary, the State Police received a tip
    that Thomas had given Brown a locket reported as stolen during
    the break-in.    The locket was not among the jewelry found in the
    search of Brown’s car.     As a result, Detective Eskridge
    determined that the investigation should include a search of
    Brown’s home.2
    2  Detective Eskridge testified that, consistent with the
    Assistant Prosecutor’s advice, “the best bet was to execute the
    search warrant on the car first” to “obtain additional evidence
    that [would] build[] the [probable cause] for her apartment.”
    Detective Steet’s testimony, aligned with that of Detective
    Eskridge, indicated that the officers lacked probable cause to
    search Brown’s home until after the search of her car had been
    completed. As noted, the search of Brown’s car did not take
    place until the morning of November 20, sometime before 10 a.m.
    6
    Detective Eskridge was already scheduled that morning to
    bring Brown to pick up her car; he decided not to first seek a
    search warrant but instead to ask Brown if she would consent to
    a search of her home when he went to pick her up.     Detective
    John Steet of the State Police accompanied him.     Detective
    Eskridge explained that if Brown refused consent, he would then
    proceed to seek a search warrant, securing the premises in the
    interim by either preventing Brown from entering the home or
    allowing her access, accompanied by police, to prevent loss or
    destruction of evidence.
    The detectives arrived at Brown’s apartment at about 10:00
    a.m. on November 20.   Brown had recently arrived home from work.
    She encountered Detectives Eskridge and Steet outside her
    apartment as she exited a neighbor’s apartment.     The detectives
    told Brown that they had received a tip that Thomas had given
    her a stolen locket and asked if she would consent to a search
    of her home for the item.    She immediately refused and told the
    officers to obtain a warrant if they wanted to search her
    apartment.   The conversation outside the apartment lasted about
    fifteen to twenty minutes.
    Detective Steet testified that Brown’s refusal to consent
    after she learned that the detectives were looking for a stolen
    locket made him fear that Brown would destroy evidence of the
    locket if she were permitted to enter the apartment alone.      To
    7
    prevent that possibility, the detectives told Brown that she
    could either remain outside the apartment, which would be
    secured by the officers from the outside,3 or enter the apartment
    accompanied by a police escort.   Both detectives testified that
    their offer to secure the premises in either of those two ways
    was consistent with State Police training and approved by a
    supervisor at the State Police who had been contacted.
    Brown chose to enter the apartment, and Detective Steet
    followed her in.   Detective Eskridge left to obtain a search
    warrant.   Other State Police officers arrived an hour later.
    The officers remained in the apartment’s kitchen, with Brown,
    while awaiting Eskridge’s return from obtaining the warrant from
    the same Cape May County judge who issued the warrant to search
    Brown’s car.   Because Brown’s apartment was in Cumberland
    County, it took several hours for Eskridge to obtain the warrant
    and return.
    At about 1:30 p.m., Brown left to report for work and the
    officers exited with her.4   At approximately 4:00 p.m., Detective
    3  Steet testified that Brown could have returned to her
    neighbor’s apartment or the detectives could have taken her to
    pick up her car, as originally intended. However, Brown wanted
    to go into her own home, and she did not want to consent to a
    search of her home.
    4  During the time that the officers were in her home, Brown
    required use of her lavatory. Detective Steet told Brown that
    she could leave the apartment to use one off-premises, such as a
    nearby public restroom or a neighbor’s bathroom, or she could
    8
    Eskridge, armed with a search warrant, returned and searched the
    apartment.   During the search, the officers found a black
    drawstring bag -- like the one described by the victims and
    eyewitnesses to the Cape May County home invasion -- but no
    locket.
    B.
    Brown commenced the instant matter by filing a complaint in
    the Law Division against the State of New Jersey, Detectives
    Steet and Eskridge, and other State Police and Vineland Police
    Department officers.   Among others, Brown advanced an NJCRA
    claim under N.J.S.A. 10:6-2(c), which provides a cause of action
    for deprivation of “any substantive rights, privileges or
    immunities secured by the Constitution or laws of this State,”
    use her own bathroom but she would have to be accompanied by a
    female officer. Brown, who had a medical condition, objected
    and determined to use her own bathroom. A female Vineland
    police officer was brought in to accompany her. Brown was
    afforded no privacy during her use of the facilities. Pre-
    trial, the motion court determined that the many disputed facts
    over the type of search (visual, strip, or cavity) conducted by
    the female officer during the bathroom encounter required the
    denial of summary judgment to all officers (including Steet)
    still on the premises when that incident occurred. Some
    confusion, discussed infra, spilled over as to what other facts
    would be presented to the jury relating to the qualified
    immunity issues that were not resolved prior to trial. Brown’s
    counsel did not pursue the issue at the time and allowed it to
    be sorted out at trial. The bathroom incident was not the focus
    of the qualified immunity issue eventually pursued on appeal.
    This appeal focuses on entry into the apartment.
    9
    alleging a violation of Article I, Paragraph 7 of the New Jersey
    Constitution, which guarantees freedom from unreasonable
    searches and seizures.5   She sought compensatory and punitive
    damages, a declaratory judgment that defendants’ conduct
    violated her rights, and injunctive relief, along with costs and
    fees.   Defendants denied Brown’s allegations and raised
    qualified immunity as a defense.
    Prior to trial, defendants moved for summary judgment,
    which was granted for certain defendants, including Detective
    Eskridge; however, the motion for summary judgment was denied as
    to the State Police and Detective Steet.     The trial court
    reserved decision on the remaining defendants’ qualified
    immunity defense, determining to allow the jury to resolve
    underlying material questions of fact, after which the court
    would resolve remaining questions of law related to the immunity
    defense.
    The jury returned a verdict in favor of defendants, finding
    that Brown failed to prove that:     (1) the State Police lacked a
    good reason to fear the destruction of evidence before seeking
    the issuance of a warrant; (2) the State Police and Detective
    5  Brown’s complaint also alleged a violation of the Fourth
    Amendment of the United States Constitution, but that claim was
    dismissed prior to trial. Brown v. State, 
    442 N.J. Super. 406
    ,
    416 n.4 (App. Div. 2015).
    10
    Steet failed “to reconcile . . . law enforcement needs with
    [her] privacy interests”; (3) the State Police restricted her
    movements by preventing her from leaving her apartment; and (4)
    the State Police restricted “her movements for an unreasonable
    period.”
    Brown’s motion for a judgment notwithstanding the verdict
    (JNOV) was denied.
    C.
    On appeal, the Appellate Division affirmed the trial
    court’s denial of Brown’s motion for JNOV as to the State
    Police, but the panel reversed as to whether Detective Steet was
    entitled to qualified immunity.    Brown v. State, 
    442 N.J. Super. 406
    , 410-11 (App. Div. 2015).
    The panel concluded that Detective Steet acted
    unconstitutionally by entering Brown’s home without a warrant
    because his entry was premised on invalid police-created
    exigency, namely, the detectives’ disclosure to Brown of the
    object of their search and their subsequent reliance on her
    informed refusal of consent.    
    Id. at 417,
    427-28.   The panel
    rejected the argument that Steet’s entry was justified under
    Illinois v. McArthur, 
    531 U.S. 326
    , 
    121 S. Ct. 946
    , 
    148 L. Ed. 2d
    838 (2001), in which the United States Supreme Court found an
    officer’s entry into the threshold of a home to monitor a
    suspect’s movements pending issuance of a search warrant to be
    11
    reasonable.   
    Brown, supra
    , 442 N.J. Super. at 421.   Rather, the
    panel labelled this entry a severe intrusion upon Brown’s
    constitutional privacy rights unsupported by genuine exigency to
    justify the action.   
    Ibid. Further, the panel
    identified the
    officer’s warrantless entry into Brown’s home as a clear
    violation of established precedent regarding the protection
    provided by Article I, Paragraph 7 to privacy rights in a home.
    
    Id. at 427.
      Determining qualified immunity to be inapplicable,
    the panel remanded for a determination of damages against
    Detective Steet.   
    Id. at 427-28.
    The Attorney General filed a petition for certification to
    this Court, which was granted.   
    225 N.J. 339
    (2016).    We also
    granted the motion of the American Civil Liberties Union of New
    Jersey (ACLU-NJ) for leave to appear as amicus curiae.
    II.
    A.
    The State points to United States Supreme Court precedent
    in arguing for reversal of the panel’s decision holding that
    Detective Steet was not entitled to qualified immunity.
    In particular, the State contends that this case is
    analogous to McArthur, which, the State argues, permits police
    officers who have probable cause to believe that evidence will
    be found within a home to offer occupants the choice of
    remaining outside the residence while awaiting a search warrant
    12
    or entering the home only with police accompaniment.     In support
    of that legal interpretation, the State points to State v.
    Wright, where this Court found unlawful an officer’s warrantless
    entry into the defendant’s apartment at the behest of the
    defendant’s landlord.   
    221 N.J. 456
    , 478-79 (2015).    Still, the
    Court added in its discussion that the officer could have
    lawfully “secure[d] the apartment or home from the outside, for
    a reasonable period of time, if reasonably necessary to avoid
    any tampering with or destruction of evidence” while awaiting
    the warrant.   
    Id. at 478
    (citing 
    McArthur, supra
    , 531 U.S. at
    
    334, 121 S. Ct. at 951-52
    , 
    148 L. Ed. 2d
    at 849).      Further, the
    State argues that the Appellate Division erred when
    characterizing this case as involving impermissible police-
    created exigency because it arose from reasonable and
    constitutional police conduct:   asking for consent to search, as
    permitted by Kentucky v. King, 
    563 U.S. 452
    , 462, 466, 131 S.
    Ct. 1849, 1858, 1860, 
    179 L. Ed. 2d 865
    , 876, 879 (2011).
    Pointedly, the State does not argue exigent circumstances as the
    basis for entry into Brown’s home.
    In sum, the State argues that Detective Steet is entitled
    to qualified immunity because, even when viewed in the least
    favorable light to the State’s argued position, New Jersey
    precedent does not clearly establish that the detective’s
    conduct in securing the premises was unconstitutional -- in
    13
    particular, because it was based on “reasonable interpretations
    of McArthur and King” and was authorized by “current police
    training.”
    B.
    Brown seeks affirmance of the Appellate Division judgment
    finding a violation of her state constitutional rights, and
    therefore a violation of the NJCRA, because Detective Steet
    entered her home without a warrant, exigent circumstances, or
    consent.
    Brown fundamentally contends that the State’s reliance on
    McArthur is unfounded, emphasizing that the McArthur Court
    recognized that there can be no entry without a showing of
    exigency.    
    See 531 U.S. at 331
    , 121 S. Ct. at 950, 
    148 L. Ed. 2d
    at 847.     According to Brown, the State relies on impermissible
    police-created exigency that cannot justify a warrantless entry
    of the home.     She maintains that exigency arose only after the
    detectives told Brown of the object of their search and after
    Brown exercised her constitutional right to refuse consent to
    the search.     Thus, on the issue of qualified immunity, Brown
    argues that Detective Steet is not entitled to the defense
    because it is well established that an officer may not
    effectuate a warrantless entry into a home without genuine
    exigency and that a refusal of consent does not create exigent
    circumstances.
    14
    As amicus, the ACLU-NJ supports Brown’s position.      The
    ACLU-NJ contends that the State Police lacked sufficient
    exigency to enter Brown’s home without a warrant and urges this
    Court not to expand exigent-circumstances law in a case such as
    this, where a police officer told a person the object of his
    search and then based a claim of exigency on the person’s
    constitutional right to refuse to consent to entry of a home.
    The ACLU-NJ maintains that such a holding would provide ill-
    intentioned officers with a means by which to circumvent the
    warrant requirement.
    The ACLU-NJ also counters the State’s assertion that
    McArthur permits the detectives’ conduct here.    The ACLU-NJ
    argues that the law enforcement interest in obtaining a stolen
    locket from a non-suspect’s home is meager when compared to the
    magnitude of the infringement on Brown’s privacy rights.    And,
    the ACLU-NJ argues that Detective Steet should be denied the
    defense of qualified immunity due to the unlawfulness of the
    police conduct in disregarding Brown’s privacy interest in her
    home, coupled with the disregard of the well-known rules
    governing warrantless police entry into a home.
    III.
    A.
    The affirmative defense of qualified immunity protects
    government officials from personal liability for discretionary
    15
    actions taken in the course of their public responsibilities,
    “insofar as their conduct does not violate clearly established
    statutory or constitutional rights of which a reasonable person
    would have known.”   Morillo v. Torres, 
    222 N.J. 104
    , 116 (2015)
    (quoting Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818, 
    102 S. Ct. 2727
    , 2738, 
    73 L. Ed. 2d 396
    , 410 (1982)).    The defense “extends
    to suits brought under . . . the Civil Rights Act, N.J.S.A.
    10:6-1 to -2.”   
    Id. at 107-08.
    This state’s qualified immunity doctrine tracks the federal
    standard, shielding from liability all public officials except
    those who are “plainly incompetent or those who knowingly
    violate the law.”    
    Id. at 118
    (quoting Connor v. Powell, 
    162 N.J. 397
    , 409, cert. denied, Badgley v. Connor, 
    530 U.S. 1216
    ,
    
    120 S. Ct. 2220
    , 
    147 L. Ed. 2d 251
    (2000)).    To ascertain
    whether a governmental official, such as Detective Steet, is
    entitled to qualified immunity requires inquiries into whether:
    (1) the facts, “[t]aken in the light most favorable to the party
    asserting the injury[] . . . show the officer’s conduct violated
    a constitutional right”; and (2) that constitutional “right was
    clearly established” at the time that defendant acted.     Saucier
    v. Katz, 
    533 U.S. 194
    , 201, 
    121 S. Ct. 2151
    , 2156, 
    150 L. Ed. 2d 272
    , 281 (2001); see Schneider v. Simonini, 
    163 N.J. 336
    , 354-55
    (2000) (“The ‘clearly established law’ requirement . . .
    obligates a court to judge an official’s conduct based on the
    16
    state of the law and facts that existed at the time of the
    alleged statutory or constitutional violation.” (citing Anderson
    v. Creighton, 
    483 U.S. 635
    , 639, 
    107 S. Ct. 3034
    , 3038, 97 L.
    Ed. 2d 523, 530 (1987))), cert. denied, 
    531 U.S. 1146
    , 121 S.
    Ct. 1083, 
    148 L. Ed. 2d
    959 (2001).   Either of the two prongs
    may be considered first.   
    Morillo, supra
    , 222 N.J. at 118.
    B.
    Ordinarily, application of the defense of qualified
    immunity is a legal question for the court rather than the jury;
    therefore, the defense should be raised and resolved “long
    before trial.”   
    Schneider, supra
    , 163 N.J. at 356 (quoting
    Hunter v. Bryant, 
    502 U.S. 224
    , 228, 
    112 S. Ct. 534
    , 537, 116 L.
    Ed. 2d 589, 596 (1991)).   Qualified immunity relieves an
    eligible defendant from the burden of trial.   See, e.g., Pearson
    v. Callahan, 
    555 U.S. 223
    , 232, 
    129 S. Ct. 808
    , 815, 
    172 L. Ed. 2d
    565, 573 (2009) (noting “the importance of resolving immunity
    questions at the earliest stage in litigation” (quoting 
    Hunter, supra
    , 502 U.S. at 
    227, 112 S. Ct. at 536
    , 116 L. Ed. 2d at
    595)).
    An exception to that rule arises when the case involves
    disputed issues of fact.   
    Schneider, supra
    , 163 N.J. at 359.    In
    such a circumstance, the case may be submitted to the jury to
    determine “the who-what-when-where-why type of historical fact
    issues,” after which the trial judge may incorporate those
    17
    findings in determining whether qualified immunity applies.
    
    Ibid. (internal quotation marks
    omitted).
    C.
    In this matter, defendants raised the defense of qualified
    immunity in connection with their motion for summary judgment,
    arguing that McArthur applied and provided “the only clearly
    established, constitutional standard” relevant to the facts.
    Following argument on the motion, the trial court concluded that
    a factual dispute existed regarding the circumstances of
    restricting Brown’s private use of her lavatory and the
    contested search that took place there when accompanied by a
    female police officer.    The trial court determined to grant the
    motion for summary judgment for the defendants who were “not
    present when that . . . observation was made in the bathroom,”
    but denied the motion, as presented, for those officers,
    including Detective Steet, who were still present in Brown’s
    home at the time of the lavatory incident.    The record does not
    clearly indicate that the trial court made a ruling as to the
    legality of the initial entry into Brown’s apartment prior to
    trial; however, it is clear that the case proceeded to trial on
    factual issues also associated with the entry into the
    apartment.
    Ultimately, the question of qualified immunity was
    determinative at trial.   The trial court placed on the verdict
    18
    sheet four issues related to an application of McArthur to the
    facts of this matter, stating its intention to have the jury
    decide those issues so that the court could “get an idea
    factually, historically, because of an argument of qualified
    immunity,” and that once that verdict sheet was returned, the
    court would “determine the law on the issue of qualified
    immunity.”     The court stated that “the entry and whether or not
    there was an illegal seizure, temporary as it may have been,
    pending the warrant, is something I think that we’re going to
    let the jury determine.”     In addition, in determining to charge
    the jury on McArthur and exigency, the court again stated that
    if the jurors conclude that the officers “were there and they
    had a right to be there . . . then the case ends . . . from the
    jury’s standpoint.”
    The issue of qualified immunity took an unusual route in
    this matter.    In the future, it would be more helpful for
    proceedings to identify with transparency the reasons for
    delaying a decision on qualified immunity.     Because no motions
    were made or appeals taken at the time qualified immunity issues
    were left for the jury, we do not and cannot now weigh in on the
    propriety of that procedure in light of the facts of this case.
    IV.
    Here, Brown alleges that the police entry into her
    apartment violated the right our Constitution bestows on New
    19
    Jerseyans “to be secure in their persons, houses, papers, and
    effects, against unreasonable searches and seizures.”    N.J.
    Const. art. I, ¶ 7.    Under that provision, “a warrantless search
    is presumptively invalid,” State v. Gonzales, 
    227 N.J. 77
    , 90
    (2016) (quoting State v. Edmonds, 
    211 N.J. 117
    , 130 (2012)),
    “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); citing Schneckloth v.
    Bustamonte, 
    412 U.S. 218
    , 219, 
    93 S. Ct. 2041
    , 2043, 
    36 L. Ed. 2d
    854, 858 (1973)).
    A.
    New Jersey law establishes that one exception to the
    warrant requirement of Article I, Paragraph 7 is a search
    justified by probable cause and exigent circumstances.    The
    Attorney General does not cite the exigency exception to the
    warrant requirement as a grounds for the officer’s entry into
    Brown’s apartment; in fact, the Attorney General has expressly
    conceded that, on these facts, “the officers could not have
    relied on exigent circumstances to search Brown’s home while
    they awaited the warrant.”
    Instead, the Attorney General argues that the entry was
    lawful under United States Supreme Court case law that has
    20
    specifically addressed the propriety of securing premises from
    within to preserve evidence while a search warrant was sought.
    In a 1984 case, the United States Supreme Court splintered
    on that pertinent issue.     Segura v. United States, 
    468 U.S. 796
    ,
    
    104 S. Ct. 3380
    , 
    82 L. Ed. 2d 599
    (1984).    In 
    Segura, supra
    ,
    police officers had probable cause to believe that they would
    find drugs in an apartment, but no warrant to conduct a search.
    
    Id. at 800,
    810, 104 S. Ct. at 3383
    , 
    3388, 82 L. Ed. 2d at 605
    ,
    612.    To prevent the loss of the drug evidence, the officers
    “secure[d] the premises” from within, leading to a nineteen-hour
    occupation of the vacant apartment.     
    Id. at 800-01,
    104 S. Ct.
    at 
    3383, 82 L. Ed. 2d at 605-06
    .
    Two Justices concluded that, assuming the existence of
    exigency, “securing a dwelling, on the basis of probable cause,
    to prevent the destruction or removal of evidence while a search
    warrant is being sought is not itself an unreasonable seizure of
    either the dwelling or its contents.”     
    Id. at 810,
    104 S. Ct. at
    
    3388, 82 L. Ed. 2d at 612
    .    However, four Justices concluded
    that the “prolonged occupation” was unconstitutional because it
    “inevitably involved scrutiny of a variety of personal effects
    throughout the apartment” and allowed the officers to
    “exercise[] complete dominion and control over the apartment and
    its contents.”   
    Id. at 820-24,
    104 S. Ct. at 3393-96, 
    82 L. Ed. 2d
    at 618-22.    Ultimately, Segura did not provide a controlling
    21
    opinion on whether officers may secure a residence from the
    inside, or outside, while awaiting a search warrant.
    Confusion engendered by Segura was alleviated to some
    degree by the Supreme Court’s decision in 
    McArthur, supra
    , 531
    U.S. at 
    331-33, 121 S. Ct. at 950-51
    , 
    148 L. Ed. 2d
    at 848-49,
    which held that a police officer was justified in temporarily
    preventing a defendant from entering his home until a search
    warrant issued.
    In McArthur, two police officers were at the defendant’s
    mobile home on a domestic matter when the defendant’s wife
    suddenly revealed that the defendant had hidden “some dope
    underneath the couch.”    
    Id. at 329,
    121 S. Ct. at 948–49, 148 L.
    Ed. 2d at 846.    After one officer requested and was denied
    consent to search the defendant’s trailer, the other officer
    left to obtain a search warrant; during that interval, the
    remaining officer refused to permit McArthur to re-enter his
    home alone.   
    Id. at 329,
    121 S. Ct. at 949, 
    148 L. Ed. 2d
    at
    846.    For two hours, McArthur was unable to enter his own home
    unaccompanied -- when he was allowed to enter the trailer to
    retrieve cigarettes and make a phone call, the officer “stood
    just inside the door to observe what [McArthur] did.”     
    Id. at 328,
    329, 121 S. Ct. at 948
    , 949, 
    148 L. Ed. 2d
    at 846.
    The Supreme Court concluded that the officer’s conduct in
    securing the defendant’s home did not violate the Fourth
    22
    Amendment based on the circumstances, which included:   (1)
    probable cause to believe that the officer would find contraband
    in McArthur’s home; (2) the officer’s reasonable belief that
    McArthur, who saw his wife speak to the police upon exiting the
    trailer, would destroy the contraband if permitted to enter the
    home alone; (3) reasonable efforts by the officer to balance the
    need of law enforcement against McArthur’s privacy interest; and
    (4) a period of restraint that “was no longer than reasonably
    necessary for the police, acting with diligence, to obtain the
    warrant.”   Id. at 
    331-33, 121 S. Ct. at 950-51
    , 
    148 L. Ed. 2d
    at
    848-49.   Significantly, the Court noted that the officer
    “stepped inside the trailer’s doorway” to monitor McArthur’s
    movement only because McArthur chose to enter the home “for his
    own convenience,” and referred to that restraint as minimally
    intrusive, especially when compared to a warrantless arrest or
    search.   
    Id. at 335-36,
    121 S. Ct. at 952-53, 
    148 L. Ed. 2d
    at
    850-51.
    Again, to the extent that Segura and McArthur can be argued
    to justify a discrete set of warrantless home entries pending
    receipt of a requested warrant, they do so specifically in
    connection with “a plausible claim of specially pressing or
    urgent law enforcement need, i.e., ‘exigent circumstances.’”
    Id. at 
    331, 121 S. Ct. at 950
    , 
    148 L. Ed. 2d
    at 847.    There is,
    therefore, a necessary overlap between home entries pursuant to
    23
    McArthur and those pursuant to the exigent circumstances
    exception to the warrant requirement, which also involves a
    showing of exigency to justify a home entry.   See, e.g., State
    v. Bolte, 
    115 N.J. 579
    , 585-86 (recognizing that combination of
    probable cause and exigency “may excuse police from compliance
    with the warrant requirement”), cert. denied, 
    493 U.S. 936
    , 
    110 S. Ct. 330
    , 
    107 L. Ed. 2d 320
    (1989).
    The potential conflation of the two exceptions renders the
    qualified immunity analysis in this appeal particularly
    challenging; we therefore hew closely to the Attorney General’s
    focused reliance on the asserted McArthur justification, and
    consider how New Jersey courts have addressed the specific
    circumstances of securing premises during the interval in which
    a warrant is sought.
    B.
    In the seven years between the decision in McArthur and the
    conduct at issue in this case, this Court did not opine on the
    constitutionality of seizing a home by securing it and
    preventing all access, or alternatively entering it with the
    occupant, while awaiting a search warrant.
    Appellate court decisions that considered the issue have
    not advanced a uniform interpretation of the law.   Some panels
    have held that a seizure of a premises from the outside pending
    a search warrant, even absent exigent circumstances, is
    24
    permissible.   See State v. Josey, 
    290 N.J. Super. 17
    , 29 (App.
    Div.), certif. denied, 
    146 N.J. 497
    (1996); State v. De Lane,
    
    207 N.J. Super. 45
    , 50 (App. Div. 1986).   Other panels have
    permitted entry into a home to secure evidence to be found
    therein pending a warrant when coupled with exigent
    circumstances.   See, e.g., State v. Myers, 
    357 N.J. Super. 32
    ,
    36, 39 (App. Div. 2003) (upholding seizure of home from within
    due to likelihood that defendant, who was aware of
    investigation, would destroy evidence; lack of knowledge of
    defendant’s whereabouts; and officers’ safety concerns).
    Finally, at least one trial court within the state has held that
    officers may enter a home to secure it without any showing of
    exigency at all, so long as they have probable cause to suspect
    evidence will be found in the residence.   State v. Speid, 
    255 N.J. Super. 398
    , 403 (Law Div. 1992) (“The police may, with
    probable cause, enter a home to secure it while a search warrant
    is obtained.” (citing 
    Segura, supra
    , 
    468 U.S. 796
    , 
    104 S. Ct. 3380
    , 
    82 L. Ed. 2d 599
    )).
    Aside from the pending-warrant issue, however, New Jersey
    precedent generally regarding entry into a home to preserve
    evidence was not opaque as of 2008.   Warrantless entry by a
    police officer into a residence was not permitted unless the
    officer obtained the occupant’s consent or could demonstrate
    both probable cause and exigent circumstances.   See State v.
    25
    Hutchins, 
    116 N.J. 457
    , 463 (1989).     Likewise, case law prior to
    2008 suggested that the ideal procedure for the officer who
    lacks exigency would be to secure a home from the outside.       See
    State v. Stott, 
    171 N.J. 343
    , 349-51, 360 (2002); State v.
    Lewis, 
    116 N.J. 477
    , 480, 487–88 (1989); State v. De La Paz, 
    337 N.J. Super. 181
    , 198 (App Div.), certif. denied, 
    168 N.J. 295
    (2001).     But see State v. Alvarez, 
    238 N.J. Super. 560
    , 571
    (App. Div. 1990) (concluding that warrantless entry into hotel
    room to prevent destruction of evidence was constitutional
    because, “unlike a private home, the ability of police officers
    to secure or continue a surveillance of a hotel room poses
    peculiar risks”).
    C.
    We have recently touched on issues presented in Segura and
    McArthur.    In 2015, this Court was asked to consider whether a
    police officer acted unconstitutionally when he entered and
    searched the absent-defendant’s home at the request of the
    defendant’s landlord, a third party, who had found contraband in
    the apartment.    
    Wright, supra
    , 221 N.J. at 459, 461-62.   That
    decision focused on the extension of the third-party
    intervention doctrine to a situation involving a home, and our
    Court noted that “[t]he proper course under the State and
    Federal Constitutions” in that circumstance is to rely on the
    information provided by a third-party to apply for a search
    26
    warrant and then, “[i]n the time it takes to get the warrant,
    . . . secure the apartment or home from the outside, for a
    reasonable period of time, if reasonably necessary to avoid any
    tampering with or destruction of evidence.”   
    Id. at 478
    (citing
    
    McArthur, supra
    , 531 U.S. at 
    334, 121 S. Ct. at 951-52
    , 148 L.
    Ed. 2d at 849).
    Relatedly, we also recently instructed that an officer may
    not insist on accompanying an individual who seeks to enter his
    home in order to obtain requested credentials.   In State v.
    Legette, a police officer conducting a Terry6 investigation asked
    the detained defendant for identification, stated that he “would
    have to accompany [the defendant] to his apartment” to retrieve
    it, and then entered the defendant’s apartment to monitor the
    defendant’s movements, allegedly for the officer’s safety.      
    227 N.J. 460
    , 464-65 (2017).   This Court held that the officer’s
    conduct was unconstitutional because law enforcement personnel
    conducting Terry investigations may only act to protect
    themselves during that limited encounter, and that aim would not
    be furthered by warrantless entry into a detainee’s home.      
    Id. at 473.
    In sum, the latest guidance in this general area has
    ratified the preeminent requirement of a warrant, or clearly
    6  Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968).
    27
    granted consent, before an officer may accompany an individual
    into the recesses of her home.   Exigency creates its own sets of
    rules, depending on the exception to the warrant requirement
    relied upon.
    Although we include that guidance for completeness, it
    cannot inform our analysis of the officers’ conduct in this case
    because it came years after the contested home entry.    Once
    again, determination of the existence of whether a
    constitutional right was clearly established and violated
    depends, for purposes of qualified immunity analysis, on the
    state of the law at the time of the alleged violation.
    V.
    Applying these legal principles to the facts of this case,
    Detective Steet will be entitled to qualified immunity so long
    as New Jersey law did not “clearly establish[] that [his]
    conduct was unlawful in the circumstances.”   
    Saucier, supra
    , 533
    U.S. at 
    201, 121 S. Ct. at 2156
    , 150 L. Ed. 2d at 281.    To make
    that determination, we must assess whether, on November 20, 2008
    (the date of the entry into Brown’s home), the law was
    “sufficiently clear that a reasonable official” in Detective
    Steet’s position would have known that the warrantless entry
    violated Brown’s rights.   
    Anderson, supra
    , 483 U.S. at 
    640, 107 S. Ct. at 3039
    , 97 L. Ed. 2d at 531.
    28
    The Attorney General argues that Detective Steet relied on
    McArthur when he asked Brown to choose between not entering her
    home, letting the detective secure it from the outside, or
    entering with an officer who would secure it from the inside.
    In doing so, consistent with police training and supervisor
    approval in these circumstances, the State maintains that Steet
    acted reasonably -- not incompetently or knowingly wrongfully --
    and should be entitled to the benefit of qualified immunity.
    Given McArthur’s ambiguity, this Court’s lack of precedent
    regarding McArthur and Segura, and inconsistent interpretations
    of those cases by the Appellate Division, we are compelled to
    recognize the force of the State’s argument that the parameters
    of a permissible seizure of a home pending a search warrant were
    not clearly established within New Jersey when Detective Steet
    acted, such that a reasonable officer in his position would not
    have known that his conduct was unlawful.    
    Saucier, supra
    , 533
    U.S. at 
    202, 121 S. Ct. at 2156
    , 150 L. Ed. 2d at 282; see,
    e.g., 
    Morillo, supra
    , 222 N.J. at 120 (finding qualified
    immunity applied in context of ambiguous application of
    statutory exemption).
    As of November 20, 2008, neither McArthur itself nor any
    strain of New Jersey case law interpreting McArthur defined the
    boundaries within which an officer must abide when securing a
    residence while awaiting a search warrant.   First, McArthur
    29
    clearly holds that an officer may secure a home from the outside
    by preventing a suspect’s reentry to preserve evidence that the
    officer has reason to believe is within the home while he awaits
    a search warrant.   
    McArthur, supra
    , 531 U.S. at 
    328, 121 S. Ct. at 948
    , 
    148 L. Ed. 2d
    at 846.   In support of that holding, the
    Court cited Segura, in which both the majority and minority of
    the Court agreed that officers seeking to secure a home “might
    lawfully have sealed the apartment from the outside, restricting
    entry into the apartment while waiting for the warrant.”     
    Id. at 333,
    121 S. Ct. at 951, 
    148 L. Ed. 2d
    at 849 (emphases added).
    Yet, McArthur does not foreclose the possibility that
    officers might lawfully enter a home to secure it when the
    occupant, as here, insists on entry.    The Court noted that the
    officer on the scene prevented McArthur from entering his home
    “unless a police officer accompanied him,” but the Court did not
    explicitly and separately address whether the officer could have
    “accompanied” McArthur into the residence.    
    Id. at 329,
    121 S.
    Ct. at 949, 
    148 L. Ed. 2d
    at 846.    In fact, while awaiting a
    warrant, the officer twice monitored McArthur from inside the
    door, which the Court labeled an “observation.”    
    Id. at 329,
    335, 121 S. Ct. at 949
    , 952, 
    148 L. Ed. 2d
    at 846, 850.
    Moreover, the Supreme Court noted that the limited entry avoided
    “significant intrusion into the home itself,” and cited as
    support Payton v. New York, 
    445 U.S. 573
    , 585, 
    100 S. Ct. 1371
    ,
    30
    1379–80, 
    63 L. Ed. 2d 639
    , 650 (1980), and United States v.
    United States District Court, 
    407 U.S. 297
    , 313, 
    92 S. Ct. 2125
    ,
    2134, 
    32 L. Ed. 2d 752
    , 764 (1972), both of which recognize that
    “physical entry of the home is the chief evil against which the
    . . . Fourth Amendment is directed.”       Id. at 
    331, 121 S. Ct. at 950
    , 
    148 L. Ed. 2d
    at 847-48.
    Finally, in ranking the various “intrusions,” the Court
    held that it would be a greater intrusion to enter a home to
    conduct a warrantless arrest or search than to “[t]emporarily
    keep[] a person from entering his home,” 
    id. at 336,
    121 S. Ct.
    at 953, 
    148 L. Ed. 2d
    at 851, and it would be a greater
    intrusion to prohibit reentry altogether than to permit it
    “conditioned on observation,” 
    id. at 335,
    121 S. Ct. at 952, 
    148 L. Ed. 2d
    at 850.     However, nowhere in that ranking, or in its
    opinion, did the Court address the intrusion effected by a
    warrantless entry to allow for extended observation, as in this
    case.   Instead, McArthur’s “language leaves open to debate the
    intended reach” of its new rule.       
    Morillo, supra
    , 222 N.J. at
    123.
    Due to its inherent ambiguity on the subject at issue,
    McArthur does not clearly establish that Detective Steet acted
    unlawfully when he entered Brown’s home to secure it from
    within.   See 
    ibid. It is likewise
    not clearly established by
    McArthur whether Detective Steet could offer Brown the choice of
    31
    awaiting the warrant outside of her home or inside the home with
    police accompaniment.
    Second, because the scope of McArthur’s holding “remains
    unsettled by any interpretive decision by [New Jersey] courts,”
    Detective Steet cannot fairly be regarded as violating clearly
    established state law when he entered Brown’s home to secure it
    pending issuance of a search warrant.   
    Ibid. As of November
    2008, this Court had neither interpreted McArthur nor defined
    the extent of permissible police activity under the New Jersey
    Constitution in light of McArthur.   Although we cited McArthur
    in 
    Wright, supra
    , as support for the proposition that, rather
    than enter a home without a warrant, an officer should secure
    the premises from the outside, the Court did not decide Wright
    until 2015; therefore, although Wright directs a limited
    application of McArthur under the New Jersey Constitution, its
    guidance was not available to Detective Steet at the time of his
    
    conduct. 221 N.J. at 478
    (citing 
    McArthur, supra
    , 531 U.S. at
    
    334, 121 S. Ct. at 951
    –52, 
    148 L. Ed. 2d
    at 849).7
    7  The only New Jersey precedent to have cited McArthur by 2008
    was State v. Nikola, which referenced McArthur in support of the
    seizure of a person, rather than a home, before holding that an
    officer did not require an arrest warrant to enter the
    defendant’s garage because she had already been seized during a
    temporary investigative detention at the time of entry. 
    359 N.J. Super. 573
    , 583, 586 (App. Div.), certif. denied, 
    178 N.J. 30
    (2003).
    32
    Likewise, as of 2008, this Court had not weighed in on
    Segura’s competing analyses regarding an officer’s occupation of
    a home while awaiting a search warrant.   The few published
    Appellate Division decisions interpreting and applying Segura
    did so inconsistently.   As noted previously, one panel
    determined that an officer acted reasonably in securing a home
    from within, 
    Myers, supra
    , 357 N.J. Super. at 39, but two others
    held that such conduct would be unconstitutional if the facts
    lacked sufficient exigency, 
    Josey, supra
    , 290 N.J. Super. at 29,
    or if the officers could have secured the home from the outside,
    De 
    Lane, supra
    , 207 N.J. Super. at 50.    Although one Law
    Division decision interpreted Segura to allow warrantless
    occupation of a home pending issuance of a search warrant, even
    without exigent circumstances, 
    Speid, supra
    , 255 N.J. Super. at
    403, no published appellate decision has favorably cited Speid
    for that proposition.
    Based on the lack of New Jersey case law interpreting
    McArthur or clearly addressing the propriety of seizure of a
    home from within in order to secure evidence, we find that New
    Jersey’s precedent was not sufficiently clear to support a
    conclusion that Detective Steet violated “clearly established
    law” when he entered Brown’s home to secure it.    
    Morillo, supra
    ,
    222 N.J. at 123.
    33
    Finally, we note that, although police department policies
    do not hold compelling weight in a qualified immunity analysis,
    see City & County of San Francisco v. Sheehan, 575 U.S. ___, 
    135 S. Ct. 1765
    , 1777–78, 
    191 L. Ed. 2d 856
    , 870 (2015), Detective
    Steet’s reliance on State Police training and policy is of some
    value.    The Supreme Court has found such policies “important to
    [the Court’s] conclusion” regarding qualified immunity when “the
    state of the law” at the time of the challenged conduct “was at
    best undeveloped.”    Wilson v. Layne, 
    526 U.S. 603
    , 617, 119 S.
    Ct. 1692, 1700–01, 
    143 L. Ed. 2d 818
    , 832 (1999).    When that is
    the case, “it [is] not unreasonable for law enforcement officers
    to look and rely on their formal . . . policies.”    
    Id. at 617,
    119 S. Ct. at 
    1700–01, 143 L. Ed. 2d at 832
    .
    Here, Detective Steet’s supervisor, Sergeant Perry,
    testified at trial that the State Police have an adopted policy
    of allowing officers, who are securing a home pending the
    issuance of a search warrant, to await the warrant inside the
    home if the occupant chooses to do so.    Although not
    determinative or of controlling weight, we find the existence of
    such policy to be informative when determining the
    reasonableness of Detective Steet’s conduct, who relied on his
    police training when confronted with this unsettled area of the
    law.   See ibid., 119 S. Ct. at 
    1700–01, 143 L. Ed. 2d at 832
    .
    34
    In conclusion, we hold that Detective Steet is entitled to
    qualified immunity as to Brown’s NJCRA claim because regardless
    of whether his conduct amounts to a violation of a
    constitutional right, that right was not clearly established at
    the time that he acted.     See 
    Pearson, supra
    , 555 U.S. at 
    227, 129 S. Ct. at 813
    , 
    172 L. Ed. 2d
    at 570 (declining to consider
    constitutional violation prong based on finding no violation of
    clearly established law).
    VI.
    Although our finding with respect to the State’s McArthur
    argument resolves this matter, we pause to add clearer guidance
    going forward.
    New Jersey recognizes the exigency exception to the warrant
    requirement.   In a case of true exigency and probable cause, the
    police can enter a dwelling.    However, police-created exigency
    “designed to subvert the warrant requirement” has long been
    rejected as a basis to justify a warrantless entry into a home,
    in comparison to exigency that arises “as a result of reasonable
    police investigative conduct intended to generate evidence of
    criminal activity,” which can justify entry.    
    Hutchins, supra
    ,
    116 N.J. at 460, 470; see also State v. Walker, 
    213 N.J. 281
    ,
    295 (2013).    Further, invocation of a person’s constitutional
    right to refuse an officer’s request for a consent search “is
    not probative of wrongdoing and cannot be the justification for
    35
    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); accord State v. Domicz, 
    188 N.J. 285
    , 306-09
    (2006).
    The State does not rely on exigency to justify entry into
    Brown’s home for good reason:    police-created exigency cannot
    form a basis to enter a residence to secure it.    In light of our
    precedent, Detective Steet could not justify entry into Brown’s
    home by notifying her that he was looking for a gold locket
    necklace as part of a criminal investigation and then relying on
    her refusal to consent.   In other words, Detective Steet could
    not rely on Brown’s decision to refuse consent, informed by her
    newly acquired knowledge of the object of the officers’ search,
    as “justification for [his] warrantless entry into [her] home,”
    in violation of her rights.     
    Frankel, supra
    , 179 N.J. at 611.   A
    person answering her door and faced with a request by a law
    enforcement officer for consent to search her home for a
    specific item has every right to say no and shut the door.    A
    person asked that question outside her home, in her yard, on her
    sidewalk, or on her front steps has the equivalent right to walk
    away, enter her home, and decline the officer the right to
    36
    enter.8   We reaffirm the primacy of one’s privacy rights in a
    home.
    Also, in the future, law enforcement officials may not rely
    on McArthur to enter an apartment to secure it while awaiting a
    search warrant.   Although McArthur does not explicitly permit or
    forbid entry into a home under those circumstances, our ruling
    today makes clear that officers may not do so.   They must get a
    warrant and, if reasonably necessary, may secure the apartment
    for a reasonable period of time from the outside.   As a result,
    because the Attorney General argues, fairly, that reliance on an
    understanding of McArthur and its reach justified Detective
    Steet’s entry into Brown’s home in order to secure it from
    within and because New Jersey’s interpretation of McArthur was
    not clearly established at the time of his conduct, we conclude
    that Detective Steet is entitled to qualified immunity.
    VII.
    8  Here, the State cites 
    King, supra
    , 563 U.S. at 
    466, 131 S. Ct. at 1860
    , 179 L. Ed. 2d at 879, to argue that the exigency that
    arose in this matter was not impermissible police-created
    exigency because the detectives lawfully chose to obtain consent
    to search Brown’s apartment rather than seek a search warrant.
    However, this Court finds that argument unpersuasive, as the
    detectives here did not merely seek Brown’s consent, but
    informed her of the object of their search in doing so and then
    relied on her refusal to find exigency. In any event, because
    King was decided in 2011, three years after the events at issue,
    this Court does not consider that case when analyzing Detective
    Steet’s conduct.
    37
    The judgment of the Appellate Division is reversed, and the
    trial court’s dismissal of this action against Detective Steet
    is reinstated.
    CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,
    SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE
    ALBIN filed a separate, dissenting opinion.
    38
    SUPREME COURT OF NEW JERSEY
    A-71 September Term 2015
    076656
    DENISE BROWN,
    Plaintiff-Respondent,
    v.
    STATE OF NEW JERSEY and JOHN
    STEET, DETECTIVE (NJSP), both
    in his individual and
    official capacity as New
    Jersey State Police
    Detective,
    Defendants-Appellants,
    and
    RICK FUENTES, COLONEL, both
    in his individual and
    official capacity as
    Superintendent of New Jersey
    State Police, CHRISTIAN
    ESKRIDGE, TROOPER (NJSP),
    both in his individual and
    official capacity as New
    Jersey State Trooper, 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
    1
    SOTO, both in her individual
    and official capacity as
    Vineland Police Officer,
    Defendants.
    JUSTICE ALBIN, dissenting.
    The constitutional protection against the unreasonable
    search and seizure of a home is enshrined in the 1791 Federal
    Bill of Rights and our 1844 State Constitution.1    The Founders
    put in place checks against the abuse of governmental authority
    to ensure the sanctity of the home.    Since the beginning of the
    Republic, our constitutional jurisprudence has forbidden law
    enforcement officials from seizing or entering a home without a
    warrant, subject to very limited exceptions.     In the modern era,
    the warrantless seizure or entry of a home is impermissible
    absent consent or exigent circumstances.     That simple
    formulation of the Fourth Amendment and Article I, Paragraph 7
    of the New Jersey Constitution has been clear for decades.     It
    should have been clear to the State Police detective who
    trampled on Denise Brown’s rights in 2008.
    The police had reason to believe that Brown was given a
    stolen locket.   She was not suspected of committing a theft or
    knowingly receiving stolen property.    The police had sufficient
    1
    N.J. Const. art. I, ¶ 6 (1844). The 1844 provision was the
    same as the current Article I, Paragraph 7. N.J. Const. art. I,
    ¶ 7.
    2
    time to secure a warrant for the search of her home, but chose
    instead to attempt to obtain her consent to search.   She
    lawfully exercised her right to deny the police consent to
    rummage through every drawer in her home in search of the
    locket.   For exercising that right, the police seized her home
    for six hours without a warrant, even though no exigent
    circumstances justified their doing so.   Brown was rendered a
    virtual prisoner in her own home, denied even the right to use
    her bathroom beyond the prying eyes of a police officer, who
    watched her perform the most private of sanitary functions.
    The Appellate Division found that Brown’s clearly
    established constitutional right to be secure in her home and
    person was violated and therefore she is entitled to damages for
    the violation of her civil rights.   Brown v. State of New
    Jersey, 
    442 N.J. Super. 406
    , 427-28 (App. Div. 2015).     The
    majority agrees that the police violated her constitutional
    right under our State Constitution but astonishingly concludes
    that Brown’s right to be secure in her home was not clearly
    established at the time.   The majority thus cloaks the offending
    police officer with qualified immunity and denies Brown a remedy
    under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2.
    I dissent because there is no legitimate support in our
    jurisprudence for the majority’s decision to deny Brown relief.
    I dissent because this crabbed view of our Civil Rights Act will
    3
    discourage claimants from seeking relief in our courts.      The
    majority’s parsing of our case law does not do justice to the
    clearly established right to be free from an unreasonable
    seizure in one’s own home -- the most basic of all rights.
    I would affirm the Appellate Division and find that State
    Police Detective John Steet violated Brown’s clearly established
    right to be secure in her home from an unreasonable seizure.
    I.
    Here are the relevant facts.       Burglars entered a Cape May
    County residence, stealing jewelry and other items and driving
    off in a blue BMW.     “The home invasion was apparently a case of
    drug dealers stealing from drug dealers.”      
    Id. at 411
    n.2.     One
    of the burglary suspects was Carlos Thomas, plaintiff Denise
    Brown’s boyfriend.
    About two weeks later, on November 12, 2008, Brown loaned
    Thomas her blue BMW.     That day, City of Vineland police officers
    stopped the BMW, arrested Thomas for driving with a suspended
    license, and impounded the car.    The State Police also charged
    Thomas with the burglary and related offenses -- charges that
    later would be dismissed.
    After Thomas’s arrest, the State Police received
    information from the mother of the putative victim that Thomas
    had given Brown a locket with diamonds that had been stolen
    during the burglary.     The source of the mother’s information is
    4
    not clear and may have been second- or third-hand hearsay.
    Nothing in the record suggests that Brown had any participation
    in the burglary.    Indeed, Brown denied ever receiving a locket
    from Thomas, and the State Police never found the locket in her
    apartment or on her person.
    A week later, on November 19, 2008, State Police Detective
    Christian Eskridge secured a warrant to search Brown’s vehicle.
    The next day, Detective Eskridge searched the vehicle,
    uncovering jewelry (but no locket), drugs, and a holster that
    fit the gun allegedly used in the burglary.     Detective Eskridge
    decided that the next step would be to search Brown’s home.
    Although Detective Eskridge had probable cause to apply for a
    search warrant, he chose not to do so.    Instead, the plan was to
    ask Brown for her consent to search her home.
    That same day, at about 10:00 a.m., State Police Detectives
    Eskridge and John Steet encountered Brown outside her apartment.
    They asked if she would consent to the search of her home for
    the locket, and she refused.    She told the detectives that she
    had no such locket and did not want them searching her “house on
    hearsay.”    She told the detectives, “[G]o to the court and . . .
    get legal documentation and you’re more than welcome to search
    my house.”
    After Brown exercised her right to refuse consent, the
    detectives gave her two unpalatable options:     lock and leave her
    5
    apartment while they applied for a warrant or remain there under
    the watchful eye of the police.     The detectives at trial
    admitted that because they told Brown they were looking for the
    locket, they now feared she might destroy it.     This self-created
    exigency became the rationale for seizing Brown’s apartment,
    even though the detectives conceded that they had no reason to
    suspect that Brown was involved in any wrongdoing.
    Brown decided to stay in her home.     Detective Eskridge went
    to the courthouse to apply for a warrant while Detective Steet -
    - assisted by a number of back-up officers -- remained with
    Brown.   For three-and-one-half hours, until she had to leave for
    work, Brown was shadowed in her own home.     When Brown had to use
    her bathroom to change a sanitary napkin, a female officer
    accompanied her.   Brown was allowed no vestige of privacy.
    At 1:30 p.m., when Brown left for work, the State Police
    secured the apartment from the outside.    At about 4:00 p.m., six
    hours after the apartment was first seized, Detective Eskridge
    returned with a search warrant.     The State Police entered the
    apartment with a key provided by Brown’s mother.     The State
    Police apparently searched every nook and cranny in the
    apartment in a vain attempt to find the locket.     As noted
    earlier, Brown was never charged with burglary, receiving stolen
    property, or any related offense.
    II.
    6
    Brown filed suit against the State, Detective Steet, and
    others under the New Jersey Civil Rights Act (CRA), alleging the
    violation of her rights under Article I, Paragraph 7 of the
    State Constitution.2   After the jury returned a verdict in favor
    of the State and Detective Steet, the trial court denied Brown’s
    motion for judgment notwithstanding the verdict (JNOV).    The
    Appellate Division reversed the denial of the JNOV motion as to
    Detective Steet because the evidence “indisputably” established
    that the “entry into Brown’s residence before securing the
    warrant was unlawful as a matter of law.”     
    Id. at 410-11.
      More
    specifically, the Appellate Division found that Detective Steet
    was not entitled to qualified immunity because his “own
    testimony establishes, unequivocally, that his warrantless entry
    into Brown’s home without consent or exigent circumstances
    violated her rights under our State Constitution” and because
    the constitutional rights violated by Detective Steet were
    clearly established at that time.     
    Id. at 427-28.
    The Appellate Division soundly decided that qualified
    immunity did not apply to Detective Steet’s actions.
    III.
    A.
    2
    The claims against other defendants were dismissed before or
    after trial. In addition, all claims under the Fourth Amendment
    were dismissed.
    7
    The CRA, like its federal corollary, 42 U.S.C.A. § 1983,
    permits government officials to raise qualified immunity as a
    defense.   “Qualified immunity is a doctrine that shields
    government officials from a suit for civil damages when ‘their
    conduct does not violate clearly established statutory or
    constitutional rights of which a reasonable person would have
    known.’”   Gormley v. Wood-El, 
    218 N.J. 72
    , 113 (2014) (quoting
    Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818, 
    102 S. Ct. 2727
    , 2738,
    
    73 L. Ed. 2d 396
    , 410 (1982)).
    “For a right to be clearly established, ‘[t]he contours of
    the right must be sufficiently clear that a reasonable official
    would understand that what he is doing violates that right.’”
    
    Ibid. (alteration in original)
    (quoting Anderson v. Creighton,
    
    483 U.S. 635
    , 640, 
    107 S. Ct. 3034
    , 3039, 
    97 L. Ed. 2d 523
    , 531
    (1987)).   Thus, “[o]fficials are expected to ‘apply general,
    well-developed legal principles’ in ‘analogous factual
    situations’” rather than “require ‘relatively strict factual
    identity’ between applicable precedent and the case at issue.”
    
    Id. at 114
    (quoting Stoneking v. Bradford Area Sch. Dist., 
    882 F.2d 720
    , 726 (3d Cir. 1989)).
    B.
    Article I, Paragraph 7 of the New Jersey Constitution
    provides “[t]he right of the people to be secure in their
    persons [and] houses . . . against unreasonable searches and
    8
    seizures, shall not be violated.”      N.J. Const. art. I, ¶ 7; see
    also U.S. Const. amend. IV (same).      The “chief evil” against
    which Article I, Paragraph 7 of our State Constitution and the
    Fourth Amendment are directed is the unlawful entry of the home
    by government officials.    State v. Walker, 
    213 N.J. 281
    , 289
    (2013) (quoting State v. Hutchins, 
    116 N.J. 457
    , 462-63 (1989)).
    Indeed, “[t]he sanctity of one’s home is among our most
    cherished rights.”    State v. Frankel, 
    179 N.J. 586
    , 611, cert.
    denied, 
    543 U.S. 876
    , 
    125 S. Ct. 108
    , 
    160 L. Ed. 2d
    128 (2004).
    The search or seizure of a home without a warrant is
    presumptively unreasonable and prohibited unless the police
    possess probable cause and act under exigent circumstances or,
    alternatively, receive the consent of the homeowner.        State v.
    Johnson, 
    193 N.J. 528
    , 552 (2008).
    Consent is not an issue in this case.      Brown exercised a
    fundamental constitutional right:      she refused to give the State
    Police detectives consent to enter or search her apartment and
    insisted they obtain a warrant.       See 
    Frankel, supra
    , 179 N.J. at
    611.    “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.”       
    Ibid. No other exception
    to the warrant requirement permitted the
    State Police to seize or enter Brown’s apartment.       Detective
    9
    Steet cannot rely on the exigent-circumstances exception.     “For
    purposes of a warrantless search, exigent circumstances are
    present when law enforcement officers do not have sufficient
    time to obtain any form of warrant.”    
    Johnson, supra
    , 193 N.J.
    at 556 n.7.    For example, when police officers have probable
    cause to conduct a search but insufficient time to secure a
    warrant before the potential destruction of evidence,
    exigent circumstances are present.     
    Hutchins, supra
    , 116 N.J. at
    464.
    Here, the State Police detectives had probable cause to
    apply for a warrant to search Brown’s apartment before they
    arrived at Brown’s home and made their consent request.     Instead
    of getting a warrant, however, they took the more convenient
    path.    The search or seizure of a home cannot be justified by a
    claim of exceptional or exigent circumstances when “[n]o reason
    is offered for not obtaining a search warrant except the
    inconvenience to the officers and some slight delay necessary to
    prepare papers and present the evidence to a magistrate.”
    Johnson v. United States, 
    333 U.S. 10
    , 14-15, 
    68 S. Ct. 367
    ,
    369, 
    92 L. Ed. 436
    , 440-41 (1948).
    The police, moreover, cannot create their own exigency to
    bypass the warrant requirement.    See 
    Hutchins, supra
    , 116 N.J.
    at 475-76.    To satisfy the exigent circumstances exception, the
    State must establish that the “exigent circumstances were not
    10
    police-created.”   
    Walker, supra
    , 213 N.J. at 295.    The position
    taken by Detective Steet is that once he and Detective Eskridge
    disclosed to Brown that they needed to search her apartment for
    a stolen locket, her denial of consent gave them a basis to
    believe she would conceal or destroy potential evidence and
    therefore a basis to secure the apartment.     That reasoning
    suggests that the detectives not only drew an impermissible
    inference that Brown would engage in wrongdoing from the
    assertion of her constitutional right, but also created the very
    exigency that justified their violation of the warrant
    requirement.
    The majority agrees that exigency did not justify the
    seizure of or entry into Brown’s apartment.     Ante at ___ (slip
    op. at 36-37).   Nevertheless, the majority mistakenly suggests
    that Illinois v. McArthur, 
    531 U.S. 326
    , 
    121 S. Ct. 946
    , 148 L.
    Ed. 2d 838 (2001), left uncertain the law concerning when and
    how police officers may secure a home while awaiting a warrant.
    Ante at ___ (slip op. at 23-24).      A close look at McArthur,
    however, reveals that the United States Supreme Court applied
    garden-variety notions of exigency to justify the securing of
    the home in that case.
    IV.
    In 
    McArthur, supra
    , for the purpose of keeping the peace,
    two police officers accompanied Tera McArthur to the trailer
    11
    where she lived with the defendant -- her husband -- so she
    could remove her belongings.     531 U.S. at 
    328, 121 S. Ct. at 948
    , 
    148 L. Ed. 2d
    at 846.   After Tera emerged from the trailer,
    where the defendant was present, she told one of the officers
    that the defendant had “dope” in the trailer and had just slid
    some “underneath the couch.”     
    Id. at 329,
    121 S. Ct. at 948-49,
    
    148 L. Ed. 2d
    at 846.   That officer knocked on the trailer’s
    door, told the defendant what his wife had said, and asked for
    consent to search the trailer.     
    Id. at 329,
    121 S. Ct. at 949,
    
    148 L. Ed. 2d
    at 846.   The defendant denied consent.      
    Ibid. The officer told
    the defendant, who at this point was on the
    trailer’s porch, that he could not reenter the trailer unless
    escorted by an officer.   
    Ibid. In the meantime,
    the other
    officer was sent to secure a search warrant.     
    Ibid. In less than
    two hours, the other officer obtained a warrant, and the
    ensuing search of the trailer uncovered marijuana.       
    Ibid. The Supreme Court
    upheld the temporary securing of the
    trailer as reasonable because the case “involve[d] a plausible
    claim of specially pressing or urgent law enforcement need,
    i.e., ‘exigent circumstances.’”     Id. at 
    331, 121 S. Ct. at 950
    ,
    
    148 L. Ed. 2d
    at 847 (emphasis added).    The Court specifically
    found that “the police had good reason to fear that, unless
    restrained, [the defendant] would destroy the drugs before they
    could return with a warrant.”     
    Id. at 332,
    121 S. Ct. at 950,
    12
    
    148 L. Ed. 2d
    at 848.   That was so because, before seeking the
    defendant’s consent to search, the police had reason to believe
    that the defendant could deduce that his wife told them about
    the marijuana stash.    
    Ibid. Thus, the police
    came to a fair and
    logical conclusion that the defendant, “suspecting an imminent
    search, would, if given the chance, get rid of the drugs fast.”
    
    Ibid. The present case
    and McArthur contrast in many ways.      In
    our case, Brown’s denial of entry triggered the police-created
    exigent circumstances that led to the seizure of her apartment.
    Importantly, Brown was not a suspect, and the police had no
    articulable basis to believe she would destroy evidence of a
    crime.
    In McArthur, the police could not have secured a search
    warrant before they accompanied the wife to the trailer.    The
    police learned that the defendant had a stash of marijuana in
    the trailer after arriving on the scene and then immediately
    concluded he might destroy the evidence before they could secure
    a warrant.   That is the essence of exigent circumstances -- the
    urgent need to preserve evidence pending a warrant application.
    Another key point in McArthur, unlike the present case, is that
    exigent circumstances preexisted the consent-to-search request
    made by the police.
    In short, the Supreme Court in McArthur applied well-
    13
    established principles concerning the exigent-circumstances
    exception to the warrant requirement.    See 
    id. at 330-33,
    121 S.
    Ct. at 949-51, 
    148 L. Ed. 2d
    at 847-49.    The Court upheld the
    “temporary” seizure of the trailer because the police action
    “was supported by probable cause and was designed to prevent the
    loss of evidence while the police diligently obtained a warrant
    in a reasonable period of time.”    Id. at 
    334, 121 S. Ct. at 951
    -
    52, 148 L .Ed. 2d at 849 (emphasis added).
    In the wake of McArthur, courts understood, as they always
    have, that the securing of a home -- awaiting a warrant
    application -- cannot be justified absent exigent circumstances.
    See, e.g., Modrell v. Hayden, 
    636 F. Supp. 2d 545
    , 557 (W.D. Ky.
    2009) (“McArthur did not invalidate the ‘presumptively
    unreasonable’ standard normally applied when determining whether
    exigent circumstances justified a warrantless entry.”); United
    States v. Sims, 
    435 F. Supp. 2d 542
    , 548 (S.D. Miss. 2006)
    (“[U]nless exigent circumstances exist (or unless another
    exception to the warrant requirement is applicable), a law
    enforcement official has no right to enter a dwelling to detain
    a suspect in an attempt to secure the premises.”).3
    3
    Before McArthur, too, courts required the presence of exigent
    circumstances to justify the securing of a home while pending a
    warrant application. See, e.g., United States v. Radka, 
    904 F.2d 357
    , 361 (6th Cir. 1990) (“[W]arrantless entry into the
    home of a suspected drug trafficker, effected without an
    objectively reasonable basis for concluding that the destruction
    14
    V.
    Additionally, I do not agree with the majority’s assertion
    that, since McArthur, the Appellate Division and Law Division
    have “not advanced a uniform interpretation of the law”
    concerning the appropriate standard for securing a home pending
    a search-warrant application.   Ante at ___ (slip op. at 24-25).
    Our courts recognize that the exigent-circumstances doctrine is
    the governing standard.   See State v. Myers, 
    357 N.J. Super. 32
    ,
    37 (App. Div. 2003) (framing relevant inquiry as “whether
    exigent circumstances justified the securing of the [home in
    question] while the police sought a search warrant”); State v.
    Josey, 
    290 N.J. Super. 17
    , 24 (App. Div.), certif. denied, 
    146 N.J. 497
    (1996) (observing that “a warrantless entry into a home
    may be valid if warranted by exigent circumstances, such as hot
    pursuit of an armed felon . . . [or t]he potential destruction
    of evidence”); State v. De Lane, 
    207 N.J. Super. 45
    , 50 (App.
    of evidence is imminent, does not pass constitutional muster.”);
    State v. Martin, 
    679 P.2d 489
    , 497-98 (Ariz. 1984) (finding
    warrantless seizure of home not justified under exigency
    exception because inferences did not support belief that
    evidence would be destroyed in home pending search warrant);
    State v. Dorson, 
    615 P.2d 740
    , 745 (Haw. 1980) (finding that
    detention of several people in home while awaiting warrant was
    “patently inexcusable” and holding that “required condition
    precedent to the entry [of home pending warrant] has been the
    existence of exigent circumstances”); State v. Bean, 
    572 P.2d 1102
    , 1105 (Wash. 1978) (concluding that no exigent
    circumstances justified police entering defendant’s home to
    “secure” it while awaiting search warrant).
    15
    Div. 1986) (finding that absent exigent circumstances police
    could not enter home absent warrant); State v. Speid, 255 N.J.
    Super. 398, 403, 406 (Law Div. 1992) (stating, in part, that
    police acted unconstitutionally by securing and searching
    defendant’s home without warrant absent exigent circumstances or
    consent).
    VI.
    The police are obliged to obey the Constitution.    Denise
    Brown had a clearly established right to insist that the police
    obtain a warrant before searching her home for a locket she told
    them she did not have.   The police could have secured that
    warrant earlier but chose not to do so.    She had a clearly
    established right to remain secure in her home, pending the
    arrival of that warrant, given the absence of any true exigent
    circumstances to justify a seizure of her apartment.    Yet, the
    police treated her like a prisoner in her own home for three-
    and-one-half hours.
    Like the Appellate Division, I find that Detective Steet
    violated Brown’s clearly established rights protected by Article
    I, Paragraph 7 of our State Constitution, and therefore he is
    not entitled to the protection of qualified immunity.    The
    majority has denied Brown her rightful claim to a recovery for
    the violation of her civil rights.
    Accordingly, I respectfully dissent.
    16