On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 01-7- 1381-I.
Before Judges Stern, Eichen and Collester.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Vincenta Ventura was charged with possession of marijuana in a quantity of more than fifty grams, in violation of N.J.S.A. 2C:35-10a(3) (count one); one count of possession of marijuana with the intent to distribute, in a quantity of one ounce or more but less than five pounds, in violation of N.J.S.A. 2C:35-5a(1) and 2C:35-5b(11) (count two); one count of possession of marijuana, in a quantity of one ounce or more, with the intent to distribute within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-5a(1) and 2C:35-7 (count three); one count of possession of marijuana, in a quantity of less than one ounce, with the intent to distribute to an undercover police officer, in violation of N.J.S.A. 2C:35-5a(1) and 2C:35-5b(12) (count four); one count of distributing marijuana, in a quantity less than one ounce, to an undercover police officer, within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-5a(1) and 2C:35-7 (count five); and one count of soliciting a person seventeen years of age or younger, in violation of N.J.S.A. 2C:35-4, 2C:35-5a, and 2C:35-6 (count six).
The evidence underlying the charges was seized during the execution of a search warrant on March 7, 2001. Defendant filed a motion to suppress the evidence and the trial court granted the motion. We granted leave to appeal and affirm the order suppressing the evidence.
The issues presented are whether a no-knock search warrant was justified by the police affidavit presented to the issuing court, *fn1 and, if not, whether the circumstances preceding the entry into defendant's residence were sufficiently emergent to justify the no-knock entry of defendant's apartment under the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution.
Here, the motion judge essentially concluded that there was no particularized reasonable basis articulated in the affidavit to support the issuance of the warrant to justify authorizing a no-knock entry of defendant's apartment, and that no exigent circumstances existed immediately prior to the police entry of the apartment to justify dispensing with the knock and announce rule. Accordingly, the judge suppressed the evidence.
These are the pertinent facts derived from the suppression hearing, the affidavit submitted in support of the warrant, and the warrant itself. On March 7, 2001, Detective Victor Martinez of the West New York Police Department submitted an affidavit to the court and obtained a search warrant for apartment 13 located on the first floor of a building at 453 62nd Street, West New York. The targeted location and occupant are described in paragraph 10 of the affidavit in support of the warrant which states:
Based on all the facts contained herein, the affiant has probable cause to believe and does believe that evidence pertaining to the distribution and possession of Marijuana can be found at 453-62nd St.[,] apt[.] 13[,] West New York[,] NJ 07093. Described as a gray brick multi-dwelling apartment building with the numbers 453 above exterior doors and a black fire escape on the 62nd St. side. On the person of one (Jane Doe) Hispanic female described as a 5'06" light skinned Hispanic in her early 30's with Brown hair below the shoulder length and weighing approx. 180 lbs.
The probable cause for the issuance of the warrant consisted of information obtained from a confidential informant who had proved reliable in the past, two controlled buys of marijuana from the premises to an undercover police officer, as well as "residential complaints from concerned citizens" concerning a "high volume of people entering and exiting [the apartment] at all hours throughout the night every night of [the] week." The concluding paragraph of the affidavit requested "that the affiant be permitted to execute th[e] search warrant during the day time or the night time without being required to knock and announce [his] authority and intention." In support of the no- knock provision, the affidavit provided:
Due to the very nature of drug trafficking, it has been the Affiant's experience that these illegal activities will take place at any hour of the day or night depending on the availability of the drugs and the needs of the purchaser. Therefore, the affiant must be guided accordingly and execute the search warrant when circumstances indicate that the objectives of the search warrant can be best achieved. Furthermore, based on the Affiant's experience in this field of this investigation, drug traffickers are very sensitive to the possibility of activities such as the execution of a search warrant by law enforcement authorities. Prearranged plans exist both for the destruction of the evidence and for the escape from the premises of the subjects prior to their apprehension and the seizure of contraband. Firearms are also commonly kept in such premises for protection from law enforcement and from competitors. Therefore, in order to gain entrance to the premises in a manner most conducive to the proper and thorough seizure of evidence and to minimize the danger to and enhance the safety of the executing officer, it will be necessary to execute this Search Warrant without knocking and announcing our authority and intention.
Based on the affidavit, the court issued the warrant on a finding of probable cause and also authorized the no-knock entry into the premises to be searched.
On March 7, 2001, prior to the execution of the warrant, the police "set up" surveillance at a location near the apartment which permitted them to observe activities both outside and inside the building, including defendant's apartment. Detective Sergio Herrera was "[the] cover officer for the entry team for the execution of the warrant." As "cover officer," Detective Herrera's duty was to observe activities ...