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State v. Johnson

July 10, 2001


The opinion of the court was delivered by: Verniero, J.

Argued January 17, 2001

On certification to the Superior Court, Appellate Division.

While executing a "no-knock" search warrant at a residential apartment, the police seized evidence of illegal drug activity that led to defendant's arrest and conviction. As the name implies, a no-knock warrant authorizes police officers to enter a home or business without first knocking and announcing their presence. The trial court denied defendant's motion to suppress the evidence seized at the apartment. The Appellate Division affirmed. We hold that the record did not adequately justify the issuance of a no-knock warrant in this case. We are thus compelled to set aside defendant's conviction.


These are the pertinent facts. On July 24, 1997, a confidential informant, deemed reliable by the police, informed them that one Jay Cancell had stated that his aunt, Sandra Figaroa, was distributing cocaine and heroin out of her apartment. Cancell told the informant that Figaroa was selling the drugs for her boyfriend, defendant Andre Johnson, whose nickname was "Earthquake." According to Cancell, defendant lived with Figaroa in the apartment, which is located within 1000 feet of a school in North Brunswick. Cancell led the informant to the apartment where Figaroa greeted them and stated that defendant had gone to New York City to pick up one hundred bags of heroin and would be back later that night.

The following day the police conducted a controlled buy of heroin at Figaroa's apartment. The police supplied the informant with $40 and kept him under surveillance as he entered the dwelling. About ten minutes later, the informant met with the police to turn over two bags of a substance that he had purchased inside the apartment. The substance tested positive for heroin. The informant told the police that Figaroa had stated that defendant did not like selling drugs out of a residential dwelling because such activity attracted the attention of law enforcement officers.

On July 30, 1997, Detective Anthony Falcone of the North Brunswick Township police department applied to the municipal court for a warrant to search Figaroa's apartment. In an oral application recorded in the judge's chambers and later transcribed, Detective Falcone described to the court the controlled buy that the police had undertaken with the aid of the informant. (In addition to his oral testimony, Detective Falcone submitted a written certification outlining his credentials and prior experience in conducting drug investigations.) The detective also informed the court that about two months earlier a different informant had told him that a black male named Earthquake was selling large amounts of heroin and cocaine in certain housing projects in New Brunswick. Although she was unsure of Earthquake's address, the informant knew that Earthquake did not live in New Brunswick.

Detective Falcone concluded his recitation of facts by stating "[t]herefore your Honor I'm requesting a no knock search warrant for officers['] safety and it means that the narcotics can be easily [] destroyed and be served within twenty four hours." That one sentence contains the only specific reference to the no-knock entry in the detective's testimony. In issuing the warrant, the court stated, "I have reviewed the testimony and I feel that in this case there is probable cause to show that there is some type of drug activity going on at [Figaroa's address] in North Brunswick and I'm going to issue the search warrant." The court did not specifically comment on the no-knock provision.

The warrant was prepared on a pre-printed form containing certain blank spaces in which the applicant or issuing judge had to describe the place to be searched and the items to be seized, in addition to other pertinent information. The form required the judge to check off one of two boxes to indicate that the police were authorized to execute the warrant either "with," or "without, first knocking and identifying the officers as police officers and the purpose for being at the premises[.]" There was also a space to describe the hours between which the police were authorized to execute the warrant. In pre-printed language, the warrant provided that it had to be executed within ten days from the date it was issued.

The record does not indicate whether Detective Falcone filled in the blank spaces on the warrant form prior to arriving at the court or whether the court completed the form after it heard the detective's testimony. In any event, on the completed warrant executed by the police the box authorizing the police to enter the premises without knocking had been checked off, and "24 HRS" had been written in the space indicating the permissible hours of execution. Based on those filled-in portions of the warrant, the police were authorized to execute it at any time within the ten-day period, day or night, without warning or notice to Figaroa or to any other occupants of her apartment.

Officers from the North Brunswick and New Brunswick police departments and the Middlesex County Prosecutor's Office executed the warrant at about 8:30 p.m. on July 31, 1997. They did not knock or announce their presence, but instead entered the apartment by force. After entering, the officers saw Figaroa run into the bathroom and lock the door behind her. They then forced open the bathroom door and observed Figaroa discard two glassine packets into the toilet. The officers retrieved the two packets, the contents of which subsequently tested positive for heroin.

The police arrested Figaroa and then located defendant in the doorway of a bedroom. The officers secured defendant with handcuffs when he became uncooperative. They searched the premises and found heroin, cocaine, cash suspected to be drug proceeds, and various drug paraphernalia. The police also recovered a purse that contained information revealing that Figaroa's actual name is Sandra Alfonso. A Middlesex County grand jury charged defendant and co-defendant Alfonso with numerous drug offenses, including possession of heroin with intent to distribute within 1000 feet of school property.

Defendant thereafter filed a pro se motion to suppress the evidence seized at the apartment, arguing in his motion papers that in "executing the warrant in the average case a rule of common law that originated in arrest cases suggest[s] that police officers must knock on the door of the premises to be searched and must announce their identity and purpose before using force to enter the location[.]" At a subsequent suppression hearing, however, defense counsel did not advance that argument. Instead, counsel argued that there had been insufficient probable cause for the municipal court to have issued the warrant. The trial court rejected that argument. The court did not address defendant's argument in respect of the no-knock provision.

In March 1998, defendant pleaded guilty to one count of possession of heroin with intent to distribute within 1000 feet of school property. Defendant acknowledged that he had possessed heroin at a location within 1000 feet of a school and that he had intended to distribute the drug to other persons. The court sentenced defendant to a five-year term of imprisonment with a three-year period of parole ineligibility.

Before the Appellate Division, defendant argued that there was insufficient support in the record to justify the issuance of a no-knock warrant. In an unreported opinion, the Appellate Division affirmed the trial court's disposition. The panel concluded that "Detective Falcone's testimony in support of the application for a search warrant set forth sufficiently specific facts to justify the issuance of the ?no-knock' warrant." In the court's view, defendant had failed to overcome the presumption of validity of the no-knock provision. This Court granted defendant's petition for certification. 165 N.J. 486 (2000). The Court also granted the motion of the Attorney General for leave to appear as amicus curiae. (For convenience we will refer to the State and the Attorney General collectively as the State.) We now reverse.


The requirement that law enforcement officers knock and announce their presence before entering a dwelling predates our federal and State Constitutions. As a long-standing component of the common law, the "knock-and-announce" rule reflects "the ancient adage that a man's house is his castle." Miller v. United States, 357 U.S. 301, 307, 78 S. Ct. 1190, 1194, 2 L. Ed. 2d 1332, 1337 (1958). The rule was pronounced about 400 years ago in Semayne's Case, 79 Eng. Rep. 194 (K.B. 1603), although some commentators trace its legal origin to an earlier period in the thirteenth century, around the time of the Magna Carta. Wilson v. Arkansas, 514 U.S. 927, 932 n.2, 115 S. Ct. 1914, 1917 n.2, 131 L. Ed. 2d 976, 981 n.2 (1995).

Against that common-law backdrop, the Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the papers and things to be seized.

The text of Article I, paragraph 7 of the New Jersey Constitution is nearly identical to the Fourth Amendment. Within the framework of that amendment, the United States Supreme Court has determined "that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announce[] their presence and authority prior to entering." Wilson, supra, 514 U.S. at 931, 115 S. Ct. at 1916, 131 L. Ed. 2d at 980. Although the Court has noted that not every entry must be preceded by an announcement, it has held squarely that the method of an officer's ...

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