May 2, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WANREZE BRADFORD GREEN, A/K/A WARNEZE B. GREEN, WANREZE B. GREEN, WAWREZE B. GREEN, WANRESE B. GREEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-12-1068.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2010
Before Judges Grall and LeWinn.
Defendant was indicted, along with several co-defendants, on the following charges: two counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); and two counts of second-degree possession of cocaine within 500 feet of public housing, N.J.S.A. 2C:35-7.1. All defendants brought a motion to suppress the drugs and, following a hearing, the judge denied the motion. Defendant thereupon pled guilty to all charges without any sentence recommendation by the State. On October 3, 2008, defendant was sentenced to an aggregate term of seven years' imprisonment with a three-and-half-year parole ineligibility period. He now appeals from the denial of his motion to suppress, raising the following contentions for our consideration:
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.
THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE POLICE DID NOT WAIT A REASONABLE AMOUNT OF TIME BEFORE THEY FORCIBLY ENTERED DEFENDANT'S APARTMENT.
Having reviewed these contentions in light of the record, and in consideration of the controlling legal principles, we conclude that defendant's claims are without merit. We affirm substantially for the reasons stated by the motion judge in his written decision of July 29, 2008. We add the following comments.
Plainfield Police Officer Michael Caspersen testified that on August 9, 2007, at approximately 8:00 p.m., he went to apartment 1D at 116 Elmwood Place to execute a "knock and announce" search warrant on the premises; this apartment was known to the police to be defendant's residence. Caspersen was accompanied by "six or seven" officers on the "entry team."
Caspersen drove up to the building in a vehicle that, he stated, "was known throughout the city as a narcotics vehicle." When he exited the vehicle he "could hear people in the courtyard and around the building yelling [']jump out boys, jump out boys.[']" Caspersen took this to mean that people outside were trying to "[a]lert people in the area that narcotics officers were entering into the area."
Caspersen and other officers approached the door of apartment 1D. As one of the officers, Detective Black, was "banging with his hand yelling [']Plainfield Police search warrant,[']" Caspersen received a transmission on his police Nextel phone from an officer assigned to the exterior of the building "yelling [']they're jumping out the windows.[']" In addition, Caspersen heard what "sounded like commotion in the apartment . . . like furniture moving, . . . people running . . . ." He had not heard such noises "before the knock[.]"
Caspersen thereupon "rammed the door." He stated that everything happened "very rapidly[,]" and "[o]nce the transmission came across that they were jumping out the windows [he] executed." The "first thing" he saw inside the apartment was "like a flash of a body running. When [he] . . . hit the door . . . [he] could see the body . . . . [He] also could see a clear shot of the window." A table was by the window and he observed a foot up on the table.
When asked why he did not "wait longer before entering[,]" Caspersen explained:
I felt it was a hazardous situation once they said that they're jumping out the windows. After we knocked and announced the police search warrant, and they jumped out the windows . . . my assumption was there was evidence in there that they were going to destroy or they had an opportunity that they knew we were coming, they were going to arm themselves prior to our entry.
Caspersen testified that plastic bags containing suspected cocaine were found in the kitchen and the living room. Most of the bags were "in view" and not hidden. All of those present in the apartment were arrested because "[i]n [Caspersen's] opinion the location of the evidence in the apartment throughout led [him] to believe that everybody in that apartment had to either have knowledge of what was going on in the apartment or be actively involved in the distribution of the narcotics in that apartment."
Co-defendant Fred Tunis testified that he was in apartment 1D on the day in question. He did not hear anyone knock or "say something to the effect it's the police" before the officers entered the apartment. He was sitting on a couch in the living room by a window and was "[u]nconscious" and "totally drunk." When he heard the police he tried to jump out of the window. Tunis identified defendant and the other co-defendants as being in the apartment at the time.
Co-defendant Darry Edwards also testified that he was in the apartment when the police executed the warrant. He also denied hearing the police knock or announce their presence and said he first learned the police were there "[w]hen they kicked the door in or rammed it in with something big or heavy."
In his written decision, the judge extensively reviewed the evidence. He found that "Caspersen testified honestly, and was the most credible of all three witnesses. His responses were without any hesitation, and he repeatedly made eye contact not only with the court but also with the attorney questioning him." The judge made the following findings:
. . . Detective Black knocked . . . on the door to Apt. 1D. Immediately after, [Caspersen] heard a commotion and was radioed that people were attempting to jump from the windows. The door was rammed, and . . . Caspersen . . . saw upon the door opening, . . . one person running to another part of the apartment, and . . . people near the windows, [which] is not an unexpected reaction to a knock given the circumstances. . . . Accordingly, the court finds that the officers did in fact knock prior to entering the apartment.
Having found . . . Caspersen to be a credible witness, and believing that there were in fact immediate noises coming [from] the apartment and an immediate message from officers outside that occupants were trying to jump from the windows, it is clear . . . under [U.S. v.] Banks[, 540 U.S. 31, 124 S. Ct. 521, 157 L. Ed. 2d 343 (2003)] and Graham [v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443, 455 (2003)], a reasonable officer would believe that immediate entry was necessary to prevent the destruction of evidence and the escape of occupants of the apartment. As a result, the failure to wait a longer period of time after knocking and announcing would not invalidate the search.
The judge noted that, "[w]hen a search is conducted pursuant to a warrant, the defendant has the burden of proving the invalidity of that search, namely, that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable[,]" quoting State v. Sullivan, 169 N.J. 204, 211 (2001) (internal quotation omitted).
We note that defendant does not claim a lack of probable cause to support the issuance of the warrant; rather, both his contentions address the manner in which the "knock and announce" warrant was executed.
When we review a decision denying a motion to suppress, we "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." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation omitted). In short, "on appeal 'we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999) (quoting State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971)).
Application of "[t]hose deferential principles[,]" State v. Robinson, 200 N.J. 1, 15 (2009), satisfies us that the motion judge properly analyzed the parameters of "the knock-and-announce rule[, which] . . . [a]lthough an integral part of the mosaic of procedural mechanisms designed to shield and protect individual rights, . . . 'is not absolute.'" Id. at 14 (quoting State v. Johnson, 168 N.J. 608, 616 (2001)). "Exceptions have been allowed where '(1) immediate action is required to preserve evidence; (2) the officer's peril would be increased; or (3) the arrest [or seizure] would be frustrated.'" Ibid. (quoting State v. Fair, 45 N.J. 77, 86 (1965)).
Here, upon the officers' arrival at the apartment building, individuals outside the building attempted to "[a]lert people . . . that narcotics officers were entering the area." Officers observed people jumping out of windows at the back of the building. Once Detective Black knocked on the door of apartment 1D and announced "[']Plainfield Police search warrant,[']" Caspersen heard "commotion in the apartment" which he described as "a hazardous situation."
The record thus clearly established that Caspersen had a "reason specific to the crime [or] to the person under investigation . . . that [led him] reasonably to believe that destruction of evidence [was] more than a hypothetical possibility[,]" thereby satisfying the so-called "destructibility-of-evidence exception to the knock-and-announce rule." Johnson, supra, 168 N.J. at 620. "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[.]'" Robinson, supra, 200 N.J. at 17 (quoting Hudson v. Michigan, 547 U.S. 586, 590, 126 S. Ct. 2159, 2163, 165 L. Ed. 2d 56, 63 (2006)).
The fact that Caspersen could only describe the amount of time that elapsed between the knock-and-announce and entry as "very quick" does not undermine the judge's decision that the officers acted reasonably under the circumstances, as defendant contends. "In the calculus of reasonableness, . . . [t]he facts relevant to that determination are circumscribed, as 'the facts known to the police are what count in judging reasonable waiting time[.]'" Id. at 16 (quoting Banks, supra, 540 U.S. at 39, 124 S. Ct. at 527, 157 L. Ed. 2d at 354). Reasonableness "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, supra, 490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455. We are satisfied that defendant's contentions are made "with the 20/20 vision of hindsight[,]" ibid., and thus are of no avail.
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