On certification to the Superior Court, Appellate Division, whose opinion is reported at 398 N.J. Super. 92 (2008).
(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.)
The issue in this appeal is whether the trial court properly issued a search warrant, conditioned on verification by the police of the particular apartment to be searched inside a two-unit apartment building.
The facts are derived from the affidavit submitted in support of the contested search warrant. In August and September 2004, an informant made controlled drug buys from Allen Daniels at several locations. On October 20, Detective Michael Novembre applied for search warrants for Daniels, his car, and those locations. In a subsequent controlled buy, Daniels drove the informant to new location, 105 Wayne Avenue in Trenton. Shortly after entering the building, Daniels returned with a person later identified as defendant, Quinn Marshall. The informant, who had remained in the car, did not know the apartment inside the building from which Daniels retrieved the drugs. He identified the other person as Daniels' cousin, known as King Zeke. Public utility records did not list Daniels on either of the two accounts at 105 Wayne Avenue. Neither the Division of Motor Vehicles nor the Sate Bureau of Identification was able to assist in identifying which unit Daniels had entered. On October 25, 2004, Novembre requested a warrant to search 105 Wayne Avenue. Because the specific unit that Daniels had entered was not known, Novembre requested that the warrant permit a search of the apartment to which Daniels had "possession, custody, control, or access." Novembre also requested conditional language stating that the warrant will be executed only if (1) Daniels is secured outside 105 Wayne Avenue and (2) a search of Daniels reveals an item identifying the specific apartment to which he has possession, custody, control, or access, or he divulges that information to the police. The trial court approved the warrant to search the premises and included the requested conditional language.
On October 29, the police executed the search warrants for the locations other than 105 Wayne Avenue. They found Daniels at one of the locations, placed him under arrest, and informed him of his Miranda rights. In response to questioning, Daniels replied that he did not stay at 105 Wayne Avenue. He stated that King Zeke stayed in the first floor apartment. When asked how many times he had been there, Daniels told them "you don't need to ask me that question. You know I been over there." Based on that information, the police executed the search warrant on the first floor at 105 Wayne Avenue, and found defendant there. The search revealed cocaine, marijuana, and several firearms.
Defendant was arrested and charged with various drug and weapons offenses. He moved to suppress the evidence seized during the search at 105 Wayne Avenue. Daniels testified that he did not know whether defendant was living at 105 Wayne Avenue, but he had been in both apartments. He said the police never asked him whether he had access to the second floor apartment. Defendant testified that Daniels was his cousin and that they had visited both apartments. The trial court denied the motion to suppress, finding that the conditions contained in the warrant were satisfied and that there was probable cause to issue the warrant for the apartment at 105 Wayne Avenue.
The Appellate Division reversed. State v. Marshall, 398 N.J. Super. 92 (App. Div. 2008). The court held that the warrant was invalid because the affidavit failed to sufficiently describe the premises to be searched and directed the police to ascertain the facts needed to accurately describe the place to be searched without further judicial oversight or review. The Court granted the State's petition for certification. 196 N.J. 461 (2008).
HELD: The search warrant was issued in violation of the constitutional requirement to describe the place to be searched with particularity. Because police were authorized to determine if the conditions in the warrant were satisfied, the role of the neutral, detached magistrate was delegated to the police. The failure to comply with the particularity requirement and the failure to have a neutral and detached magistrate determine whether the conditions in the warrant were satisfied are constitutional violations, not technical insufficiencies justifying overlooking the deficiencies in the warrant.
1. Under the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, a warrant should not issue unless there is probable cause to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place sought to be searched. There must be a fair probability that evidence of a crime will be found in a particular place. (pp. 7-8)
2. The probable cause determination must be made based on the information contained within the supporting affidavit, to assure that the judge can adequately perform the constitutional function of providing independent judicial review prior to executive intrusions on individual privacy. The particularity requirement mandates that the description is such that an officer can identify the place intended. It is widely recognized that when a multi-unit building is involved, the affidavit in support of the search warrant must exclude the units for which police do not have probable cause. Also, the warrant must be issued by a neutral and detached magistrate. (pp. 8-11)
3. The State's affidavit in support of the search warrant clearly indicated that the police did not know in which of the two apartments at 105 Wayne Avenue the asserted criminal activity took place. The warrant was issued in violation of the constitutional requirement that the warrant particularly describe the place to be searched. The probable cause determination could not be made within the four corners of the affidavit because the anticipated conditions were to be satisfied after the warrant was issued. Because police were authorized to determine if the conditions were satisfied, the role of the neutral and detached magistrate was delegated to the police. (pp. 11-12)
4. In support of its position that the warrant was valid, the State cites Maryland v. Garrison, 480 U.S. 79 (1987), State v. Wright, 61 N.J. 146 (1972), and State v. Ratushny, 82 N.J. Super. 499 (App. Div. 1964). In Garrison, the Supreme Court found no Fourth Amendment violation where a court authorized a warrant to search a third-floor apartment, and police discovered contraband before realizing there were two units on that floor and they were in the wrong unit. Garrison does not control this case; in any event, the Court rests its opinion on the New Jersey Constitution. (pp. 13-14)
5. In Wright, the warrant authorized a search of a top floor without specifying the apartment. The affidavit stated that the intended apartment was the one the suspect occupied. When they sought the warrant, police knew the apartment in which the suspect resided, and the suspect was found there when the warrant was executed. Here, unlike in Wright, when the warrant issued the police did not know in which apartment the alleged criminal activity took place, and Daniels, the focus of the investigation, did not reside at that address. The Court finds no justification for expanding Wright beyond the particular facts of that case, where police knew in which apartment the suspect resided but failed to designate it in the affidavit. (pp. 14-16)
6. In Ratushny, the Appellate Division suggested that when a the apartment number is not known and police justifiably fear alerting a suspect if they try to obtain a more specific description, the affidavit should include a phrase such as "the premises occupied by the defendant and over which he has possession and control." That dictum does not support the State's assertion that it was sufficient to refer only to the apartment to which Daniels had "possession, custody, control or access." The State failed to establish why a specific description could not have been obtained before seeking the warrant. There was no effort to determine King Zeke's legal name or the apartment he resided in at 105 Wayne Avenue. Again, a neutral and detached magistrate must determine probable cause that contraband will be found or an offense is being committed at a particular location. Because that did not occur here, the warrant was deficient. (pp. 16-18)
7. The failure to comply with the particularity requirement and the failure to have a neutral and detached magistrate determine whether the conditions in the warrant were satisfied are constitutional violations, not technical insufficiencies or irregularities justifying overlooking the deficiencies in the warrant. (pp. 18-20)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE RIVERA-SOTO, DISSENTING, expresses the view that when the actual apartment harboring illegal conduct cannot be ascertained without jeopardizing the investigation or its participants, the particularity requirement of the warrant clause is satisfied by a detailed description of the building modified by a phrase such as the premises occupied by the defendant and over which he has possession and control.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, and HOENS join in JUSTICE WALLACE's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.
The opinion of the court was delivered by: Justice Wallace, Jr.
This is a search and seizure case. The question is whether the trial court properly issued a search warrant, conditioned on verification by the police of the particular apartment to be searched inside a two-unit apartment building. The Appellate Division held that the warrant was invalid and suppressed the evidence because the trial court "directed the police to ascertain the facts needed to accurately describe the place to be searched without further judicial oversight or review." State v. Marshall, 398 N.J. Super. 92, 97 (App. Div. 2008). We agree and affirm.
The facts are largely undisputed and derived in part from the affidavit Detective Michael Novembre of the Mercer County Prosecutor's Office submitted in support of the search warrant. On October 25, 2004, Novembre requested a warrant to search 105 Wayne Avenue in Trenton. There were two separate units in the building and Novembre did not know which unit Allen Daniels, the principal suspect, had entered to obtain drugs on one occasion. Consequently, Novembre requested that the warrant be issued to search the apartment at 105 Wayne Avenue to which Allen Daniels had "possession, custody, control, or access."
In the affidavit, Novembre related the background leading up to the search warrant request. He explained that during the months of August and September 2004, the Trenton police, with the assistance of an unproven confidential informant, focused their investigation on Daniels. During that period, the informant made a controlled buy from Daniels and his brother "Booby" at 150 Hoffman Avenue, Trenton.
Sometime in September 2004, the Prosecutor's Office took over the investigation of Daniels' drug activities. On September 21, 2004, Novembre and Sergeant Frascella met with the informant. At that time the informant indicated that Daniels had moved his residence to an apartment in Lawrence Township and also utilized a different apartment at or around 9 Sanhican Drive, Trenton, to store heroin and cocaine. Following that meeting, the police arranged for the informant to make a series of controlled buys of drugs from Daniels. As a result of those controlled buys, the police obtained evidence of Daniels' drug activity at three locations: 150 Hoffman Avenue; his residence in Lawrence Township; and an apartment at 9 Sanhican Drive.
On October 20, 2004, Novembre applied for search warrants for Daniels, his brother "Booby," Daniels' car, and the three locations where the controlled buys occurred. In anticipation of executing the search warrants, on October 21, 2004, Novembre arranged for surveillance of Daniels' residence while the informant attempted a buy of cocaine and heroin. The informant contacted and met Daniels at the Hoffman Avenue address. While there, Daniels told the informant that they needed to "take a ride" to obtain the heroin. The police observed Daniels and the informant enter Daniels' car and drive to 105 Wayne Avenue. Once there, Daniels exited the car, walked to the front door, waited for someone to open it, and entered. After approximately five minutes, Daniels returned to the car accompanied by another person, unknown to the police at that time but later identified as defendant, Quinn Marshall. The informant, who had remained in the car, paid Daniels and received the drugs. The occupants in the car drove back to the Hoffman Street location.
Later in the debriefing with the police, the informant identified the other person with Daniels as Daniels' cousin, known as King Zeke, but the informant did not know the location inside the building from which Daniels retrieved the drugs. The informant also recounted that Daniels had indicated that he would be taking drugs to the Sanhican Drive location.
Novembre obtained information from Public Service Gas and Electric that there were two apartment units inside 105 Wayne Avenue and that Daniels was not listed on either account. Novembre also related that neither the Division of Motor Vehicles nor the State Bureau of Identification was able to assist in identifying which unit within 105 Wayne Avenue Daniels had entered.
Novembre requested a search warrant for the apartment within the premises of 105 Wayne Avenue to which "Allen Daniels, A/K/A 'Marty' has possession, custody, control or access." In addition, Novembre requested that the warrant include the following conditional language:
[t]he search warrant for the premise[s] will be executed if and only if the following specifically described events which give rise to probable cause actually occur so as to protect against premature execution of the search warrant, namely: (1) that Allen Daniels is secured outside 105 Wayne Avenue and (2) that a search of Allen Daniels reveals documentation or keys which identify the specific apartment inside 105 Wayne Avenue to which Allen Daniels has possession, custody, control, or access, or if he divulges such information to the officers executing the search warrant for his person. In the event that the officers are unable to identify the apartment utilized by Allen Daniels through the above-mentioned means, this premises warrant will not be executed.
The trial court approved the search warrant for the premises and included virtually identical conditional language to that proposed in Novembre's affidavit. The court signed the search warrant on October 25, 2004, at 8:40 a.m.
Four days later, on October 29, 2004, at approximately 8:10 a.m., the police executed the search warrants for the multiple locations other than 105 Wayne Avenue and sought to satisfy the conditions on the warrant for 105 Wayne Avenue. The police found Daniels and his girlfriend at the Lawrenceville address. They immediately placed Daniels under arrest and informed him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Lieutenant Straniero then asked Daniels which apartment he frequents at 105 Wayne Avenue. Daniels replied that he does not stay there. After further questioning, Daniels revealed that King Zeke stayed in the first floor apartment. When Straniero asked how many times he had been to 105 Wayne Avenue, Daniels responded, "I been over there, you don't need to ask me that question. You know I been over there." Based on that information, Straniero instructed other officers to execute the search warrant in ...