July 2, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LEON A. WALTERS, IV, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 15, 2013.
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Accusation No. 11-10-0352.
Richard W. Berg argued the cause for appellant (Law Office of Robin Kay Lord, LLC, attorneys; Mr. Berg and Robin Kay Lord, of counsel and on the brief).
Jeffrey L. Weinstein, Assistant Prosecutor, argued the cause for respondent (Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney; Mr. Weinstein, of counsel and on the brief).
Before Judges Fisher, Alvarez and St. John.
Defendant Leon A. Walters, IV, appeals the denial of his motion to suppress certain evidence seized during the execution of a search warrant at his home. We affirm.
We briefly summarize the relevant procedural history and the facts based on the record before us.
Defendant was indicted on September 3, 2009. That four count indictment charged him with fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); second-degree possession of a firearm for unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-3(f). That same day, defendant was also charged on a second indictment with two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-4 and 39-7(b)(1).
Defendant filed a motion to suppress evidence obtained pursuant to seven no-knock search warrants issued on April 27, 2009. Judge Stephen B. Rubin, denied the motion in a comprehensive January 8, 2010 written opinion.
On October 18, 2011, defendant pleaded guilty pursuant to an accusation to third-degree possession of assault firearms, N.J.S.A. 2C:39-5(f), in exchange for both September 3, 2009 indictments being dismissed in their entirety. Defendant was sentenced on December 2, 2011, pursuant to the terms of the plea agreement, to a three-year term of probation conditioned upon serving 364 days in Hunterdon County Jail. Appropriate fines and penalties were imposed. Defendant was permitted to file for work release.
The relevant facts are described in the April 27, 2009 search warrant affidavit of Detective Kelsey A. Marsh of the Hunterdon County Prosecutor's Office.
Defendant, a resident of West Amwell Township, shared a driveway with several neighbors. He reportedly dumped gravel on the driveway, creating several large speed bumps. At approximately 8:00 P.M. on April 15, 2009, Erica Bowman was visiting her parents, who shared the driveway with defendant. Bowman became frustrated with the speed bumps, and drove to defendant's residence to discuss them. Defendant's girlfriend answered the door and informed Bowman that he was sleeping. Bowman replied that she would blow her horn until defendant came out, and proceeded to do so for two to three minutes.
Defendant came outside shirtless, holding a long gun. He told Bowman to stop blowing her horn and get off his property, or he would shoot her. Defendant fired two shots at the ground, telling Bowman they were her first and second warnings. Defendant then recited what Bowman believed to be a trespassing statute and raised the gun to his face, taking aim at her and firing a third shot. Bowman got in her car, drove away, and called 9-1-1.
During the course of the investigation, Detective Marsh discovered that defendant had a criminal history which included a harassment charge involving a cross burning incident, aggravated assault, possession of a rifle, possession of a shotgun, possession of hollow nose bullets, and seven counts of malicious damage. Detective Marsh further discovered that police had previously responded to defendant's residence for reported gunshots. Defendant had also called Hunterdon County Communications in October 2007 to inquire about firing a gun on Sundays. The investigation additionally revealed that defendant had purchased and registered five guns in Pennsylvania.
The affidavit described the properties to be searched in detail, as follows:
A single family residence is located at 701 Brunswick Pike, West Amwell, Lambertville City, Hunterdon County, New Jersey, specifically described as Block 30 Lot 2. The property is owned by [defendant]. The residence is located at the end of a long driveway and further described as a two level structure with a beige colored siding. The residence has a brown asphalt roof and white rain gutters. The first level located at ground level contains a front porch with overhanging roof supported by white pillars. To the right of the porch is a large stone chimney. There is another chimney at the western end of the residence. The residence has an attached two bay garage located on the eastern end of the residence. On the second floor above the garage are three dormer style windows that face east. At the rear or southern entrance of the residence, there is a large porch surrounded by a support railing. Also on the property is a large red barn. The barn is located at the beginning of a long driveway. It has a white metal roof and its doors face south, away from Brunswick Pike. At the beginning of the driveway, there is a large green and orange dump truck with a plow attached to the front. On the driver's side door there is an identifier of GVWR 35, 000 in white lettering. There is a red and white for sale sign in the windshield of the truck.
A single family residence is located at 685 Brunswick Pike, West Amwell, Lambertville City, Hunterdon County, New Jersey, specifically described as Block 30 Lot 3.03. The property is owned by [defendant]. The residence is located to the left of the driveway and is clearly visible from Brunswick Pike. There is a black lamp post at the beginning of the driveway. The residence is further described as a two level structure with sand colored stone on the first level and white siding on the second level. The entry door faces south. On the north side of the residence, there are five windows on the first level and four windows on the second level. There is a chimney on the western side of the residence. The residence has a brown asphalt roof.
There is a detached garage with three bays and two dormer style windows on the west side of the building. There is an apartment incorporated into this garage. The apartment is resided in by Quentin Critchley. The residence of Quentin Critchley will be excluded from this search warrant. This apartment has been confirmed by members of the West Amwell Police Department.
Also on the property of 685 Brunswick Pike, West Amwell, Lambertville City, Hunterdon County, New Jersey, is a large garage with an attached office. This building is also owned by [defendant]. The building is located at southern end of the property and is further described as tan in color with a gray roof. There are four large windows with red trim on the western side of the garage. Also on the western side of the building, there is a double window with white trim and a white industrial style door with windows. On the north side of the building, there is a gray industrial style door with a small window. There are double windows with white trim on either side of the gray door. There is a large garage door at the southern end of the building. There are three large windows with red trim on the eastern side of the building.
At the very southern end of the property located at 685 Brunswick Pike, West Amwell, Lambertville City, Hunterdon County, New Jersey, is a large shed type structure. This building is also owned by [defendant]. It is further described as white in color with a white roof. The entryway is located on the north facing side.
The warrant application further identified the evidence sought:
Any and all evidence relating to the crimes of Certain Persons Not to Have Weapons in violation of N.J.S.A. 2C:39-7, Aggravated assault in violation of N.J.S.A. 2C:12-1b(4), Possession of a Weapon for an Unlawful Purpose in violation of N.J.S.A. 2C:39-4a and Terroristic Threats in violation of N.J.S.A. 2C:12-3. Any type of unlawful weapon, firearm, firearm ammunition and supplies, ammunition reloading equipment, and supplies, components which can be readily assembled into a firearm, firearms identification cards, hunting licenses and permits, any instruments used for the maintenance or repair of aforementioned items, and anything else of evidentiary value that a complete and thorough search might disclose.
The application requested the issuance of a "no knock" search warrant, on the grounds that defendant
has a prior history of violent crimes involving the use of weapons. If the officers executing these search warrants are to make their identification or presence known prior to making an entry, they may be subjecting themselves or others to acts of violence or dangerous situations that place themselves at risk for such harm.
Based on Marsh's affidavit, Judge Mahon issued seven search warrants, each containing a no-knock provision. Searches executed pursuant to these warrants found over fifty illegally possessed firearms, including assault weapons and explosives.
Defendant appeals from the January 8, 2010 order denying his motion to suppress evidence obtained pursuant to the search warrants.
Defendant raises three points for our consideration.
THE WARRANT APPLICATION FAILED TO IDENTIFY WITH PARTICULARITY THE PLACE WHERE THE ALLEGED OFFENSES OCCURRED TO PROVIDE PROBABLE CAUSE TO SEARCH DEFENDANT'S RESIDENCE IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION AND N.J. CONST., ART. 1, ¶7.
THE FACTS ALLEGED IN THE WARRANT APPLICATION WERE SO STALE THAT THEY FAILED TO ESTABLISH THAT ANY FIREARMS WOULD BE LOCATED IN THE PLACE ALLEGED.
SINCE THE "NO KNOCK" ENTRY INTO THE RESIDENCE VIOLATED THE REASONABLENESS STANDARD OF THE STATE AND FEDERAL CONSTITUTIONS, ANY EVIDENCE OBTAINED FROM THE RESIDENCE SHOULD HAVE BEEN SUPPRESSED AS THE FRUIT OF UNLAWFUL POLICE CONDUCT.
Certain principles guide our consideration of the contentions raised on appeal. Although we normally grant deference to the findings of fact made by a trial judge in connection with a motion to suppress, there was no evidentiary hearing in this case. State v. Elders, 192 N.J. 224, 243-44 (2007). Instead, counsel and the judge relied on the text of Marsh's affidavit. Our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Goodman, 415 N.J.Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
The Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution afford protection from unreasonable searches and seizures. State v. Davis, 104 N.J. 490, 498-99 (1986) (citing United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605, 613 (1985); State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984)). Consequently, "[b]efore issuing any warrant, a judge must be satisfied that there is probable cause to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place to be searched." State v. Evers, 175 N.J. 355, 381 (2003); State v. Waltz, 61 N.J. 83, 87 (1972) (describing probable cause as "a 'well grounded' suspicion that a crime has been or is being committed" at a particular place).
In State v. Mosner, 407 N.J.Super. 40, 61 (App. Div. 2009), we observed that "[a] search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause[.]" (Quoting Evers, supra, 175 N.J. at 381). Therefore, a reviewing court must give substantial deference to a judge's determination that probable cause existed to issue a search warrant. Ibid. When reviewing the validity of a search warrant the court must look to the totality of the circumstances to see if there was probable cause. State v. Chippero, 201 N.J. 14, 26 (2009); see also State v. Novembrino, 105 N.J. 95, 122-23 (1987).
Defendant argues that since he owned several buildings at the address in question and since Marsh's affidavit never identified the precise location or description of the place where the incident with Bowman occurred, the warrants are invalid. We disagree.
Pursuant to the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, "'no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.'" State v. Marshall, 199 N.J. 602, 610 (2009) (quoting N.J. Const. art. 1, ¶ 7). Accordingly, a magistrate should only issue a warrant if "there is 'probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched.'" Ibid. (quoting State v. Sullivan, 169 N.J. 204, 210 (2001)). "The test requires the court to 'make a practical, common sense determination whether, given all of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Ibid. (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)).
Here, Marsh's affidavit supported a fair probability that weapons would be found in the buildings set forth in the search warrants. Those weapons were evidence of the crimes of possession of a firearm for unlawful purpose, unlawful possession of a weapon, and certain persons not to have weapons.
Defendant also argues that there was too long a gap between the incident with Bowman and the application for the search warrants. He argues that a substantial delay in applying for the warrants undercuts their validity absent proof that the contraband is still in the same location.
Our core concern in considering a staleness challenge is whether "'all the circumstances exhibited . . . reasonably conduce to a belief that the law was being violated at the time the warrant issued?'" State v. Sager, 169 N.J.Super. 38, 44-45 (Law Div. 1979) (quoting State v. Blaurock, 143 N.J.Super. 476, 479 (App. Div. 1976)). More specifically, "'where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant'" in determining whether information is stale. Blaurock, supra, 143 N.J.Super. at 479 (quoting United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)); see also State v. Novembrino, 105 N.J. 95, 124 n.12 (1987).
In this case, Marsh's affidavit sets forth information that defendant illegally possessed weapons at his home. We are satisfied that there was a reasonable basis in the affidavit for the issuing judge to conclude that defendant was engaged in criminal activity involving his home of a "protracted and continuous nature, " such that there was a "well grounded suspicion" that the activity was still taking place when the warrant was issued.
We turn to defendant's claim that Marsh's affidavit failed to support the no-knock request, stating the request was not sufficiently grounded on safety of the officers executing the warrants and that no exigent circumstances existed at the time of execution. We find these arguments unpersuasive.
Typically, when police seek to search a dwelling, they are required to "knock and announce" their presence. State v. Johnson, 168 N.J. 608, 615 (2001). "[A] forcible entry to arrest or search 'where the officer failed first to state his [or her] authority and purpose for demanding admission'" is generally unlawful. 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)).
To justify and secure a no-knock warrant "authoriz[ing] police officers to enter a home . . . without first knocking and announcing their presence[, ]" Johnson, supra, 168 N.J. at 611, the police must present specific facts that demonstrate "'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.'" State v. Jones, 179 N.J. 377, 397 (2004) (quoting Johnson, supra, 168 N.J. at 619). Further, the reasons for that suspicion must be articulated. Ibid. (citing Johnson, supra, 168 N.J. at 619). In doing so, the officer's assessment of the totality of the circumstances "may be based on his or her experience and knowledge, " however, "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." Ibid. (internal quotation marks and citations omitted). This determination is fact-sensitive. Johnson, supra, 168 N.J. at 624 (citations omitted).
Here, there are several facts supporting the no-knock request. Defendant's criminal history exhibited past violence. Specifically, among defendant's convictions were aggravated assault, possession of a rifle, possession of a shotgun, possession of hollow nose bullets, and seven counts of malicious damage. More significant was the incident that prompted the issuance of the warrants, defendant's possession of a weapon which he discharged three times in Bowman's presence. Additionally, as indicated in Marsh's affidavit, was the fact that defendant purchased five weapons in Pennsylvania.
Objectively, these details not only provided facts supporting probable cause to obtain a search warrant, but also displayed heightened risk to citizens and police justifying the use of no-knock warrants. Jones, supra, 179 N.J. at 402; State v. Fanelle, 385 N.J.Super. 518, 526 (App. Div. 2006). Accordingly, we find no basis to disturb the trial court's denial of defendant's motion to suppress.