On certification to the Superior Court, Appellate Division, whose opinion is reported at 358 N.J. Super. 420 (2003).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
[NOTE: This is a companion case to State v. Sanchez, also filed today.]
ZAZZALI, J., writing for a unanimous Court.
This appeal presents two questions for consideration. The first is whether the controlled purchases of cocaine from persons with prior drug-related arrests and convictions establish probable cause for the issuance of a search warrant when the confidential informant who supplied the initial tip is of unknown reliability. The second is whether a suspect's seven-year-old arrest for assault against a police officer and a weapons-related crime justifies a "no-knock" entry.
During the week of June 18, 2001, the Cape May County Prosecutor's Office received information from a confidential informant of unknown reliability that Darryl Jones (brother of defendant, Arthur Jones), Kenneth Powell, and Stephanie Williams were distributing cocaine from a single-family residence in Wildwood. In addition, the informant advised police that those three individuals were selling cocaine at the Sportsmen's Tavern in Wildwood.
The informant cooperated with police and performed three separate controlled purchases at the Wildwood residence between June 18 and 22, 2001. A criminal background check on Kenneth Powell revealed that he had been arrested for possession and distribution of cocaine in 1992, convicted of distribution in 1992, arrested for possession of marijuana in 1997, and arrested in 1997 and convicted in 1998 for distribution of cocaine. Darryl Jones had been arrested for assault on a police officer and unlawful possession of a weapon in 1994; arrested for distribution of CDS in 1995, and arrested for distribution of CDS on school property in 1998.
Agent Darrell Shelton applied for a search warrant from a judge of the Wildwood Municipal Court on June 22, 2001. To establish probable cause, he set forth the information provided by the informant, the facts and circumstances of the three controlled buys, and described the arrest records of Darryl Jones and Powell. The application sought permission to search the residence and any person reasonably believed to have a connection to illegal contraband during the execution of the warrant. In addition, Shelton sought authority to execute the warrant without knocking and announcing the police presence. He made the request for the no-knock provision based on the destructibility of evidence and officer safety, calling particular attention to Darryl Jones's prior arrests. The municipal court granted the application and authorized a no-knock entry.
Prior to the police executing the warrant on June 23, 2001, they had the informant perform a confidence buy to confirm the continued presence of drugs at the location. After the informant returned with suspected cocaine, police executed the no-knock warrant. They found Arthur Jones in the residence, seated in front of a table. A bag of cocaine and drug paraphernalia were found on the table. During a search of his person, police found two of the twenty-dollar bills used in prior controlled purchases and two bags of cocaine.
The grand jury issued a nine-count indictment against Arthur Jones, charging him with numerous drugrelated offenses, including third-degree possession of cocaine. Defense counsel moved to suppress the seized evidence as products of an illegal search warrant. The trial court denied the motion, holding that the three controlled purchases established probable cause to issue the search warrant. The trial court also concluded that a prior charge of assault on a police officer by a suspect named in the warrant application formed a sufficient basis for a no-knock entry.
Arthur Jones pled guilty to third-degree possession of cocaine and was sentenced to a four-year term of incarceration. He appealed the ruling on his motion to suppress. In a published opinion, the Appellate Division disagreed with the trial court, holding the search warrant unlawful because of the absence of probable cause and because there were insufficient facts set forth in the affidavit to support the "no-knock" entry provision. State v. Jones, 358 N.J. Super. 420 (2003). With respect to the search warrant in general, the panel noted that a controlled buy does not conclusively establish probable cause. The appellate court also noted that police failed to confirm that the named suspects lived in or were otherwise connected to the residence; and that the warrant application gave no indication that police made any effort to confirm that the substance purchased by the informant was actually cocaine. The Appellate Division also held the warrant invalid because the "stale prior arrest" of a named suspect did not justify a no-knock warrant.
The Supreme Court granted the State's petition for certification.
HELD The police officer's affidavit established probable cause to support the issuance of the search warrant; and the warrant's no-knock provision was authorized by the prior arrest of a suspect for assault on a police officer and unlawful possession of a weapon.
1. A search executed pursuant to a warrant is presumed valid, and a defendant challenging its validity has the burden to prove that there was no probable cause. Information related by an informant may constitute a basis for probable cause, provided the informant is trustworthy. An informant's reliability can be established if the informant proved reliable in previous investigations. Where police have no prior experience with an informant, independent corroboration is necessary to ratify an informant's veracity and validate the truthfulness of the tip. Relevant corroborating factors may include controlled drug purchases performed on the basis of the tip, as well as a suspect's criminal history. In the present case, police engaged in three controlled purchases from the single-family dwelling. The two suspects identified by the informant had a history that included several drug-related offenses. These corroborating factors demonstrated probable cause. The Appellate Division determined that the failure of police to include any test results of the suspected drugs undermined the normal persuasiveness of the controlled buys. Although test results of the drugs would have presented additional information for the municipal court judge to consider, their absence does not undermine the probable-cause determination that was made on the facts presented. (pp. 9-22)
2. To justify a no-knock entry on the grounds of officer safety, the officer must have a reasonable, particularized suspicion of a heightened risk of danger to the officers. A suspect's criminal history may be used as part of the totality of the circumstances analysis to justify a no-knock entry. Past evidence of violent criminal behavior, particularly behavior directed towards law enforcement officers, is plainly probative of the heightened risk posed to officer safety. The Appellate Division found it significant that notwithstanding the arrest cited in the affidavit, Darryl Jones was never convicted of the assault charge, but pled to fourth-degree unlawful possession of a weapon. The fact that an offender eventually pled to a lesser-included offense does not undermine the probative value to officer safety suggested by the original charges against a suspect. The criminal histories provided by the police here were sufficient to establish a reasonable suspicion of a danger to officer safety. For future guidance, the Court observes that the relevant arrest records disclosed in supporting affidavits generally should include the disposition of those arrests. Defendant suggests that the arrest was too remote in time to be relevant. Although the arrest was seven years old at the time of the search, the Court believes it was of sufficient probative value to be considered by the municipal court. Finally, there is additional evidence in the affidavit to demonstrate that a no-knock entry was appropriate in this case. The unfortunate connection between drugs and weapons is a factor that could also be considered when a defendant has a criminal history suggesting violence towards the police. (pp. 22-40)
3. In light of its disposition of the warrant issue, the Appellate Division did not address Arthur Jones's sentencing claim. The Court therefore remands the matter to the Appellate Division for consideration of the sentencing issue. (pp. 40-41)
Judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ALBIN and WALLACE join in JUSTICE ZAZZALI's opinion.
The opinion of the court was delivered by: Justice Zazzali
This appeal presents two questions for our consideration. The first is whether three controlled purchases of suspected cocaine at a single-family dwelling from persons with prior drug-related arrests and convictions establish probable cause sufficient for the issuance of a search warrant when the confidential informant who supplied the initial tip is of unknown reliability. The second is whether a suspect's seven year-old arrest for assault against a police officer and a weapons-related crime justifies a "no-knock" entry in the totality of the circumstances. The Appellate Division held that the State did not demonstrate probable cause for the search warrant and that the facts did not support a departure from the knock-and-announce requirement.
We conclude that the totality of the circumstances did establish probable cause for the issuance of the search warrant. We also hold that, because the police had a reasonable, particularized suspicion that knocking and announcing their presence in the circumstances presented would threaten their safety, the issuance of a no-knock warrant was proper. We therefore reverse.
During the week beginning June 18, 2001, the Cape May County Prosecutor's Office Narcotics Task Force (Narcotics Task Force) received information from a confidential informant of "unknown reliability" that Darryl Jones (brother of defendant), Kenneth Powell, and Stephanie Williams were distributing cocaine from a single-family residence in Wildwood. In addition, the informant advised the police that those three individuals were selling cocaine at the Sportsmen's Tavern in Wildwood.
The informant cooperated with the police and performed three separate controlled purchases at the Wildwood residence between June 18 and June 22, 2001. Each controlled buy followed the same procedure: the officers searched the informant to ensure that he*fn1 carried no money or contraband on his person; they provided the informant with money bearing pre-recorded serial numbers to purchase a specified amount of cocaine; the informant then proceeded to the Wildwood residence, stepping inside for "a short period"; after emerging from the home, the informant returned to the prearranged location and turned over the suspected cocaine to the police; and, before departing, the officers searched the informant again to ensure he did not have any contraband or money on his person. During each of the controlled purchases, the police maintained surveillance of the informant throughout the process.
On the occasion of the first and second controlled purchases, the informant bought suspected rock cocaine from Darryl Jones. The first buy occurred in the presence of Stephanie Williams. On the third occasion, the informant purchased suspected rock cocaine from Kenneth Powell. Although there is some indication in the record that suspected drugs purchased during controlled buys typically are field-tested and sent for lab analysis to confirm their composition, the affidavit submitted by the police in support of their request for a search warrant did not disclose whether any testing was performed on the suspected narcotics in this case.
Before seeking a search warrant, Narcotics Task Force members performed criminal background checks on Kenneth Powell and Darryl Jones. According to Agent Darrell Shelton's affidavit offered in support of the search warrant application, the officers learned from the suspects' criminal history records that Powell had been arrested for possession and distribution of cocaine in 1992, convicted of distribution of cocaine in 1992, arrested for possession of marijuana in 1997, and arrested in 1997 and convicted in 1998 for distribution of cocaine. Darryl Jones, described as a 5'10" tall male weighing 170 pounds, had been arrested for criminal trespass, disorderly conduct, and harassment in 1994; arrested for assault on a police officer, criminal mischief, unlawful possession of a weapon, and aggravated assault with a weapon in 1994; arrested for distribution of a controlled dangerous substance (CDS) in 1995; and arrested for possession of a CDS, distribution of a CDS, and distribution of a CDS on school property in 1998. The Cape May City Police Department (CMPD) and the Narcotics Task Force were responsible for all of the reported arrests of Darryl Jones. We take judicial notice that the City of Cape May is located less than ten miles from Wildwood, where all of the events in this case occurred.
Agent Shelton applied for a search warrant before a judge of the Wildwood Municipal Court on June 22, 2001. To establish probable cause for the search, he set forth the information provided by the informant, detailed the facts and circumstances of the three controlled buys, and described the arrest records of Darryl Jones and Powell. Based on those facts, and on his knowledge, training, and experience as detailed in the warrant, Shelton asserted that there was probable cause to believe various provisions of the Comprehensive Drug Reform Act of 1986 (Drug Reform Act), N.J.S.A. 2C:35-1 to 36A-1, were being violated at the Wildwood residence. Accordingly, his application sought permission to search the residence, to search the persons of Darryl Jones, Kenneth Powell, and Stephanie Williams, and to search "[a]ny person reasonably believed or identified to have [a] connection to illegal property or contraband during the execution of the search warrant."
In addition to requesting the search warrant, Shelton sought authority to execute the warrant without knocking and announcing the police presence. Shelton made his request for the no-knock provision based on the destructibility of evidence and officer safety, calling particular attention to Darryl Jones's prior arrests. He stated:
This request is made for the following reason(s): The easy disposal of the evidence and the physical protection of the police officers when making entry on a search warrant in drug related cases as specifically documented below. Additionally, the information set forth... above which reflects a November 6, 1994 arrest of Darryl Jones by CMPD for aggravated assault on a police officer and unlawful possession of a weapon. [(Emphasis added.)]
The municipal court granted Shelton's application and authorized a no-knock entry.
Although the exact time is not clear from the record, it appears that "right before" the police executed the warrant on June 23, 2001, they had the informant perform a "confidence buy," following the same procedures of the three prior controlled purchases. Generally, police conduct a confidence buy to confirm the continued presence of drugs at the location about to be searched. After the informant returned with suspected cocaine, the police executed the no-knock warrant. They found defendant in the residence, seated in front of a table. A bag of cocaine and drug paraphernalia were on the ...