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State v. Bilancio

February 19, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARIO A. BILANCIO, DEFENDANT-APPELLANT.



Before Judges Havey, Skillman and P.g. Levy.

The opinion of the court was delivered by: Skillman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 4, 1999

On appeal from Superior Court of New Jersey, Law Division, Burlington County.

In Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), the Supreme Court held that the common law requirement that the police knock and announce their presence before entering a residence to execute a warrant is incorporated in the Fourth Amendment. However, the Court also stated that this is a flexible requirement which does not apply if there are countervailing law enforcement interests which justify a "no-knock" entry or if it would be futile for the police to knock and announce their presence. We conclude in this case that the knock and announce requirement does not apply if the police execute a warrant for the search of an unoccupied residence, because it would be futile for the police to announce their presence in that circumstance.

Defendant was indicted for possession of methamphetamine with the intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and 2C:35-5b(8); possession of a methamphetamine, in violation of N.J.S.A. 2C:35-10a(1); possession of lysergic acid diethylamide (LSD) with the intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and 2C:35-5b(6); possession of lysergic acid diethylamide (LSD), in violation of N.J.S.A. 2C:35-10a(1); possession of marijuana with the intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and 2C:35-5b(10); possession of marijuana, in violation of N.J.S.A. 2C:35-10a(3); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2); possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1); possession of hashish with the intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and 2C:35-5b(11); possession of hashish, in violation of N.J.S.A. 2C:35-10a(3); possession of fifty three M-100's, in violation of N.J.S.A. 2C:39-3a; possession of a switchblade knife, in violation of N.J.S.A. 2C:39-3e; possession of hollow point bullets, in violation of N.J.S.A. 2C:39-3f; and possession of a weapon by a convicted felon, in violation of N.J.S.A. 2C:39-7a.

Defendant filed a motion to suppress, contending that the warrant authorizing the search which revealed the evidence against him was issued on the basis of an affidavit which failed to establish probable cause, incorrectly identified the property to be searched and did not set forth sufficient information to justify a no-knock entry into his residence. At the hearing on the motion, the State introduced into evidence the affidavit in support of the application for the search warrant and the warrant. The warrant affidavit, submitted by a detective in the Burlington Township Police Department, stated that a confidential informant, who had proven reliable in past investigations, informed him in September 1992 that a person known as "Archie" was dealing drugs from a location later identified as defendant's residence. The detective stated that another confidential informant told him a year and a half later that a person known as "Archie," whose real name is Mario, was selling methamphetamine, cocaine and marijuana at the same location. On April 4, and 17, 1994, this confidential informant made controlled purchases of methamphetamine and cocaine from defendant at his residence. Based on this evidence, a Superior Court Judge issued a warrant for the search of defendant's residence which authorized a no-knock entry. The police discovered various drugs and weapons when they executed the warrant. The parties stipulated that no one was home when the police executed the warrant and that the police did not knock and announce their presence before they entered.

The trial court sustained the validity of the warrant and denied defendant's motion to suppress. The court observed in the course of its opinion that "the generalized information" submitted in support of the application for authorization to make a no-knock entry into defendant's residence "is thinner than what we ought to expect of police in this regard." However, the court concluded that the requirement that the police knock and announce their presence "is not implicated when a warrant is executed when there's nobody home at the residence."

Pursuant to a plea bargain, defendant subsequently pled guilty to possession of methamphetamine with the intent to distribute, possession of cocaine with the intent to distribute, possession of lysergic acid diethylamide and possession of a weapon by a convicted felon. In accordance with the plea agreement, the court sentenced defendant to concurrent five year terms of imprisonment, with eighteen months of parole ineligibility, for possession of methamphetamine with the intent to distribute, possession of cocaine with the intent to distribute and possession of lysergic acid dethylinide. The court also imposed a concurrent eighteen month term of imprisonment for possession of a weapon by a convicted felon.

On appeal from the denial of his motion to suppress, defendant makes the following arguments:

I. THE INFORMATION OBTAINED FROM A CONFIDENTIAL INFORMANT IN SEPTEMBER OF 1992, WAS STALE AND COULD NOT BE CONSIDERED BY THE COURT IN IT'S DETERMINATION OF PROBABLE CAUSE.

II. INFORMATION SUPPLIED BY THE CONFIDENTIAL INFORMANT WAS NOT FROM PERSONAL KNOWLEDGE AND THE COURT HAD NO ABILITY TO DETERMINE THE VERACITY OF THE INFORMANT'S INFORMATION.

III. THE APPLICATION FOR THE WARRANT LACKED PROBABLE CAUSE TO BELIEVE THAT CONTRABAND WOULD BE ...


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