On certification to the Superior Court, Appellate Division, whose opinion is reported at 399 N.J. Super. 400 (App. Div. 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 Court determines whether the manner used by police officers to execute a knock-and-announce warrant to search the defendant's dwelling, including the officers' use of a "flash bang" or percussion grenade device, was unreasonable and required the suppression of evidence found during the search.
In December 2003, a police investigation into cocaine sales disclosed that the drug could be purchased from defendant James Robinson at his apartment. On January 9, 2004, police officers applied to the Superior Court for a search warrant for Robinson's apartment. Their affidavit included a detailed description of two illegal drug transactions. The court issued the warrant. Among other things, the warrant specified that the place to be searched was Robinson's apartment and the property to be seized included any evidence suggesting the possession or sale of drugs. The warrant disapproved the execution of the warrant without police first knocking and announcing their presence and purpose. On January 16, 2004, at approximately 6:30 a.m., thirteen police officers converged on Robinson's apartment to execute the warrant. The officers knocked and announced their purpose, but received no response. After a twenty- to thirty-second interval, the officers forcibly gained entry, deployed a flash bang device, searched the apartment, and seized drugs, cash, a paper ledger and a scale. Robinson, who was present, was arrested.
A grand jury indicted Robinson on multiple counts of cocaine distribution and possession. Robinson moved to suppress the fruits of the search. Robinson advanced two arguments. First, he asserted that there was insufficient probable cause to support the issuance of the search warrant because some of the statements contained in the affidavit in support of the warrant allegedly were false. The trial court canvassed the contents of the affidavit and concluded that there was probable cause to believe that a controlled dangerous substance was being sold from Robinson's apartment and therefore the issuance of the warrant was proper. Second, Robinson argued that police had failed to knock and announce their presence when executing the search warrant. In opposition to this argument, the State produced as a witness the detective who had knocked and announced the officers' presence prior to their entry into the apartment. The detective testified that after waiting twenty or thirty seconds, the door was forcibly breached and the officers deployed a "distraction device" or "flash bang" inside the doorway. The detective explained that the purpose of the "flash bang" device was to surprise the occupants of the dwelling to permit the officers to get through the doorway safely. In response to questioning, the detective admitted that the device is not primarily used in executing search warrants. When the detective was asked why the device was used this time, his explanation was interrupted by defense counsel's objection. Agreeing that the detective's explanation was "beyond the point of anything," the trial court sustained the objection. After finding the detective credible and determining that the officers had properly knocked and announced, the court denied Robinson's motion to suppress.
After a jury convicted Robinson on all counts, he appealed. First, Robinson argued that the warrant was not supported by probable cause. Second, and for the first time, he argued that even if the warrant was validly issued, the manner of execution of the warrant-by the use of a "flash bang" device-was unreasonable.
The Appellate Division affirmed the trial court's ruling on probable cause. 399 N.J. Super. 400 (2008). With regard to the amount of time between the knock and announce and the forced entry, however, the panel stated that because the police arrived at 6:30 a.m. and it might take more than thirty seconds to wake up, dress, and walk to the door, "waiting just twenty to thirty seconds before forcibly breaking down the door of a residence renders the search facially unreasonable, and practically nullifies the knock-and-announce condition specifically imposed by the court." The panel then turned to Robinson's argument relating to the use of the "flash bang" device. The panel concluded that "absent unforeseen exigent circumstances supporting the use of force, the use of a flash bang device in connection with the execution of a 'knock-and-announce' warrant, nullifies the legal efficacy of such warrant, rendering the entry and search of the dwelling unconstitutional, in violation of a defendant's rights under Article I, paragraph 7 of the Constitution of the State of New Jersey."
The Supreme Court granted the State's petition for certification. 197 N.J. 259 (2008).
HELD: Defendant's conviction and sentence are reinstated because, in the circumstances of this case, the delay of twenty- to thirty-seconds between the police officers knocking and announcing their purpose to execute a search warrant and their forcible entry into the apartment was reasonable, and defendant's challenge concerning the officers' use of a "flash bang" device was raised for the first time on appeal and was not appropriate for consideration.
1. The knock-and-announce rule renders unlawful a forcible entry to arrest or search where the officer failed first to state his authority and purpose for demanding admission. The rule is not absolute, however. Exceptions have been allowed where immediate action is required to preserve evidence, the officer's peril would be increased, or the arrest or seizure would be frustrated. With regard to the scope of review, an appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record. An appellate court should not disturb the trial court's findings merely because it might have reached a different conclusion were it the trial tribunal. A trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction. It is only then that an appellate court should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. As a result, the Court considers in this matter only whether the motion to suppress was properly decided by the trial court based on the evidence presented at that time. (Pp. 17- 20).
2. Here, the trial court found as facts that the detective knocked on Robinson's door, announced that it was the police and that there was a search warrant, waited between twenty and thirty seconds, and received no answer. The trial court determined that it was only then that a forced entry was necessary. Based on those findings, and confronted with Robinson's failure to raise the reasonableness of the manner of entry during the motion to suppress proceedings, the trial court denied Robinson's suppression motion. Because those factual findings and legal conclusions clearly are supposed by sufficient credible evidence in the record, they are unassailable. (P. 20).
3. The amount of time that must elapse between an announcement and an officer's forced entry depends on the circumstances of the case. The facts known to the police are what count in judging reasonable waiting time. Particularly in narcotics cases, reasonableness in delay is not a function of merely how long it would take the resident to reach the door, but how long it would take to dispose of the suspected drugs. The common factors to be applied in determining the reasonableness of the delay include, but are not limited to, a suspect's violent criminal history, an informant's tip that weapons will be present, the risks to officers' lives and safety, the size or layout of defendant's property, whether persons other than defendant reside there, whether others involved in the crime are expected to be present, and the time of day. New Jersey cases applying these factors have found reasonable time lapses ranging from fifteen seconds to ten minutes depending on the particular circumstances. Here, the Court rejects the Appellate Division's conclusion that the twenty- to thirty-second delay was constitutionally insufficient. Based on the totality of the circumstances presented-including the potential for destruction while entry was delayed further-the Court finds sufficient credible evidence in the record to support the trial court's conclusion that the delay between knocking and announcing and the forcible entry was reasonable. (Pp. 20-24).
4. With regard to the Appellate Division's ruling concerning the flash bang device, Robinson never raised that issue before the trial court. Because the issue's factual antecedents never were subjected to the rigors of an adversary hearing, and because its legal propriety never was ruled on by the trial court, the issue was not properly preserved for appellate review. Although appellate courts in New Jersey retain the inherent authority to notice plain error not brought to the attention of the trial court provided it is in the interests of justice to do so, this exception is not intended to supplant the obvious need to create a complete record and to preserve issues for appeal. Based on that standard, defendant's claim of unreasonableness in respect of the use of a flash bang device in the execution of the search warrant should not have been addressed on direct appeal. The factual shortcoming in this record is dispositive and largely of Robinson's own making: when the State sought to explore the whys and wherefores of using the device, Robinson objected based on the assertion that the testimony was irrelevant to his challenge, which at that point was limited to his unsuccessful claim that the officers had failed to observe the knock-and-announce rule. The trial court sustained that objection. The failure to raise Robinson's present claim during the motion to suppress denied the State the opportunity to confront the claim head-on, denied the trial court the opportunity to evaluate the claim in an informed and deliberate manner; and denied any reviewing court the benefit of a robust record within which the claim could be considered. Given such a record, an appellate court should stay its hand and forego grappling with an untimely raised issue. (Pp. 24-29).
5. Having successfully barred the introduction of proofs concerning the use of a flash bang device before the trial court, Robinson sought-for the first time on appeal-to claim that the use of the device was unreasonable. Robinson never asserts that the failure to suppress the evidence secured by the use of a flash bang device in the execution of warrants creates an issue of trial error clearly capable of producing an unjust result that must be addressed in the interest of justice. On the whole, it was inappropriate to consider, for the first time on appeal, Robinson's belated challenge to the manner in which the warrant was executed. For that reason, the Appellate Division's reasoning and conclusions concerning the use of flash bang devices are rejected. (Pp. 29-30).
The judgment of the Appellate Division is REVERSED, and Robinson's conviction and sentence are REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE RIVERA-SOTO's opinion.
The opinion of the court was delivered by: Justice Rivera-soto
The warrant requirement embodied in both the Fourth Amendment to the United States Constitution, U.S. Const. amend. IV, and in paragraph 7 of Article I of the New Jersey Constitution, N.J. Const. art. I, ¶ 7, limits the power of the sovereign to enter our homes and seize our persons or our effects. A pre-existing common law requirement has been grafted onto that constitutional proscription: that, subject to limited exceptions, law enforcement must first knock and announce its purpose before it lawfully may enter a dwelling to execute a warrant.
In this appeal, we return once more to those bedrock principles. In doing so, we reaffirm that, when law enforcement seeking to serve a warrant has announced its presence and is confronted by silence, a reasonable period of time must elapse between the announcement made and any subsequent forcible entry into the dwelling. We further reaffirm that the determination of what is a reasonable period of time is not driven solely by the length of time elapsed, but instead requires the application of relevant factors in a fact-sensitive analysis.
On January 9, 2004, Investigator Robert Ferris of the Camden County Prosecutor's Office and Detective Jack Welker of the Pine Hill Police Department jointly applied for a search warrant. In the affidavit in support of the warrant, Inv. Ferris and Det. Welker, after setting forth their individual educational and experiential backgrounds in law enforcement, recounted at length the facts of an undercover investigation into cocaine sales by Diane Winter and defendant James Robinson. Through the use of confidential informants, that investigation disclosed that telephone and in-person orders for cocaine were being placed to Winter, and the cocaine could be paid for and picked up at Winter's home. The investigation also disclosed that, if Winter did not have the cocaine needed to satisfy an order in hand, she would contact defendant, who would bring the ordered amount of cocaine to Winter's home. Finally, the investigation disclosed that cocaine also could be purchased directly from defendant at his apartment.
Specifically, on December 10, 2003, Inv. Ferris, acting undercover, and a confidential informant went to Winter's home, where the informant introduced Inv. Ferris to Winter. Once Winter admitted Inv. Ferris and the informant into her home, Inv. Ferris asked for three bags of cocaine. Winter explained that she did not have any cocaine in hand and, thus, would call defendant. Winter did so and explained to Inv. Ferris that defendant "would be over." Within the hour, defendant appeared at Winter's home and asked Inv. Ferris what he needed. Responding to Inv. Ferris's request, defendant produced three bags of cocaine. After inspecting the bags, Inv. Ferris paid defendant for the drugs and, together with the confidential informant, left. Three weeks later, Det. Welker, using a different confidential informant, conducted another controlled buy of cocaine. This time, the informant, acting alone but under strict police supervision, purchased cocaine directly from defendant at defendant's own apartment.
Armed with this information, on January 9, 2004, Inv. Ferris and Det. Welker made application to the Superior Court for a search warrant for defendant's apartment. Their joint affidavit included a detailed description of the two earlier illegal drug transactions. Later that same day and based on the sworn factual representations made in the application, the court issued the requested search warrant. The warrant specified that the place to be searched was defendant's apartment and that the property to be seized included controlled dangerous substance[s] in pill, powder, crystal, liquid or vegetation form, and all objects/things used in connection with said substances, such as scales, papers, wrappings, bags, strainers, cutters, blades, ledgers, monies, and other items, documents, electronic devices including but not limited to digital pagers, cellular phones, answering machine tapes, computers, or things that may constitute evidence relating to [the possession and sale of drugs].
It commanded that the police, "in the name of the State of New Jersey, with the necessary and proper assistance . . . enter and search [defendant's apartment] for the property specified and all persons present therein reasonably believed to be connected with said property and investigation[,]" and that the search was to be executed between the hours of 5:00 a.m. and midnight. The warrant further authorized the seizure of "all such specified property which may be found on the premises." It also ordered that it was to be executed within ten days and that a return on the warrant, including an inventory of the items seized, was to be made "forthwith." Finally, the warrant specifically disapproved its execution without law enforcement first knocking and announcing its presence and purpose.
On January 16, 2004, at approximately 6:30 a.m., and after a discussion and briefing, thirteen police officers, including members of the Berlin Township Police Department's Zone 4 Tactical Team, converged on defendant's apartment to execute the warrant. The officers knocked and announced their purpose; no response was received. After a twenty- to thirty-second interval, the police officers forcibly gained entry and seized drugs, cash, a paper ledger and a scale. Defendant, who was present, was arrested.
Based on the foregoing, the Camden County Grand Jury returned a four-count indictment against defendant. Counts One and Two of the indictment, which related to the December 10, 2003 drug transaction consummated at Winter's home, charged defendant with third-degree distribution of cocaine, in violation of N.J.S.A. 2C:35-5(b)(3), and second-degree distribution of cocaine within 500 feet of the real property comprising a public housing facility, a public park, or a public building, in violation of N.J.S.A. 2C:35-7.1(a). Counts Three and Four of the indictment, which were based on the drugs seized when the search warrant was executed on defendant's apartment on January 16, 2004, charged defendant with third-degree possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1), and third-degree possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5(b)(3). No charges were brought in respect of the January 2004 confidential informant/controlled purchase of drugs from defendant at his apartment.
Defendant moved to suppress the fruits of the search.*fn1 On the return date of that motion, he advanced two discrete claims. First, defendant asserted that there was insufficient probable cause to support the issuance of the search warrant because some of the statements contained in the affidavit in support of the warrant allegedly were false. Addressing that assertion, the trial court noted that there were two separate drug transactions described in the affidavit in support of the search warrant, one of which occurred in the presence and with the participation of an undercover police officer and the other having occurred under the strict supervision of the police. It observed in general that, under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed. 2d 667 (1978), and State v. Howery, 80 N.J. 563 (1979), a defendant challenging the veracity of the allegations contained in an affidavit in support of a warrant bears the burden to "make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit[.]" Franks, supra, 438 U.S. at 155-56, 98 S.Ct. at 2676, 57 L.Ed. 2d at 672. It underscored Franks's command that "if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." Id. at 156, 98 S.Ct. at 2676, 57 L.Ed. 2d at 672; see also Howery, supra, 80 N.J. at 568 (holding that "New Jersey courts, in entertaining veracity challenges, need go no further than is required as a matter of Federal Constitutional law by Franks v. Delaware, supra"). The trial court determined that because "defendant has supplied nothing that challenges the validity of the affidavit . . . he has not made the required substantial preliminary showings, [he is] not entitled to a Franks [h]earing[,] and [he] may not challenge the warrant at this point."
Because the search had been conducted pursuant to a warrant, the trial court was guided by the principles applicable to challenges of searches performed pursuant to a validly issued warrant:
A search based upon a warrant is presumed to be valid once the State establishes that the search warrant was issued in accordance with the procedures prescribed by the rules governing search warrants. The burden of demonstrating the invalidity of such a search is placed upon the defendant. The defendant must establish that there was no probable cause supporting the issuance of the warrant or that ...