On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 02-12-0206.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 2, 2005
Before Judges Fall, Payne and C.S. Fisher.
Defendant appeals the denial of his motion to suppress evidence gathered by police during a purported consent search of his home -- a search preceded by a warrantless thermal scan of that home and a warrantless search of a power company's records of the use of electricity there. Because the trial judge mistakenly failed to recognize the illegality of the prior searches or weigh their impact on the later search of the same premises, and because the trial judge erroneously excluded polygraph evidence regarding the truthfulness of defendant's claim that he did not consent to the later search, we reverse.
Defendant was charged with first-degree maintaining or operating a controlled dangerous substance (CDS) production facility (marijuana in an amount greater than ten plants), in violation of N.J.S.A. 2C:35-4; first-degree possession with intent to distribute CDS (marijuana in an amount greater than fifty plants), in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(a); fourth-degree possession of CDS (marijuana in an amount greater than fifty grams), in violation of N.J.S.A. 2C:35-10(a)(3); and third-degree possession of CDS (methamphetamine), in violation of N.J.S.A. 2C:35-10(a)(1).
After the trial judge denied his motion to suppress, defendant entered a plea of guilty to first-degree maintaining or operating a CDS production facility. The trial judge imposed a sentence of ten years' imprisonment, one-third of which defendant must serve before becoming eligible for parole. Monetary assessments were also imposed. Pursuant to the plea agreement, the other counts of the indictment were dismissed.
Defendant filed this appeal,*fn1 raising the following arguments:
DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE POLICE ENTRY INTO DEFENDANT'S HOME AND THE SEARCH OF HIS HOME VIOLATED THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
A. The Warrantless Thermal-Imaging Scan Of Defendant's Home Constituted An Unreasonable Search.
B. The Warrantless Seizure Of Defendant's Electric Bills Was Illegal.
C. Defendant's Consent to Search His Home Was Not Voluntarily And Knowingly Made.
In a supplemental brief, filed with our permission, defendant also raised the following argument:
THE LOWER COURT ERRED BY EXCLUDING POLYGRAPH EVIDENCE THAT DEFENDANT DID NOT PROVIDE CONSENT FOR THE DETECTIVES TO SEARCH HIS RESIDENCE; THEREFORE, THE DENIAL OF HIS MOTION TO SUPPRESS THE EVIDENCE MUST BE REVERSED.
We agree that the warrantless thermal-imaging scan of defendant's Williamstown home and the warrantless seizure of utility records regarding the amount of electricity consumed in defendant's home were illegal. As a result, we reverse the judgment of conviction, vacate the denial of the motion to suppress, and remand for consideration, after a hearing, of whether defendant consented to the search of his home and, if so, whether the consent search was so impacted by the prior unlawful police conduct as to require the exclusion of the evidence then seized. We also conclude that the trial judge erred by failing to allow testimony about a polygraph test administered to defendant. And we lastly direct that a different judge be assigned to conduct all future proceedings in the trial court.
Defendant moved for the suppression of evidence obtained from his home on July 27, 2000. The State asserted that defendant consented to the search.
The record created at the suppression hearing revealed that, in January 2000, Detective William Peacock, lead investigator for the New Jersey State Police's Marijuana Eradication Unit, obtained information by way of subpoena that defendant had received four packages of indeterminate size and content from a nearby business that sells plant growth equipment. Why a subpoena was sought to obtain these records was not revealed at the suppression hearing.
Defendant's mere receipt of this equipment -- the precise nature of which has not been revealed -- led Detective Peacock to somehow suspect that defendant might be growing marijuana in his home. As a result, Detective Peacock obtained a subpoena to compel a power company to turn over records concerning defendant's residential use of electricity. The record, however, does not disclose what this information revealed. Instead, during the suppression hearing, the assistant prosecutor posed only the following questions to Detective Peacock regarding this information:
Q: Did your suspicions stem from anything else aside from the packages [of plant growth equipment] being delivered to [defendant's home]?
A: After the packages were delivered we subpoenaed the electrical usage of his residence and two comparable houses.
Q: And what was the purpose of that generally?
A: Generally to see how much electricity he was using compared to those other residences.
Q: And why did you do that and what would it tell you?
A: It would tell us if the equipment that was delivered to that residence was being used because the electrical consumption would go up.
A: Because the specialized grow[th] equipment uses a lot of electricity.
The assistant prosecutor never asked Detective Peacock what his comparison revealed.
On cross-examination, defense counsel sought to explore the content of these electrical records as well as the manner in which they were obtained. He was permitted only a few questions before the trial judge ruled that this information had no bearing on whether defendant voluntarily consented to a search of his home. Other than his earlier examination that confirmed Detective Peacock had obtained the electrical usage records without a search warrant, the following constitutes the entirety of defense counsel's cross-examination in this area, as well as the judge's rulings that precluded further inquiry:
Q: And you said that you compared his electrical records to other houses nearby?
Q: How many residents were in these other houses?
Q: Did you talk to the other occupants of the other houses?
Q: So when you compared [defendant's] electrical records to these other houses, you didn't know how many occupants or whether there were even any occupants there; is that correct?
A: These two other houses were occupied, I just don't know by how many people.
Q: Or how often they stayed there?
A: Nor did I know about . . . how many people resided [in defendant's home] either.
Q: That's correct. But with respect to the other houses you didn't know how many people were there -
THE COURT: Can we get back to the issue of consent.
[DEFENSE COUNSEL]: Okay. Well, the State brought this up. Apparently on direct -
[DEFENSE COUNSEL]: -- they brought out this issue of comparing these electrical records.
THE COURT: I don't know what that has to do with consent either.
[DEFENSE COUNSEL]: I quite frankly I think it goes to the totality of the circumstances and I'm glad they brought it up.
[THE PROSECUTOR]: Your Honor.
THE COURT: Well, if you want to use that at trial, that's okay but let's get onto the issue of consent.
Defense counsel, in compliance with the trial judge's directive, asked no further questions regarding the electrical usage records.
As a result, the record reflects that when deciding to seek defendant's consent to a search of his home, Detective Peacock knew only that defendant obtained equipment, only identified as plant growth equipment, in January 2000; that no unusual amount of heat emanated from defendant's home when a warrantless thermal scan was conducted in May 2000*fn2 ; and that subpoenaed utility records indicated that defendant's home used electricity to some unknown extent at some unknown time. Detective Peacock conceded that this information would not support the issuance of a search warrant for defendant's home, but he felt it appropriate to speak to defendant. Consequently, Detective Peacock determined to engage defendant in a "knock and talk."
On July 27, 2000, Detective Peacock approached defendant's residence, in the early morning,*fn3 with four other law enforcement agents, all in plain clothes and all armed. They entered the curtilage of defendant's home, without consent. In fact, two officers passed through a gate that had been closed to approach the back door, while the other three officers approached the front door, as Detective Peacock described:
Q: . . . [I]t's a small house; is that correct?
Q: So when you went up to this small house, three officers went to the front and two officers went to this rear door, is ...