August 4, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONNIE LINNEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-09-0985-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2009
Before Judges Skillman and Collester.
Pursuant to a plea agreement, defendant Ronnie Linnen entered a guilty plea to second-degree possession of cocaine with intent to distribute within 500 feet of a public housing complex, contrary to N.J.S.A. 2C:35-7.1. On October 14, 2004, he was sentenced in accordance with the plea bargain to a term of eight years with four years of parole ineligibility. Defendant appeals the denial of his motion to suppress evidence obtained as a result of a search warrant. We affirm.
On March 21, 2003, Elizabeth Police Detective Daniel Merten executed and submitted an affidavit to a Superior Court judge in support of his application for a search warrant at apartment 11-H of Migliore Manor, a public housing project, and for the person of Tina Padua. After setting forth his training and experience in narcotics law enforcement, Detective Merten certified that a reliable confidential informant told him in February 2003, that a Hispanic female known to the informant as "Theresa" was selling cocaine from apartment 11-H of a public housing project at Migliore Manor. After review of records of the Elizabeth Housing Authority, the detective learned that a woman named Tina Padua lived in the apartment. According to police records, Padua had been convicted of two narcotics related offenses in 1990. The confidential informant viewed an arrest photo of Padua and identified her as the person the informant knew as "Theresa."
At the behest of Detective Merten, the confidential informant made purchases of cocaine from Padua during the weeks of February 24, 2003, March 3, 2003, and March 17, 2003. The informant told Merten that on each occasion when entering the courtyard of building 11, Padua was sitting in the second floor front window of the building. The informant called up to her and asked for "Theresa," which was the code for cocaine. On each occasion Padua replied that "Theresa is at home," which let the informant know that she had cocaine. The informant then went to apartment H on the second floor, and Padua answered the door. The informant asked for cocaine and paid Padua the money supplied by the police for the purchase. Padua told the informant to wait and then returned to hand the informant the cocaine. On each occasion the substance received by the informant was submitted for analysis and tested positive for cocaine.
The detective requested that the search warrant issue as a no-knock warrant for the following reasons:
Based on my training and experience, I'm aware that drug trafficking is inherently dangerous and often involves dangerous weapons. I am also aware that those involved in the unlawful distribution of controlled dangerous substances will, if given sufficient opportunity, make every effort to destroy those substances. According to source A (the informant), the front window of building 11, apartment H is used by Tina Padua to observe who approaches. With such a broad view of the courtyard from the window and knowing Tina Padua or any lookouts could provide people inside the apartment with the opportunity to destroy evidence and, more importantly, the opportunity to arm themselves against the police I respectfully request to be permitted to enter the second floor building 11, apartment H without first knocking, announcing or identifying myself, or other officers, in order to prevent the destruction of evidence and provide a margin of safety for all officers involved.
The judge granted the officer's request for a no-knock warrant on March 23, 2003. One week later on March 28, 2003, Elizabeth police officers executed the search warrant and arrested defendant Ronnie Linnen, Tina Padua and Carmello Gines, all of whom were in the apartment when the warrant was executed. In the course of the resulting search the officers recovered cocaine, narcotics paraphernalia, money, a handgun, and ammunition. Tina Padua plead guilty prior to indictment and has been sentenced. Carmello Gines remains a fugitive. Only defendant has appealed the denial of the motion to suppress.
Because the transcript of the April 8, 2004, hearing on defendant's suppression motion could not be located, we remanded the case for reconstruction of the record. The reconstruction hearing was held on November 30, 2007, and it was noted that no testimony was presented during the previous hearing, only oral argument by counsel.
On appeal the defendant's argument is as follows:
POINT I - THE STATE FAILED TO DEMONSTRATE SUFFICIENT JUSTIFICATION FOR ISSUANCE OF A NO-KNOCK SEARCH WARRANT, NECESSITATING SUPPRESSION OF THE EVIDENCE AND A REMAND TO VACATE THE JUDGMENT OF CONVICTION.
The general principle derived from common law is that police officers must knock on the door of the premises to be searched and announce their identity and purpose before using force to enter. See State v. Fair, 45 N.J. 77, 86 (1965); State v. Smith, 37 N.J. 481, 497-500 (1962), cert. denied, 374 U.S. 835, 83 S.Ct. 1879, 10 L.Ed. 2d 1055 (1965). For a no-knock search warrant to issue the following conditions must be satisfied:
First, to justify a no-knock warrant provision, a police officer must have a reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence. Second, the police officer must articulate the reasons for that suspicion and may base those reasons on the totality of the circumstances with which he or she is faced. Third, although the officer's assessment of the circumstances may be based on his or her experience and knowledge, the officer must articulate a minimal level of objective justification to support the no-knock entry, meaning it may not be based on a mere hunch. [State v. Johnson, 168 N.J. 608, 619 (2001) (emphasis supplied).]
See also State v. Jones, 179 N.J. 377, 397 (2004).
The argument that all drug searches necessarily involve exigent circumstances permitting a no-knock entry was rejected by us in State v. Tavares, 364 N.J. Super. 496, 500 (App. Div. 2003). See also Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1421-22, 137 L.Ed. 2d 615, 624 (1997), (rejecting the argument that all drug searches justified a no-knock entry). Generalized statements in drug cases of the affiant's belief that contraband will be destroyed or that there is an inherent risk of danger in drug investigations are insufficient for a no-knock provision. There must be representation of particularized circumstances that to knock and announce would be dangerous, futile or inhibit the investigation by destruction of evidence. Ibid.
Here the State relies on that portion of Detective Merten's affidavit that each time the confidential informant approached the building, Padua was sitting in the window and could see anyone in the courtyard. Accordingly, if she saw or suspected police officers approaching her building, she could warn others in the apartment to destroy contraband and arm themselves with weapons.
On point is State v. Carlino, 373 N.J. Super. 377, 390-92 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005), in which we held that the availability of a surveillance camera or other monitoring equipment at a suspected drug-dealing location to view customers or detect approaching law enforcement officers was sufficient particularized justification for a no-knock warrant because the surveillance equipment constituted a threat to preservation of evidence and the safety of law enforcement personnel. Here Padua sat in the window to screen purchasers and observe activity in the courtyard. As such, she posed the same risk as electronic surveillance equipment to the destruction of contraband and to the safety of officers if they had to knock and announce their presence. We find therefore that Detective Merten's affidavit articulated a sufficient amount of objective justification for issuance of a no-knock warrant.
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