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State v. Taveres

December 08, 2003

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARIA TAVARES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-01-0080.

Before Judges Stern, Payne and Landau.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 12, 2003

Tried to a jury, following the denial of her motion to suppress, defendant was convicted of conspiracy and possession of cocaine, and sentenced to a term of three years probation on the merged conviction for possession (count two). On this appeal, defendant argues that"the State failed to demonstrate sufficient justification for issuance of a no-knock search warrant, necessitating suppression of the evidence and a remand to vacate the judgment of conviction." She also contends that the admission of expert testimony, including an improper hypothetical question, also warrants reversal of the conviction.

The warrant, issued by a municipal court judge, provided two"no-knock" provisions:

4. You are hereby authorized to enter the premises described below [] with, [X] without, first knocking and identifying the officers as police officers and the purpose for being at the premises, if applicable. 5. You are further authorized to execute this warrant between the hours of 24 Hours and no knock within the ten (10) days from the issuance hereof, and thereafter to forthwith make prompt return to me with a written inventory of the property seized hereunder.

These provisions were premised on the following paragraphs of a police detective's affidavit:

I also request to execute this search warrant without first knocking and announcing myself as a police officer. I have found that a controlled dangerous substance can and will be destroyed upon warning.

I also request that the search warrant be issued to cover a twenty-four hour period, due to the fact that drug activity takes place all hours of the day and night. [Therefore,] the element of surprise is vital in the execution of this search warrant.

The warrant was clearly defective because of the inadequate affidavit. As the Supreme Court recently held:

First, to justify a no-knock warrant provision, a police officer must have a reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence. Second, the police officer must articulate the reasons for that suspicion and may base those reasons on the totality of the circumstances with which he or she is faced. Third, although the officer's assessment of the circumstances may be based on his or her experience and knowledge, the officer must articulate a minimal level of objective justification to support the no-knock entry, meaning it may not be based on a mere hunch.

[State v. Johnson, 168 N.J. 608, 619 (2001).]

See also State v. Jones, 358 N.J. Super. 420 (App. Div.), certif. granted, ...


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