On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-12-4578.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2008
Before Judges Coburn, Fuentes and Chambers.
A jury convicted defendant James Robinson of one count of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), two counts of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3), and second-degree possession of cocaine with intent to distribute within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1. The court sentenced defendant to an extended term of fifteen years imprisonment with five years of parole ineligibility, concurrent to an extended term of seven years imprisonment, three years to be served without parole.
Defendant appeals, and we reverse because the police tactics in executing the knock-and-announce search warrant violated defendant's rights under Article I, paragraph 7 of the Constitution of the State of New Jersey.
In executing a knock-and-announce warrant, the police must give the occupants of the dwelling a reasonable opportunity to respond before resorting to the use of force to gain entry to the residence. Under the circumstances presented, the police by breaking down the entrance door of the dwelling, twenty to thirty seconds after announcing their presence converted the knock-and-announce warrant into a de facto no-knock warrant. This constituted a violation of a material condition imposed by the court, rendering the search unreasonable and unconstitutional. Furthermore, the use of a so-called flash bang explosive device by the police here was factually unwarranted, and rendered a nullity the warrant's knock-and- announce condition imposed by the court. Under these circumstances, the trial court erred in denying defendant's motion to suppress the evidence gathered by the police while executing the warrant.
The State's case against defendant began as part of an investigation into illicit drug sales in Camden County. The Camden County Prosecutor's Office (CCPO) initially targeted defendant James Robinson, and a woman identified as Diane Winter. Specifically, the CCPO received intelligence, gathered by confidential informants, that illicit narcotics were being sold from a private residence located in the Borough of Pine Hill. CCPO Investigator Robert Ferris was assigned to work as an undercover officer with the High Intensity Drug Trafficking Area unit.
On December 10, 2003, Borough of Pine Hill Detective Jack Welker showed Ferris a photograph of both Diane Winter and James Robinson and gave him sixty dollars to purchase "any CDS." In response, Ferris went to a residence located at 12 Wilson Road in Pine Hill. The residence is located 150 feet from a public park named the Mayor Steven Wills Playground. Ferris arrived at the residence at about 8:05 p.m. Once inside, he met with Winter and asked her to sell him three bags of crack cocaine; Winter responded by placing a telephone call to an individual subsequently identified as "Manny." At approximately 9:00 p.m. the person identified as "Manny" arrived at the house. Ferris immediately recognized the man calling himself "Manny" as defendant James Robinson.
When defendant asked Ferris what he needed, Ferris replied "three," referring to bags of cocaine. Defendant then produced three bags from his inner coat pocket and handed them to Ferris, who gave him thirty dollars in exchange. Ferris then left the residence, and linked up with his backup unit at a predetermined location. Once there, Ferris dated and initialed the three bags, and turned them over to Welker. He also viewed defendant's photograph again to confirm that the individual who had just sold him three bags of cocaine was defendant. Ferris then signed the photo, and printed his name and badge number on it. The contents of the three bags tested positive for cocaine. At trial, Ferris identified both the photograph and the three bags of cocaine, based on these identifying markings.
Welker and Ferris submitted a joint affidavit in support of an application for a warrant to search defendant's apartment.
The affidavit referred to two confidential informants identified as PH-24 and PH-25, who had gathered information on defendant's drug activities. Specifically, PH-24 accompanied Ferris when he made his controlled purchase of cocaine from defendant on December 10, 2003, at 12 Wilson Road. PH-25 met with the investigators on January 5, 2004 to arrange a second controlled buy from defendant at defendant's apartment located in the Village Green Apartments, Borough of Hi-Nella. PH-25 carried out the second illicit transaction under a police-controlled process. He was searched to insure that he was not concealing contraband, and was then provided with the currency to buy the drugs. Although the two illicit sales occurred in different locations, the description given by PH-25 of how the actual transaction was consummated was factually similar to the account given by Ferris of the first controlled buy.
The search warrant issued by the court specifically required the police to first knock on the door of defendant's residence, identify themselves as police officers, and announce their intended purpose to search the apartment. The joint affidavit submitted by the police in support of the issuance of the search warrant did not mention or even allude to defendant's propensity for violence, or of the violent tendencies of other likely occupants of the residence. The affidavit is equally devoid of any information referring to the possible presence of weapons in the residence. In short, the affidavit did not alert the judicial officer reviewing the application that the police had reason to believe that the execution of the warrant could expose the officers involved to an exceptionally dangerous situation.
At approximately 6:30 a.m., on January 16, 2004, the police executed the search warrant. Detective Sergeant Leonard Check, of the Berlin Township Police Department, described what transpired at the evidentiary hearing conducted by the trial court to consider defendant's motion to suppress.
Q: Okay. And Zone 4 tactical team, what was the team's role in executing this particular search warrant?
A: What our tactical team does is, we get called out to execute any type of high-risk warrant where they think there might be, you know, a propensity for violence or something like that. They call the tactical team out for that.
So our role is to go into a location, secure everyone in the location, make the scene safe, and then turn the location over to investigators.
Q: And how many officers were part of this particular tactical team?
Q: Was there a team briefing before the warrant was executed?
A: Yes. The briefing took place at Pine Hill Police Department.
Q: And what was the purpose of the briefing?
A: The briefing was to give the information of the exact location to team members, information of possible occupants in the dwelling. The team leader at that time puts the team members in specific locations and gives those guys specific duties for that, you know, specific entry.
Q: Okay. And what was your duty for this particular entry?
A: My duty was to make a knock and announce at the residence because it was a knock and announce warrant.
Q: Okay. And when you arrived on the scene and before this warrant was executed, did you in fact knock and announce your presence?
Q: Okay. And when you knocked, you knocked on F-3, Village Green Apartments?
A: As soon as we made entry, there was an entry door, made entry through the main entry door and then the apartment door was to the left. I knocked and announced on the apartment door prior to entry.
Q: Okay. And when you knocked and announced your presence, what exactly did you say?
A: Police department; search warrant.
Q: Did anybody answer the door at that point?
Q: Okay. And what did you do after no one answered the door?
A: We waited approximately 20, 30 seconds. The door was forcibly breached, and then we deployed a percussion grenade inside the door.
A: We deployed a distraction device inside ...