On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-12-0919.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
Defendant appeals from his conviction for third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1); and a disorderly persons offense of possession of a controlled dangerous substance, marijuana, N.J.S.A. 2C:35-10a(4). We affirm.
The State's proofs were as follows. At approximately 11:00 a.m., on July 29, 2008, police executed a search warrant at the residence of defendant, who was then living with his nineteen- year-old daughter.*fn1 After the S.W.A.T. team secured the premises, Detective Kenneth Martin informed defendant and his daughter that the police were executing the warrant to search for controlled dangerous substances. Detective Martin, who knew defendant from prior contact, showed defendant the search warrant, and defendant said, "Come on, Kenny, . . . I only got a little marijuana in here. I'll show you where it's at."
Defendant then led Detective Martin to his bedroom and pointed out the marijuana on a shelf attached to the bed's headboard. Investigator Mark A. Higginbottom proceeded to defendant's bedroom, where Detective Martin informed him that defendant was under arrest. As Investigator Higginbottom escorted defendant out of the bedroom, defendant said, "I'm going to lose my house and my job, can you help me[?]" Defendant then said, "[T]here's a little cocaine in my orange boot in my bedroom, Mark, help me out." Investigator Higginbottom returned to defendant's bedroom and informed Detective Martin what defendant had told him.
Detective Martin then located an orange Timberland-style boot on the bedroom floor near the closet and found a bag of cocaine inside the boot. Investigator Higginbottom found three more bags of cocaine inside a white Nike sneaker, and Investigator John Norton found a bag of cocaine on the top of a dresser in defendant's bedroom. Other officers found two items of drug paraphernalia in the same room.
Following his indictment, defendant moved to suppress the drug evidence, arguing that the police did not properly execute the search warrant. On July 27, 2009, the motion judge conducted a hearing. Defendant testified on his own behalf and presented testimony from his daughter. The State presented the testimony of five of the ten officers who participated in executing the search warrant.*fn2
Defendant and his daughter testified that the police had not knocked and announced their presence before entering. They testified that they were each in bed in their respective bedrooms when they heard the police enter, and that their dog began barking only after the police had already entered. The officers testified conversely that they banged on the front door while repeatedly yelling "police, search warrant," that the dog was barking, and that they waited fifteen to twenty seconds before ramming the door and entering.
The judge entered an order denying the motion, concluding in an oral opinion that the officers had executed the warrant with an appropriate knock and announce entry. See State v. Robinson, 200 N.J. 1, 13-14 (2009) (delineating knock and announce principles under New Jersey law). The judge stated:
It certainly seems much more plausible and believable that the dog, which is said to be extremely sensitive, would have heard the approach of ten sets of feet and started barking than not. However, [defendant and his daughter] indicated that the entry of the house occurred so quickly that the dog did not have an opportunity to bark. And, frankly, I find that not to be very credible. Each of the officers indicated that the dog was barking. The dog was located in the living room, which is located in the front of the house . . . . The officers testified they walked up the driveway, around the car, . . . through the walkway[,] and up to the door. That would certainly be right in front of the living room windows where the dog's cage was located.
The judge concluded that after announcing their presence, the officers waited fifteen to twenty seconds before entering, and that this was a reasonable period of time given the dog's barking and the opportunity of defendant to destroy evidence. The judge found that only one of the ten officers was responsible for determining when to enter, and that it was "very unlikely" that "each of these officers would have fabricated their testimony to cover up any failure to knock and announce."
Thus, the judge stated that "[g]iven the testimonies of [defendant and his daughter] and of the officers, I find that the officers' testimonies [are] far more credible, and, therefore, disbelieve ...