The novel question presented in this case is whether the destruction of the property of an innocent third party by the police pursuant to a lawfully executed search warrant requires the innocent third party to be compensated for his loss. The matter was tried without a jury. This opinion is an inclusive supplement to the court's oral decision from the bench.
The facts are as follows. On June 27, 1991, at 7:00 p.m., a no-knock search warrant was executed by the Atlantic City Police who forcefully entered a second floor apartment at 1721 McKinley Avenue, Atlantic City, owned by the plaintiff. The police made two arrests, including the tenant, confiscated $2,867 in U.S. currency in various denominations, 69 glassine bags, all of which contained a white powder substance, and at least one of which field-tested positive for heroin. Various other narcotics paraphernalia were also found.
During the course of the search and arrests three doors at the premises were broken. The total cost of labor and material necessary to repair the doors was $900.97.
It is undisputed that the police acted properly in executing the warrant. There is no allegation that they used excessive force or were negligent. Similarly, it is not alleged, nor is there any evidence, that the plaintiff had anything to do with the narcotics activity. His sole involvement is as the landlord and owner of the property. Plaintiff seeks compensation for the damage done by the police in the lawful execution of the search warrant. There appear to be two possible theories of liability.
First, can plaintiff recover under a tort theory? I find that he cannot. There is no allegation of negligence or excessive force used by the police. The Tort Claims Act, specifically N.J.S.A. 59:3-3, provides that a public employee is not liable if he acts in good faith in the execution or enforcement of any law. N.J.S.A. 59:3-9 provides that a public employee is not liable for his entry upon any property where such entry is expressly or impliedly authorized by law. Here, as stated, there is no evidence of misconduct or negligence on the part of the police. Entry was made as a result of a lawfully executed search warrant. No-knock search warrants are valid, State v. Love, 233 N.J. Super. 38, 558 A.2d 15 (App.Div.1989) certif. denied 118 N.J. 188, 570 A.2d 954 (1989), and searches with warrants are presumed valid. State v. Kasabucki, 52 N.J. 110,
244 A.2d 101 (1968). Therefore, on a tort theory, plaintiff's claim must fail.
There is, however, another theory for compensation. Does the destruction of an innocent third party's property by the police while lawfully executing a search warrant constitute a taking under the State and Federal Constitutions? U.S. Const. Amend. V; N.J.S.A. Const. Art. 1 par. 20. If it does, the prohibitions under the Tort Claims Act would be inapplicable. This is an issue of first impression in this jurisdiction.
The concept of whether governmental action amounts to a taking of property has always presented a "vexing and thorny problem." Washington Market Enterprises v. Trenton, 68 N.J. 107, 116, 343 A.2d 408 (1975). "A court assigned to differentiate among impacts which are and are not 'takings' is essentially engaged in deciding when government may execute public programs while leaving associated costs ...