On certification to the Superior Court, Appellate Division, whose opinion is reported at 377 N.J. Super. 515 (2005).
(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).
After a search of his home resulted in the seizure of marijuana and growing equipment, defendant Keith R. Domicz was indicted on charges of operating a controlled dangerous substance (CDS) production facility, possession with intent to distribute a CDS (marijuana), and possession of CDS (marijuana and methamphetamine).
Six months before defendant's home was searched, Detective William Peacock of the New Jersey State Police Marijuana Eradication Unit learned that defendant had received specialized horticultural equipment commonly used to grow marijuana. Pursuant to a grand jury subpoena, the police obtained electrical use records of defendant's residence. Those records did not provide any useful investigative information. Two months later, without a warrant, Detective Peacock conducted a thermal scan of defendant's home to determine whether there was an unusual amount of heat, which might indicate the use of specialized marijuana growth equipment. The thermal scan also did not provide any leads.
At the suppression hearing, the State and defendant presented conflicting accounts of what occurred on the day of the search. According to the State, five detectives dressed in plain clothes went to defendant's home. Three detectives went to the front door. Along with another officer, Detective Peacock went to the back door, which he believed was used as an entrance because of the location of the cars in the driveway. When defendant answered the front door, those two detectives joined the others at the front of the house. One detective identified himself and told defendant, "We need to speak to you." Defendant replied, "Come on in, get out of the rain." When they entered, Detective Peacock noticed a strong odor of raw marijuana. He introduced himself as a member of the State Police Marijuana Eradication Unit and said, "We're here to request permission to search your residence." He presented a consent-to-search form, which he read and explained to defendant. At one point, defendant put his head down and said, "I have 40 plants in the basement." Detective Peacock responded, "We'll get to that in a minute," and finished reading the consent form, while defendant listened and looked at the form. Detective Peacock advised defendant that the right to refuse to give consent to the search. The other officers did not surround or intimidate defendant. Defendant authorized the search by signing the form under a statement that read: "I have knowingly and voluntarily given my consent" and "fully understand that I have the right to refuse giving my consent to search." The detectives then searched the house and found nearly 100 plants in the basement and growing next to the garage, an apparatus for cultivating marijuana plants, bags of processed marijuana, a digital scale, and a bag of methamphetamine.
Defendant's version of the events was very different. He testified that three detectives came to his front door, where the "head guy" showed a badge and said he had a search warrant. Without permission, they came into the house and let the two other officers in the back door. Defendant was handcuffed, told to sit on a couch, and read his rights. An hour later, the detectives gave defendant a form to sign, but they did not read it or explain it to him.
At the hearing, the trial court did not allow testimony from a polygraph examiner who would have testified for the defense about the results of a polygraph examination taken by defendant. The trial court denied defendant's motion to suppress the evidence seized from his home. The court accepted Detective Peacock's testimony and rejected defendant's testimony as unbelievable, and determined that the State had proven by clear and convincing evidence that defendant knowingly and voluntarily consented to the search. Defendant pled guilty to operating a CDS production facility. He was sentenced to 10 years in prison with a 40-month period of parole ineligibility. The remaining charges were dropped.
The Appellate Division, in an opinion published at 377 N.J. Super. 515 (2005), reversed the suppression order, vacated defendant's conviction, and remanded for a new suppression hearing. The panel found that the warrantless thermal scan of defendant's home and warrantless seizure of his utility records were unconstitutional, may have "tainted" defendant's consent, and could cast doubt upon the credibility of Detective's Peacock's version of events. Although not previously raised by defendant, the panel also held that police officers must have a reasonable and articulable suspicion that criminal activity is occurring inside a residence before requesting consent to search the home. Finally, the panel would have allowed testimony about the polygraph test.
The Supreme Court granted certification.
The opinion of the court was delivered by: Justice Albin
This case involves defendant Keith R. Domicz's challenge to the constitutionality of a police search of his home that resulted in the seizure of nearly one hundred marijuana plants and assorted growing equipment. After a testimonial hearing, the trial court denied defendant's motion to suppress the evidence seized from his home, determining that defendant knowingly and voluntarily consented to the search. In overturning that ruling and ordering a new suppression hearing, the Appellate Division reached a number of novel legal conclusions that are not supported by our established constitutional jurisprudence and case law. Therefore, we now reverse.
A state grand jury returned an indictment charging defendant with first-degree maintaining or operating a controlled dangerous substance (CDS) production facility, in violation of N.J.S.A. 2C:35-4; first-degree possession with intent to distribute a CDS (marijuana), 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 a CDS (marijuana), in violation of N.J.S.A. 2C:35-10(a)(3); and third-degree possession of a CDS (methamphetamine), in violation of N.J.S.A. 2C:35-10(a)(1).
At a suppression hearing, the State and defendant presented conflicting accounts of what occurred at defendant's home on July 27, 2000.*fn1 Detective William Peacock of the New Jersey State Police Marijuana Eradication Unit testified that defendant first attracted his attention six months earlier when he learned that defendant had received at his home in the Williamstown section of Monroe Township, Gloucester County, four packages of specialized horticultural equipment "commonly used to grow marijuana." That the equipment also had legitimate uses did not dampen the detective's interest. As part of the detective's investigation, a grand jury subpoena*fn2 was issued for the electrical use records of defendant's residence and two "comparable houses." With those records, the State Police supposedly could compare defendant's electrical usage in his home with similarly situated consumers. Those records, it appears, did not provide any useful information linking defendant's electricity consumption with the suspected harvesting of marijuana in his home.
About two months before the search, Detective Peacock conducted a thermal scan of defendant's home to determine whether an abnormal amount of heat was emanating from it.*fn3
Detective Peacock did not seek authorization for the thermal scan by means of a search warrant because he did not think that a warrant was necessary.*fn4 The thermal scan, as well as Detective Peacock's frequent drives by defendant's home on his commute to work, did not provide any investigative leads.
On the rainy morning of July 27, 2000, accompanied by two State Police detectives, a Monroe Township Police detective, and a Gloucester County Prosecutor's Office detective, Detective Peacock went to defendant's home for a "knock and talk." The goal was to speak with defendant and, if possible, gain his consent to search his home. Detective Peacock admitted that he did not have probable cause to secure a search warrant.
The officers were all dressed in plain clothes. Three proceeded to defendant's front door while Detective Peacock and State Police Detective Dennis Donovan approached the back door by passing through a gate that separated the driveway from the rear of the residence. Because of the location of cars in defendant's driveway, it appeared to Detective Peacock that the back door was used as an entrance to the home. Immediately after Detective Peacock knocked on the door, State Police Detective Sergeant Joe DiBiase advised him that defendant was at the front door. Detectives Peacock and Donovan then joined the other officers at the front of the house. In a calm and professional tone, with the other officers standing behind him, Detective Sergeant DiBiase identified himself to defendant and told him, "We need to speak to you." Defendant invited the officers inside, saying, "Come on in, get out of the rain."
As soon as Detective Peacock entered the house, he "detected a strong odor of raw marijuana." Detective Peacock introduced himself as a member of the State Police Marijuana Eradication Unit and said, "We're here to request permission to search your residence." They were standing in a small room, about eight or ten feet square, adjacent to the kitchen, where defendant's girlfriend was located. Detective Peacock then presented to defendant a consent-to-search form and began reading and explaining the form to him. At that point, defendant put his head down and said, "I have 40 plants in the basement." Detective Peacock responded, "We'll get to that in a minute," and continued reading the consent form in its entirety to defendant, who was listening attentively and looking at the form. Among other things, Detective Peacock advised defendant that he had the right to refuse to give consent to the search. At no point did the other detectives surround, hover over, or intimidate defendant. After the form was read to him, defendant authorized the search by signing the form beneath the following acknowledgement: "I have knowingly and voluntarily given my consent to the search . . . and fully understand that I have the right to refuse giving my consent to search."
The detectives then searched the house. At the foot of the basement stairs, they found thirty-nine marijuana plants stashed in garbage bags. In a makeshift plywood room in the basement, they found forty-four actively growing marijuana plants, as well as apparatus for cultivating marijuana plants. They also found nine clear plastic bags containing processed marijuana in the kitchen freezer; three bags of marijuana, a digital scale, and a bag of methamphetamine in the master bedroom; and a bag of marijuana in another bedroom. In addition, Detective Peacock and two of the officers observed in plain view another fourteen marijuana plants growing next to the garage.
Defendant offered a starkly different version of the events surrounding the search. Defendant testified that at around 7:00 or 8:00 a.m. on July 27, 2000, three detectives arrived at his front door. The "head guy" showed him a badge and stated that he had a search warrant, and then, without asking permission, the three detectives entered his house. The detectives then opened the back door, letting in two other officers. Defendant was handcuffed, told to sit on a couch where his girlfriend was also seated, and read his rights. Approximately one hour later, the detectives presented a document to defendant without reading or explaining it to him. Defendant signed the folded document as he was told to do. He denied that he ever read the document or was ever advised of his right to refuse to consent to the search. He also suggested that the detectives concealed the contents of the document by folding it in half before he signed it.
Retired State Police Lieutenant Vincent Bellaran testified for the defense. He stated that the detectives involved in the case did not use the most recently issued consent form, which apparently had been adapted to deal with motor vehicle stops. Last, the trial court did not allow defense witness Alan Hart, a polygraph examiner, to testify about the results of a polygraph examination taken by defendant.
In denying defendant's motion to suppress, the trial court determined that the State had carried its burden of proving by clear and convincing evidence that defendant voluntarily and knowingly consented to the search of his house and garage. The court made specific credibility findings, accepting Detective Peacock's testimony and rejecting defendant's testimony as unbelievable. The court did not credit defendant's argument that the detectives tricked and coerced him into signing the consent form or that they had folded it in half to conceal its true nature. The court accepted as truthful Detective Peacock's assertion that he smelled the odor of raw marijuana upon entering defendant's house. The court also weighed favorably Detective Peacock's candid admission that he did not have probable cause to conduct a search at the time he proceeded with the "knock and talk" with defendant. The court found Lieutenant Bellaran's testimony to have no value because the Lieutenant did not specify whether the consent "forms are different for motor vehicle searches as opposed to" other kinds of searches.
After entering into a plea agreement with the State, defendant pled guilty to operating a CDS production facility. On that charge, the court sentenced defendant to ten years imprisonment with a forty-month parole ineligibility period, imposed financial penalties, and suspended his driving privileges for twelve months. In accordance with the plea agreement, the remaining charges were dismissed.
Defendant appealed the denial of his suppression motion.
The Appellate Division reversed the trial court's suppression order and vacated his conviction based on its determination that the warrantless thermal scan of defendant's home violated the Fourth Amendment of the United States Constitution and the warrantless seizure of his utility records violated Article I, Paragraph 7 of the New Jersey Constitution. State v. Domicz, 377 N.J. Super. 515, 561 (App. Div. 2005). The appellate panel remanded for a new hearing before a different judge to consider "whether [defendant's consent] was tainted by the prior unlawful conduct" and to weigh the impact of that conduct "(1) on the credibility of the police version of the alleged consent search, (2) on the legitimacy of the manner in which the police sought consent, and (3) on whether police had a reasonable suspicion that would justify seeking defendant's consent to a search of his home." Id. at 548-59. The panel also concluded that the court "erred by failing to allow testimony about a polygraph test administered to defendant."
The warrantless thermal scan of defendant's home in this case occurred more than one year before the United States Supreme Court in Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 2046, 150 L.Ed. 2d 94, 106 (2001), ruled that the Fourth Amendment required law enforcement officers to secure a warrant to conduct such a "search." Domicz, supra, 377 N.J. Super. at 530-31. Before Kyllo, a majority of courts in the country did not consider a thermal scan a search triggering the protections of the Fourth Amendment. Id. at 532. Nonetheless, the panel held that Detective Peacock and his fellow officers should have anticipated that under Article I, Paragraph 7 of our State Constitution, the courts of this State would prohibit thermal scans of homes without a warrant. Id. at 532-34.
Similarly, the panel held that the officers should have anticipated that a warrantless seizure of utility records would also be declared an unreasonable seizure under Article I, Paragraph 7 by our state courts. Id. at 536-38. In this "matter of first impression" in New Jersey, the panel concluded "that there is a legitimate expectation of privacy in electrical usage records maintained by a power ...