Drizzt
Member
Thought the lawyers and wannabes might be interested in this...
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New Jersey Law Journal
March 10, 2003
LENGTH: 1551 words
HEADLINE: State v. Jones,
New Jersey Superior Court, Appellate Division
CRIMINAL PRACTICE -- No-Knock Warrants -- Search and Seizure
CASE-INFO: A-4414-01T4; Appellate Division; opinion by Weissbard, J.A.D.; decided and approved for publication February 28, 2003. Before Judges Kestin, Fall and Weissbard. On appeal from the Law Division, Cape May County, 01-07-0456. [Sat below: Judge Alvarez.] DDS No. 14-2-2965
BODY:
Arthur Jay Jones was charged in a nine-count indictment. After his motion to suppress evidence obtained pursuant to a search warrant was denied, he pleaded guilty to third-degree possession of a controlled dangerous substance. In return, the state agreed to dismiss the remaining counts and recommend that defendant be sentenced to a four-year term of imprisonment, consecutive to any violation of probation he was then serving; he was sentenced accordingly.
The following facts were elicited during the suppression motion. In June 2001, members of the Cape May County Prosecutor's Office Narcotics Task Force [NTF] received information, from a confidential informant of "unknown reliability," that Darryl Jones, Kenneth Powell and Stephanie Williams were distributing drugs from a single-family house, 4009 Park Boulevard, Wildwood. With his aid, they conducted three controlled buys of cocaine there. They would photocopy and record the serial numbers of the money to be used, search the informant to make sure that he had neither drugs nor money on him, and then send him with the marked "buy" money to the house, which was constantly under surveillance by NTF agents, where he would allegedly purchase rock cocaine.
NTF Agent Darrell Shelton applied to a municipal court judge for a warrant to search 4009 Park Boulevard and to search the persons of "any person reasonably believed or identified to have [a] connection to illegal property or contraband during the execution of the search warrant." He asked that the warrant be executed "without knocking and announcing the identity and purpose" of the officers," due to the "easy disposal of the evidence" and, based on the fact that Darryl Jones had been arrested in 1994 for unlawful possession of a weapon and aggravated assault with a weapon, for the "physical protection of the officers." The judge granted Shelton the "no-knock" warrant.
When the police executed the warrant they found defendant, Arthur Jones, seated at a table in the apartment, with cocaine, plastic baggies and a razor blade on the table. He was arrested and searched; two of the marked bills used in the controlled buys were on his person.
Held: State v. Sullivan, 169 N.J. 204 [2001], addressed the validity of a search warrant based on information from an informant of untested reliability and two controlled buys. The Court rejected the state's suggestion "that a controlled buy conclusively establishes probable cause," opting instead for a totality-of-circumstances approach, and concluded that the corroborative information gleaned from gas and electric and telephone records, and the confirmation that the substance was cocaine, demonstrated probable cause. Id. at 216.
A comparison with Sullivan is instructive, if not dispositive. In this case, no question arises as to whether the informant went to the residence for which the warrant was obtained. On the other hand, unlike in Sullivan, the officers here did nothing to confirm that the suspects lived in or were otherwise connected to the residence. Most significant is that the officers did nothing -- at least as far as the warrant application revealed -- to confirm that the substance brought to them by the informant after his "buy" was actually cocaine. Although a full laboratory test may not be available under the time constraints of an ongoing investigation, not even a routine field test was conducted. There must at least be a scientific probability that the substance is what it is asserted to be.
Even according the warrant the substantial deference to which it is entitled, probable cause was not established. Also, the warrant was invalid because it was executed, according to its terms, without any pre-entry announcement of purpose:
The requirement that ... officers knock and announce their presence before entering a dwelling predates our Federal and State Constitutions [and] reflects "the ancient adage that a man's house is his castle." State v. Johnson, 168 N.J. 608, 615 [2001].
Miller v. United States, 78 S.Ct. 1190, 1194 [1958], took note of William Pitt's 1763 articulation of the principle:
The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake, the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement!
The rule serves a number of purposes: [1] decreasing the potential for violence; [2] protecting privacy; and [3] preventing the physical destruction of property. 2 Wayne R. LaFave, Search and Seizure § 4.8[a] at 599 [3d ed. 1978]. However, it is not absolute. State v. Fair, 45 N.J. 77, 86 [1965], outlined the three main exceptions: if [1] immediate action is required to preserve evidence; [2] the officer's peril would be increased; or [3] the arrest would be frustrated. Nevertheless, State v. Johnson, 168 N.J. at 617, recognized that these exceptions could "swallow the rule," particularly in drug investigations. Richards v. Wisconsin, 117 S.Ct. 1416 [1997], states that "there can be no blanket exception to the knock-and-announce rule in felony drug cases consistent with the Fourth Amendment. Johnson noted that:
[T]he task of courts evaluating the propriety of a no-knock provision is to determine whether the applying officer has articulated a reasonable suspicion to believe that one or more exceptions ... are justified... [This] "requires at least a minimal level of objective justification." 168 N.J. at 618.
The Court therefore held that police must articulate reasons for a "reasonable, particularized suspicion that a no-knock entry is required," and may base those reasons on "the totality of the circumstances," with a minimal level of objective justification; "it may not be based on a mere hunch." Id. at 619. The facts of Johnson parallel those in this case to a substantial degree.
Shelton's application claimed, first, that the evidence could be easily destroyed, but, as noted in Johnson, small quantities of narcotics sold out of a home are almost always susceptible to destruction or disposal. If such a reason alone justified a no-knock entry, it would justify it "in virtually every instance involving a residential search, thereby resembling the kind of blanket rule forbidden by Richards." To satisfy the destruction-of-evidence exception, the police must articulate some specific reason for reasonably believing that destruction of evidence is "more than a hypothetical possibility." Johnson looked to State v. Bilancio, 318 N.J. Super. 408, 417 [App. Div.], certif. denied, 160 N.J. 478 [1999], where an application for a no-knock warrant:
... "did not set forth any information concerning the size or layout of defendant's property, whether persons other than defendant resided there, or whether the police reasonably expected [anyone] involved in drug distribution to be present when the search was conducted." 168 N.J. at 620.
As in Bilancio, none of those factors was set out in this case. The applying officer's "blanket" exception is not acceptable. In none of the three controlled buys did the informant ever suggest that weapons were present. Other than Darryl Jones' prior arrest, the officer offered no evidence that any person named in the warrant had a propensity for violence, or would even be present when the warrant was executed. It is significant that Darryl Jones was not convicted of assault; rather, he pleaded down to a fourth-degree weapons charge.
Other jurisdictions have recognized that prior arrests do not give rise to a "reasonable suspicion" that would permit avoidance of the knock-and-announce requirement. See, e.g., State v. Eason, 629 N.W.2d 625 [Wis. 2001]; State v. Botelho, 638 N.W.2d 770 [Minn. App. 2002], While State v. Johnson, 168 N.J. at 624-25, suggests that a person's criminal history might support a "reasonable suspicion" that officer safety could be compromised without a no-knock entry, a stale prior arrest does not provide such a basis. Furthermore, in denying the motion to suppress, the judge's linkage between drugs and weapons appears to approach, if not adopt, the kind of blanket rule forbidden by Richards.
For either of the reasons discussed, the search was unlawful and the motion to suppress should have been granted.
Reversed.
-- Digested by P.R. Chenoweth
[The slip opinion is 20 pages long.]
For appellant -- Yvonne Smith Segars, Public Defender [Sandra K. Manning, designated counsel, on the brief]. For respondent -- Peter C. Harvey, Acting Attorney General [Johanna Barba, Deputy Attorney General, on the brief].
-----------------------------------------------------------------------------------
New Jersey Law Journal
March 10, 2003
LENGTH: 1551 words
HEADLINE: State v. Jones,
New Jersey Superior Court, Appellate Division
CRIMINAL PRACTICE -- No-Knock Warrants -- Search and Seizure
CASE-INFO: A-4414-01T4; Appellate Division; opinion by Weissbard, J.A.D.; decided and approved for publication February 28, 2003. Before Judges Kestin, Fall and Weissbard. On appeal from the Law Division, Cape May County, 01-07-0456. [Sat below: Judge Alvarez.] DDS No. 14-2-2965
BODY:
Arthur Jay Jones was charged in a nine-count indictment. After his motion to suppress evidence obtained pursuant to a search warrant was denied, he pleaded guilty to third-degree possession of a controlled dangerous substance. In return, the state agreed to dismiss the remaining counts and recommend that defendant be sentenced to a four-year term of imprisonment, consecutive to any violation of probation he was then serving; he was sentenced accordingly.
The following facts were elicited during the suppression motion. In June 2001, members of the Cape May County Prosecutor's Office Narcotics Task Force [NTF] received information, from a confidential informant of "unknown reliability," that Darryl Jones, Kenneth Powell and Stephanie Williams were distributing drugs from a single-family house, 4009 Park Boulevard, Wildwood. With his aid, they conducted three controlled buys of cocaine there. They would photocopy and record the serial numbers of the money to be used, search the informant to make sure that he had neither drugs nor money on him, and then send him with the marked "buy" money to the house, which was constantly under surveillance by NTF agents, where he would allegedly purchase rock cocaine.
NTF Agent Darrell Shelton applied to a municipal court judge for a warrant to search 4009 Park Boulevard and to search the persons of "any person reasonably believed or identified to have [a] connection to illegal property or contraband during the execution of the search warrant." He asked that the warrant be executed "without knocking and announcing the identity and purpose" of the officers," due to the "easy disposal of the evidence" and, based on the fact that Darryl Jones had been arrested in 1994 for unlawful possession of a weapon and aggravated assault with a weapon, for the "physical protection of the officers." The judge granted Shelton the "no-knock" warrant.
When the police executed the warrant they found defendant, Arthur Jones, seated at a table in the apartment, with cocaine, plastic baggies and a razor blade on the table. He was arrested and searched; two of the marked bills used in the controlled buys were on his person.
Held: State v. Sullivan, 169 N.J. 204 [2001], addressed the validity of a search warrant based on information from an informant of untested reliability and two controlled buys. The Court rejected the state's suggestion "that a controlled buy conclusively establishes probable cause," opting instead for a totality-of-circumstances approach, and concluded that the corroborative information gleaned from gas and electric and telephone records, and the confirmation that the substance was cocaine, demonstrated probable cause. Id. at 216.
A comparison with Sullivan is instructive, if not dispositive. In this case, no question arises as to whether the informant went to the residence for which the warrant was obtained. On the other hand, unlike in Sullivan, the officers here did nothing to confirm that the suspects lived in or were otherwise connected to the residence. Most significant is that the officers did nothing -- at least as far as the warrant application revealed -- to confirm that the substance brought to them by the informant after his "buy" was actually cocaine. Although a full laboratory test may not be available under the time constraints of an ongoing investigation, not even a routine field test was conducted. There must at least be a scientific probability that the substance is what it is asserted to be.
Even according the warrant the substantial deference to which it is entitled, probable cause was not established. Also, the warrant was invalid because it was executed, according to its terms, without any pre-entry announcement of purpose:
The requirement that ... officers knock and announce their presence before entering a dwelling predates our Federal and State Constitutions [and] reflects "the ancient adage that a man's house is his castle." State v. Johnson, 168 N.J. 608, 615 [2001].
Miller v. United States, 78 S.Ct. 1190, 1194 [1958], took note of William Pitt's 1763 articulation of the principle:
The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake, the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement!
The rule serves a number of purposes: [1] decreasing the potential for violence; [2] protecting privacy; and [3] preventing the physical destruction of property. 2 Wayne R. LaFave, Search and Seizure § 4.8[a] at 599 [3d ed. 1978]. However, it is not absolute. State v. Fair, 45 N.J. 77, 86 [1965], outlined the three main exceptions: if [1] immediate action is required to preserve evidence; [2] the officer's peril would be increased; or [3] the arrest would be frustrated. Nevertheless, State v. Johnson, 168 N.J. at 617, recognized that these exceptions could "swallow the rule," particularly in drug investigations. Richards v. Wisconsin, 117 S.Ct. 1416 [1997], states that "there can be no blanket exception to the knock-and-announce rule in felony drug cases consistent with the Fourth Amendment. Johnson noted that:
[T]he task of courts evaluating the propriety of a no-knock provision is to determine whether the applying officer has articulated a reasonable suspicion to believe that one or more exceptions ... are justified... [This] "requires at least a minimal level of objective justification." 168 N.J. at 618.
The Court therefore held that police must articulate reasons for a "reasonable, particularized suspicion that a no-knock entry is required," and may base those reasons on "the totality of the circumstances," with a minimal level of objective justification; "it may not be based on a mere hunch." Id. at 619. The facts of Johnson parallel those in this case to a substantial degree.
Shelton's application claimed, first, that the evidence could be easily destroyed, but, as noted in Johnson, small quantities of narcotics sold out of a home are almost always susceptible to destruction or disposal. If such a reason alone justified a no-knock entry, it would justify it "in virtually every instance involving a residential search, thereby resembling the kind of blanket rule forbidden by Richards." To satisfy the destruction-of-evidence exception, the police must articulate some specific reason for reasonably believing that destruction of evidence is "more than a hypothetical possibility." Johnson looked to State v. Bilancio, 318 N.J. Super. 408, 417 [App. Div.], certif. denied, 160 N.J. 478 [1999], where an application for a no-knock warrant:
... "did not set forth any information concerning the size or layout of defendant's property, whether persons other than defendant resided there, or whether the police reasonably expected [anyone] involved in drug distribution to be present when the search was conducted." 168 N.J. at 620.
As in Bilancio, none of those factors was set out in this case. The applying officer's "blanket" exception is not acceptable. In none of the three controlled buys did the informant ever suggest that weapons were present. Other than Darryl Jones' prior arrest, the officer offered no evidence that any person named in the warrant had a propensity for violence, or would even be present when the warrant was executed. It is significant that Darryl Jones was not convicted of assault; rather, he pleaded down to a fourth-degree weapons charge.
Other jurisdictions have recognized that prior arrests do not give rise to a "reasonable suspicion" that would permit avoidance of the knock-and-announce requirement. See, e.g., State v. Eason, 629 N.W.2d 625 [Wis. 2001]; State v. Botelho, 638 N.W.2d 770 [Minn. App. 2002], While State v. Johnson, 168 N.J. at 624-25, suggests that a person's criminal history might support a "reasonable suspicion" that officer safety could be compromised without a no-knock entry, a stale prior arrest does not provide such a basis. Furthermore, in denying the motion to suppress, the judge's linkage between drugs and weapons appears to approach, if not adopt, the kind of blanket rule forbidden by Richards.
For either of the reasons discussed, the search was unlawful and the motion to suppress should have been granted.
Reversed.
-- Digested by P.R. Chenoweth
[The slip opinion is 20 pages long.]
For appellant -- Yvonne Smith Segars, Public Defender [Sandra K. Manning, designated counsel, on the brief]. For respondent -- Peter C. Harvey, Acting Attorney General [Johanna Barba, Deputy Attorney General, on the brief].
