On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-11-02609.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Baxter and Koblitz.
After a negotiated plea of guilty, defendant John J. Rockford, III appeals the March 10, 2010 denial of his motion to suppress the large quantity of various controlled dangerous substances (CDS) found in his home on August 24, 2007. Defendant argues that the planned use of a flash-bang device outside his open garage door before knocking and announcing at the front door violated the knock-and-announce warrant issued by a Superior Court judge who denied the police request for a no-knock warrant. Defendant argues that this violation should result in the suppression of the evidence. After reviewing the record in light of the contentions advanced on appeal, we find the police disregard of the knock-and-announce provision of the warrant and use of a flash-bang device requires the suppression of all evidence.
On November 19, 2008, a Monmouth County Grand Jury indicted defendant on all fourteen counts of Indictment No. 08-11-2609,*fn1 charging defendant with: fourth-degree possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10a(3) (count one); third-degree possession of more than an ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(11) (count two); attempted distribution of more than an ounce of marijuana, N.J.S.A. 2C:35-5b(11) (count three); third-degree possession of psilocybin, N.J.S.A. 2C:35-10a(1) (count four); third-degree possession of psilocybin with intent to distribute, N.J.S.A. 2C:35-5b(13) (count five); third-degree possession of lysergic acid diethylamide (LSD), N.J.S.A. 2C:35-10a(1) (count six); first-degree possession of LSD with intent to distribute, N.J.S.A. 2C:35-5b(6) (count seven); third-degree possession of methylenedioxymethamphetamine or "Ecstasy" (MDMA), N.J.S.A. 2C:35-10a(1) (count eight); third-degree possession of MDMA with intent to distribute, N.J.S.A. 2C:35-5b(3) (count nine); third-degree possession of prescription drugs (count ten); third-degree possession of prescription drugs with intent to distribute, N.J.S.A. 2C:35-5b(5) (count eleven); fourth-degree interception of emergency communications for unlawful purposes, N.J.S.A. 2C:33-21 (count twelve); fourth-degree possession of a radio to intercept emergency communications while committing or attempting to commit a crime, N.J.S.A. 2C:33-22 (count thirteen); and fourth-degree unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3j (count fourteen).
After his motion to suppress was denied, defendant entered a guilty plea to count seven, first-degree possession of LSD with intent to distribute, and count eleven, third-degree possession of prescription drugs with intent to distribute, in return for the dismissal of the remaining charges. Defendant reserved the right to appeal the denial of his motion to suppress pursuant to Rule 3:5-7(d).
On July 9, 2010, pursuant to the Brimage Guidelines,*fn2
the court sentenced defendant to a term of ten years in
prison with a three-year period of parole ineligibility and a
twelve-month driver's license suspension on count seven. The court
sentenced defendant on count eleven to a concurrent term of five years
in prison and an additional six-month driver's license suspension. The
court imposed various fees and penalties totaling $3380 and stayed the
sentence pending appeal.
Manalapan Police Detective Michael A. Ratta prepared an affidavit seeking a no-knock search warrant for defendant's parents' home, where defendant lived, a shed on the property, defendant's 1996 Ford Mustang and his father's Toyota Sequoia. Ratta attested to his knowledge of the following facts. In August 2007, a Manalapan Township Police Officer told Ratta that an anonymous informant reported that defendant was selling marijuana and prescription pills from the garage of his house, located in a residential neighborhood the police described as not "hostile," where he lived with his elderly parents, a short distance from the Manalapan Police Department. Defendant had previously been arrested for possession of less than fifty grams of marijuana, less than five grams of hashish, and drug paraphernalia. Additionally, the police had previously investigated him in 2004 for criminal mischief, as well as allegedly stealing $2500 in cash from a friend, who also reported seeing large quantities of pills and marijuana while shooting a BB gun in defendant's garage.
Defendant's father had four firearms registered in his name: three handguns and a Daisy BB gun. Defendant's father also had two additional pending handgun applications. Defendant often accompanied his father to the police station to inquire about the status of these applications. Because defendant lived with his father and evidenced an interest in his father's gun applications, Ratta believed that defendant likely had access to the firearms.
The police began video surveillance of defendant and his home, which over the course of five days revealed a pattern strongly indicative of drug trafficking. Defendant frequently opened the garage door to allow entry to visitors, who would leave after a short period of time, clutching objects handed to them by defendant. Defendant would then close the garage door.
On other occasions, groups of people would sit in the garage smoking what Ratta suspected to be marijuana. Ratta's search warrant affidavit requested a no-knock search warrant based on the probable presence and accessibility of firearms to defendant.
Lieutenant Michael Fountain, who had attended "a [SWAT (special weapons and tactics)] command and decision-making school," testified at the suppression hearing to the following facts. The police department first obtained flash-bang devices in February 2006. This was the only time through July 2008 that one was detonated during any operation, other than for training purposes. Based on indications of drug trafficking activity, the Manalapan Police Department decided to conduct the search with a special unit, the six-member Emergency Response Team (ERT), which the department put together to deal with "higher risk operations." Originally, the ERT was put together for "active shooter acts and violent response." Fountain is commander of the Manalapan ERT, and all ERT members have SWAT training. They were also trained in the use of flash-bang devices, and each member was issued a device to be used in the appropriate circumstances.
The police department completed a "raid action plan" involving the use of a flash-bang device. The plan involved entering defendant's house through the garage while the garage door was open and defendant was engaged in a CDS transaction. The plan identified the "primary target" as defendant and "secondary targets" as defendant's father and mother as well as "unknown buyers." The police walked through a similar home in order to familiarize themselves with the general layout they were likely to face once inside defendant's home.
The police action plan involved twelve officers who were divided into three teams. Team one consisted of Lieutenant Fountain, Sergeant Paul Seetoo and three other officers. Seetoo was to drive to the suspect's home and park on the adjacent neighbor's driveway, while Fountain was to throw the flash-bang device onto the Rockford's neighbor's driveway from the window of the police car. Then, the three other officers on the team were to proceed immediately into the garage to detain anyone in the driveway and garage, then clear and secure the rest of the first floor.
Team two consisted of four officers, three of whom were to knock and announce themselves at the front door, then proceed to the second floor, and secure the foyer and the second floor. The third, or patrol, team, made up of three officers, was to stay at the back of the residence and stop anyone attempting to flee.
Based on the Manalapan Police Department's application, on August 23,
2007, the judge approved a search warrant for defendant's residence,
which was described as having a shed on the property,*fn3
but declined to include the no-knock provision. No arrest
warrant was issued. After the issuance of the knock-and-announce
warrant, the police filled out a "threat assessment matrix" as they do
after the issuance of every search warrant, assigning points for
various relevant factors. The threat matrix added up to nine,
consisting of one point for a drug warrant, three points for the
suspect's history of drug involvement, one point because only minimal
force would be required to effect an entry through the open garage
door, and four points because the suspect had easy access to firearms.
On its face, within a box designated as "Decision Ma[tr]ix," the
pre-printed standardized matrix indicates:
01-14 Points Service/execution may be handled by unit supervisor. 15-24 Points Consultation with the Monmouth County Emergency Response Team (MOCERT) Coordinator is required. MOCERT service of the warrant is optional. 25 plus Points Monmouth County Emergency Response Team (MOCERT) is required for service/execution of the warrant.
Although the police matrix indicated only nine points, based on that matrix and "other factors," Fountain decided to execute the search warrant according to the plan they had already drafted involving the use of the Manalapan ERT and a flash-bang device. Fountain responded to questions concerning why the police continued to use a strategy involving the planned use of a flash-bang after the no-knock provision of the warrant was disapproved, stating:
[O]nce I knew I had a knock-and-announce, I knew we really had no element of surprise. They knew that we were going to be going to the door. At that point, it became maybe even more important for me to utilize the flash-bang, to divert the attention of the suspects.
Fountain acknowledged that the police could have executed the warrant when defendant was gone, as they had seen him drive away during their surveillance of the residence. They chose to execute the warrant when defendant was in the process of a drug transaction to catch him during a sale.
On August 24, 2007, a sunny afternoon, the police carried out their plan. Ratta, the officer conducting surveillance, notified the team when the garage door was opened. The rest of the plan was then followed with one inadvertent deviation. Because Sergeant Seetoo overshot the neighbor's driveway, he parked directly in the driveway of the Rockford residence.
Despite this error, Fountain proceeded to detonate the flash-bang in defendant's driveway rather than the neighbor's driveway.
The officers then approached two men standing at the open garage entrance, loudly announcing their presence by shouting: "Police, search warrant. Police, we have a search warrant. Police, we have a search warrant." Although the purpose of the flash-bang was to "draw them out," in fact, the two men went back into the shadow of the garage. As the two men retreated into the dark garage, which was difficult for the officers to see into because of the bright sunshine outside and the effects of the flash-bang, the officers continued loudly announcing their presence and ordering: "Don't move. Police, don't move. Police, don't move." Fountain immediately recognized Rockford from his description as a tall white male weighing about 300 pounds. Fountain had also seen defendant before.
All of the officers were dressed in dark blue police uniforms over which they wore black vests with "Police" written across the chest in white, three-inch letters. Some of the officers wore helmets as well. Fountain aimed a service weapon at the garage, while Seetoo illuminated the inside of the garage with a light mounted on his rifle. Rockford and the other man then complied with the orders of the police, placing their hands in the air. However, when Fountain ordered the two men to come out of the garage, only the other suspect complied, while Rockford did not. Fountain then entered and grabbed one of Rockford's arms to drag him outside, and Rockford then complied with police orders. Fountain then joined Seetoo and two other officers at the garage door leading into the house. Fountain knocked for three to four seconds. After hearing the other team of officers at the front door, he opened the unlocked door leading from the garage into the home.
After Fountain and Seetoo entered, they clearly heard team two, whose leader was carrying a machine gun, knocking on the front door while loudly announcing their presence. Six or seven seconds later, team two began an unsuccessful attempt to breach the front door with a battering ram, during which team two heard a woman screaming.
Seetoo went upstairs to check for other occupants, pointing his rifle
and wearing his helmet and black police vest. He encountered
defendant's approximately sixty-nine-year-old mother,*fn4
an "elderly female . . . in a state of disbelief" who was
screaming and crying while team two tried to batter down her front
door. Fountain directed team two to stop battering the
front door and to go around the outside of the house and enter through
the interior garage door.
Defendant's approximately seventy-four-year-old father discovered the police at his home when he returned from a walk shortly thereafter. The police discovered the CDS and other evidence in the garage, defendant's bedroom and the two vehicles.
Twenty-two-year FBI veteran Christopher K. Curran, a member of its Hostage Rescue Team, testified as an expert in SWAT operations, tactics, planning and deployment, and use of diversionary devices, including flash-bang devices. In addition to extensive military experience involving explosives, Curran has specialized experience in "close quarter battle" situations such as hostage rescues, in which police engage in armed confrontation with criminal suspects following planned movements to seize control of the situation. He has experience in training others in the proper use of the flash-bang and chooses which flash-bangs the FBI will purchase and deploy, a process that requires extensive research into available flash-bang models, their properties and suitability for use.
Curran testified to the following information. A "flash-bang," as its name suggests, is a device that, when deployed, emits a bright flash and a loud bang, distracting, disorienting, and momentarily blinding and deafening those exposed to its effects.*fn5 It is often used by police agencies in executing warrants, in order to defuse resistance and regain the element of surprise before potentially dangerous suspects recover their wits. It is designed to "distract, disorient and surprise."
A flash-bang is not a firearm nor does it emit projectiles or fragments when deployed properly. It is not intended to cause any permanent harm and is generally safe for humans and animals at a distance of five or six feet. While a flash-bang is not a weapon, it can be dangerous if it is used improperly. Indeed, the specifications for the device used in this case state in bold print: "Improper use can result in death or serious bodily injury."
Based on his review of the records relating to the use of the flash-bang in this case, Curran concluded that the Manalapan Police's written plan for executing the search warrant was "safe and proper" and "tactically sound." Curran determined that deployed as it was in this case, the flash-bang did not "pose any danger to a person" or "danger to property" and "was not used as a weapon." Curran also did not consider it significant that the flash-bang was not deployed precisely as described in the written plan, as it was detonated in the Rockfords' driveway and not the neighbor's driveway.
Curran opined that the use of the flash-bang "was not only prudent but necessary" under the circumstances. In his opinion, under these circumstances the type of search warrant obtained made no difference with regard to the use of the flash-bang device.
Defendant raises the following issues on appeal:
BECAUSE THE UTILIZATION OF THE ERT TEAM AND FLASH BANG DEVICE CONSTITUTED AN UNREASONABLE EXERCISE OF THE POLICE WARRANT POWER, THE LAW DIVISION'S DENIAL OF THE DEFENDANT'S MOTION TO SUPPRESS SHOULD BE VACATED AND REVERSED.
A. The Use of the Flash Bang Device Constituted An Abuse of Discretion and Represents An Unreasonable Use of the Police Authority.
B. The Defendant Urges the Appellate Division To Adopt the Cogent and Logical Reasoning Employed By the Appellate Division in State versus Robinson (399 N.J. Super. 400), Which Was Reversed On Technical Grounds Having Nothing To Do With the Flash Bang Issue In That Case.
C. Flash Bang Devices Are Inherently Dangerous, and Should Be Utilized With Due Caution By Law Enforcement Personnel, Especially In SWAT Type Militaristic Executions of Search Warrants.
D. The Instant Case Represents An Example of the Inappropriate Militarization of Local Police Departments In the Execution of Search Warrants.
E. The Trial Court's Closing Comments Indicate An Attitude Critical of the State's Execution of the Search Warrant In This Case.
F. The Law Division's Dicta Opining That Suppression Does Not Represent An Appropriate Remedy In This Case Represents Clear Error.
IN ONLY WAITING THREE TO FOUR SECONDS BEFORE ENTERING THE RESIDENCE DOOR FROM THE GARAGE, THE POLICE VIOLATED THE CONSTITUTIONAL "KNOCK AND ANNOUNCE" RESTRICTIONS PLACED UPON THE SEARCH WARRANT.
The trial court found that the police did not violate the knock-and-announce provision and denied the motion to suppress the evidence. In its decision, the trial court summarized Curran's opinion as follows: "He concluded that the plan developed by the officers . . . . in his opinion did not violate the 'knock and announce' provision of the warrant." The court further stated that it "relie[d] heavily on the expert opinion of Special Agent Christopher Curran of the F.B.I. . . . [that] [a]ll were sensitive to Constitution considerations, re: the type of force used . . . ." Although not objected to by defense counsel or raised as an issue on appeal, opinion testimony from Curran that the police use of the flash-bang device was consistent with the knock-and-announce warrant was impermissible. The trial court should not rely on legal opinions of a federal law enforcement officer. Moreover, legal conclusions "are not appropriate objects of expert testimony." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 702 (2011); see also State v. Moore, 273 N.J. Super. 118, 127-28 (App. Div.) (concluding that expert testimony of an experienced appellate lawyer was inadmissible on a motion for post-conviction relief alleging ineffective assistance of appellate counsel), certif. denied, 137 N.J. 311 (1994). The court appropriately accorded weight to Curran's expertise in the safe and proper use of the flash-bang device. Because we review the application of the law to the facts de novo, we disregard Curran's view that a flash-bang device did not violate the knock-and-announce warrant in these circumstances.
"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.'" State v. Robinson, 200 N.J. 1, 13-14 (2009) (quoting Miller v. United States, 357 U.S. 301, 308, 78 S. Ct. 1190, 1195, 2 L. Ed. 2d 1332, 1337 (1958)). Although "[t]he rule is firmly embedded in our common law heritage[,]" id. at 14, "the Supreme Court has not yet directly addressed the substantive issue regarding the use of flash-bang devices with a knock-and-announce warrant." Kevin G. Byrnes, N.J. Arrest, Search & Seizure, § 9:2-2 (Gann 2011-12).
In State v. Robinson, 399 N.J. Super. 400 (App. Div. 2008), rev'd on other grounds, 200 N.J. 1 (2009), we considered the legality of the use of a flash-bang device with a knock-and-announce warrant. In Robinson, we reversed the denial of defendant's motion to suppress evidence concluding that the police did not wait long enough after announcing before forcibly breaking down the defendant's door, and the flash-bang device detonated upon entry in connection with a knock-and-announce warrant "absent unforeseen exigent circumstances supporting the use of force, . . . nullifie[d] the legal efficacy of such warrant[.]" 399 N.J. Super. at 413, 417. The Supreme Court reversed our decision holding that the twenty- to thirty-second delay between announcement and forced entry was not unreasonable, and the objection to the use of a flash-bang device was raised for the first time on appeal, and should therefore not be considered. Robinson, supra, 200 N.J. at 18-19.
Taking into account that the device, as described by the State's experts, essentially deprives its target of the sense of vision and hearing and can cause serious bodily injury or death if misused, it may well qualify as a "use of force," even when used as directed, and its use must be reasonable. See Boyd v. Benton Cnty., 374 F.3d 773, 779 (9th Cir. 2004).
We have held that although the police need not obtain prior judicial approval for the use of a flash-bang device, the use of such a device must be "objectively reasonable . . . in the situation presented." State v. Fanelle, 385 N.J. Super. 518, 533-34 (App. Div. 2006). The planned use of a flash-bang device such as the one used here might well be appropriate in this situation if the judge had approved a no-knock warrant. The existence of four firearms in the home, with a report of discharging a BB gun in the garage in the past, coupled with defendant's prior criminal history, although minor in nature, and evidence of frequent drug distribution from the garage would have provided a reasonable basis for the use of a distraction device prior to the police entering the home unannounced.
Our concern arises from the planned use of the flash-bang device before knocking and announcing, after the judge denied the no-knock warrant and without the occurrence of any unexpected danger or resistance on the part of defendant. The State frankly conceded at oral argument that it believed the judge erred in requiring the police to knock on the door and announce their presence before entering the residence to execute the search warrant. The State chose not to seek an emergent appeal of the judge's denial of the no-knock provision of the warrant. R. 2:9-8; R. 2:8-1. The police are not free to violate a provision in a warrant they do not agree with. The use of a flash-bang distraction device right outside of a home before knocking on the door makes it extremely difficult for people inside the home to respond promptly and calmly to a knock on the door. The device is intended to startle and alarm people, emitting a deafening sound and blinding light. Defendant's mother was found on the second floor of the home, distraught and frightened. She testified that when the flash-bang went off she thought the furnace had exploded and did not hear the police knocking on or announcing their presence at the front door.*fn6 She may well have not heard the police knocking due to the deafening sound of the flash-bang. The next thing she heard after the explosion was the police using a battering ram in an attempt to break down her front door.
The police had the garage under surveillance for several days during which defendant at times left the home. They chose not to execute the warrant when defendant was absent, but rather when defendant opened the garage door to facilitate a drug transaction. Although this decision to execute the warrant during a sale had some tactical advantages, it also exposed the officers to dangers that would not otherwise be present. Had they chosen to wait until defendant left the premises, the use of the flash-bang would have been completely unnecessary. It appears to us that the police chose this tactic in part to enable them to use the flash-bang device for the first time, as they had been trained in its use, but never had an opportunity to use the device in an actual operation.
Pursuant to their detailed plan, the police waited until the garage door opened to set off the flash-bang and raid the home. One team entered the garage while another knocked on the front door. This planned execution of the warrant violated its knock-and-announce provision. By entering the garage, the police entered defendant's home. See State v. Nikola, 359 N.J. Super. 573, 585 (App. Div.) (indicating that an attached garage is part of the home, not its curtilage), certif. denied, 178 N.J. 30 (2003). The police entry into the garage after detonating the flash-bang nullified the knock-and-announce warrant, converting the search of the home into a warrantless one, which was not justified by exigent circumstances. The State does not argue any other exception to the warrant requirement justified the search. Police may not stake out a home and wait for a door to open to justify an entry without knocking. If the police were permitted to wait for a door to open and then enter unannounced to bypass the knock-and-announce requirement, that requirement would lose all efficacy. Neither may the police detonate a flash-bang before announcing, absent an unanticipated danger presenting itself. See Robinson, supra, 399 N.J. Super. at 417 (explaining the need for an unanticipated dangerous condition where the police detonated the flash-bang after announcing). Knocking and announcing became a sham in this matter once the flash-bang was detonated and the garage was entered.
The police entered through the garage into the rest of the home, after defendant and his customer were secured, with a machine gun, rifles and handguns, dressed in helmets and police vests. The police knew that the only other occupants of the home were defendant's elderly parents. Under the totality of the circumstances, the execution of this warrant was objectively unreasonable and therefore fatally defective. Fanelle, supra, 385 N.J. Super. at 533; see Boyd, supra, 374 F.3d at 779 (explaining that "it cannot be a reasonable use of force under the Fourth Amendment to throw a flash bang device 'blind' into a room occupied by innocent bystanders absent a strong governmental interest, careful consideration of alternatives and appropriate measures to reduce the risk of injury"). See also State v. Lashley, 353 N.J. Super. 405, 412 (App. Div. 2002) (explaining that "the ...