In 2016, the New Jersey Supreme Court issued two opinions of particular importance for attorneys who regularly handle criminal domestic violence cases in New Jersey.  In State v. Bryant, decided on November 10, 2016, the Court suppressed evidence found during a protective sweep search of a home after a 911 call reporting a crime of domestic violence.  The opinion is extremely important for any defendant who has been charged with a crime based upon evidence uncovered during a police response to a domestic violence call.

Police generally cannot enter a home without a search warrant.  When certain circumstances are present, however, there are recognized exceptions to warrant requirement.  One such exception is consent; a resident may invite the police into his or her home without requiring the police to obtain a warrant.  Another exception is the “protective sweep”; the police may enter a home to conduct a quick search for potentially dangerous persons if they are already lawfully within a residence and they develop a reasonable suspicion that that there is an individual in the residence that poses a danger. If during a lawful protective sweep the police find in plain view something that is clearly contraband, such as illegal drugs, the police may lawfully seize the contraband and prosecute the possessor.

In Bryant, officers responded to a home from which a 911 call was placed by a woman who alleged that her boyfriend had struck her.  While two officers spoke to a woman who was outside the home, crying inside a car in the driveway, two other officers knocked on the door to the house.  When a man answered, the officers instructed him to take a seat on the couch inside.  One of the officers questioned the man while the other conducted a protective sweep of the house. The officers did not get any information about the domestic violence incident from either the woman or the man prior to conducting the sweep. During the protective sweep, the officer found marijuana and a firearm.

The Supreme Court ruled that the marijuana and the firearm must be suppressed because the evidence was uncovered during an illegal warrantless search of the home. The protective sweep was improper because the police conducted it without developing any facts that would suggest there might be another person inside the house who possesses a danger. In essence, the Bryant decision stands for the proposition that a 911 call alleging domestic violence within a home, without more, does not give the police reasonable suspicion to conduct a protective sweep of the home where the incident took place.

In the other case, In re Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M., decided on June 30, 2016, the Supreme Court ordered the permanent confiscation of a police officer’s firearms and firearms purchaser identification card, even after the underlying criminal and civil domestic violence complaints against the police officer had been dismissed.

Under New Jersey law, police responding to a domestic violence incident are entitled to seize any weapon on the premises that would expose the victim to a risk of serious bodily injury.  If the defendant is charged with a crime of domestic violence or becomes subject to a domestic violence restraining order, the police must seize any weapons registered to or owned by the defendant.  The State may then seek forfeiture of the weapons and the defendant’s firearms purchaser identification card in the family court. The forfeiture may be predicated upon any one of several reasons, including the defendant’s mental unfitness to possess weapons, or that the defendant became legally unable to possess certain weapons due to the issuance of a final restraining order or conviction of a crime.  The State may also seek permanent confiscation of weapons and firearms purchaser identification cards if it can demonstrate to the family court that the defendant’s possession of weapons poses a continued threat to the victim.  This is true even where the criminal charges and restraining order are ultimately dismissed or dropped by the victim.

In In re Weapons of F.M., a police officer responding to a domestic violence call observed F.M., who was himself a police officer, throw his estranged wife into a stone retaining wall.  F.M. was charged with simple assault and the wife sought a restraining order. F.M. claimed that he was merely attempting to remove his wife from holding onto his car to prevent his court-ordered visitation with his children. Ultimately, the restraining order was dismissed by the family court judge, and the municipal court dismissed F.M.’s assault charge after the defendant agreed to attend court-ordered counseling.

The State nevertheless proceeded with a motion to forfeit F.M.’s weapons and firearms purchaser identification card based upon his history of domestic violence, arguing that the return of his weapons would not be in the interest of public safety.  A great deal of evidence was presented to the family court, including contradictory testimony from F.M. and his wife, as well as the testimony of mental health experts, presented by the State, who concluded that F.M. suffered from narcissistic and anti-social tendencies. The family court rejected the State’s arguments and returned F.M.’s weapons and firearms purchaser identification card.

The Supreme Court reversed the family court’s decision, as well as an Appellate Division decision upholding the family court.  The significance of In re Weapons of F.M. is that the Supreme Court, which is ordinarily expected to defer to the factual and credibility determinations of the family court in gun forfeiture cases, took the extraordinary step of concluding that the family court’s decision to rearm the defendant was “manifestly unsupported” by competent evidence.

The Supreme Court’s decision, in essence, was that the family court dismissed the State’s claim without addressing certain critical evidence that should have been addressed on the record, and for improperly discounting the unrefuted expert testimony. The Supreme Court’s decision is long, complex, and very fact-dependent, but the decision signals the Court’s insistence that rearming decisions be made with care, even if the underlying criminal charges and/or restraining orders are dismissed by other courts.  It also suggests that if the State relies on expert testimony in support of its motion to forfeit a defendant’s weapon, a defendant would be well-served to obtain his or her own expert to refute the State’s evidence, because the Court found it significant that the State’s expert evidence was never refuted by the defendant.

Stahl Criminal Defense Lawyers aggressively defend individuals charged with domestic violence and criminal charges. Andrew Olesnycky, Esq.has served as the head of the Union County Prosecutor’s Office’s Domestic Violence Unit, and the domestic violence supervisor. He represents those accused of domestic violence in criminal, civil, and administrative proceedings, as well as victims of domestic violence seeking restraining orders in family court. Mr. Olesnycky’s cases have been widely covered in the news, including the New York Times, CBS This Morning, NBC4 New York, the Associated Press, the Boston Globe,, the Star Ledger, and ESPN. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at