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State v. Rodriguez

March 28, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HIRAM RODRIGUEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-01-0085.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted February 25, 2008

Before Judges Stern, C.S. Fisher and C.L. Miniman.

In this appeal, we consider whether the police breached the "knock and announce" rule in executing a search warrant. We conclude that the police complied with the "reasonable wait time" standard set forth in United States v. Banks, 540 U.S. 31, 41, 124 S.Ct. 521, 528, 157 L.Ed. 2d 343, 355 (2003), when they waited fifteen to twenty seconds after announcing their presence before entering the premises. As a result, we need not resolve the State's argument that Hudson v. Michigan, 547 U.S. 586, __, 126 S.Ct. 2159, 2163, 165 L.Ed. 2d 56, 63 (2006), which holds that the Fourth Amendment does not authorize application of the exclusionary rule for a knock and announce violation, should be followed in determining the appropriate remedy for a knock and announce violation of our state constitution.

I.

Defendant was charged with a number of drug offenses and eventually pled guilty to third-degree possession of controlled dangerous substances (CDS) with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7, for which he was sentenced to a three-year prison term.

Before he pled guilty, defendant unsuccessfully moved for the suppression of evidence. Following the entry of judgment, defendant appealed and presented these arguments for our consideration:

I. THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THERE WAS NO CREDIBLE EVIDENCE THAT THE POLICE HAD COMPLIED WITH THE KNOCK AND ANNOUNCE REQUIREMENT OF THE SEARCH WARRANT.

II. THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE POLICE DID NOT WAIT A REASONABLE AMOUNT OF TIME BEFORE THEY ENTERED DEFENDANT'S RESIDENCE. (Not Raised Below).

We reject these arguments and affirm.

II.

At the suppression hearing, Officer Lawrence Smith of the Elizabeth Police Department testified that he and other officers executed a search warrant at 8:18 a.m. on August 4, 2004, for CDS and other related materials, and for a person ...


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