November 6, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
STACY DAVIS a/k/a OMAR DAVIS, OMAR S. DAVIS, STACY E. DAVIS, STACY L. DAVIS, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-06-1176.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Before Judges Fisher, Espinosa and Koblitz.
In this appeal, we consider the validity of a warrant to search the entirety of a three-story structure in Newark despite the fact – learned upon execution of the warrant – that the structure contained more than one apartment. Because the judge found, after conducting an evidentiary hearing, that the officer who requested the warrant did not know or have reason to believe the structure housed multiple units, we find the search warrant was valid and conclude the judge properly denied the motion to suppress evidence seized from defendant's apartment.
We need only briefly outline the case's procedural history. After his motion to suppress evidence was denied, defendant entered a guilty plea, pursuant to a plea agreement, to: second-degree possession of a firearm while in the course of committing a drug offense, N.J.S.A. 2C:39-4.1; third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10(a)(1); and two counts of fourth-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b). The trial judge imposed on the second-degree conviction an eight-year prison term subject to four years of parole ineligibility; lesser concurrent terms were imposed on the other convictions.
In this appeal, defendant argues:
I. THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FINDING THAT AN INVALID WARRANT DOES NOT RESULT IN SUPRESSION AS LONG AS THE OFFICER ACTS IN GOOD FAITH.
A. WHETHER THE POLICE RELY ON A MISTAKEN MAGISTRATE OR A MISTAKEN DATABASE, THERE IS NO GOOD FAITH EXCEPTION TO THE REQUIREMENT OF A VALID SEARCH WARRANT IN NEW JERSEY.
B. THE POLICE DID NOT EVEN TAKE REASONABLE STEPS TO IDENTIFY THE SPECIFIC UNIT TO BE SEARCHED, AS REQUIRED BY THE FEDERAL GOOD FAITH EXCEPTION TO A VALID WARRANT.
II. THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
We find insufficient merit in Point II to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's first point presents a variation on problems previously encountered when police seek a search warrant for evidence located in a multi-family structure. Our analysis starts with the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, which provide in nearly identical language that "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." N.J. Const. art. I, ¶ 7 (emphasis added). This particularity requirement "mandates that 'the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended, '" State v. Marshall, 199 N.J. 602, 611 (2009) (quoting Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, 760 (1925)), and was intended "to prevent general searches, " Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72, 80 (1987). As Justice Stevens explained for the Court in Garrison:
By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.
[Id. at 84, 107 S.Ct. at 1016, 94 L.Ed.2d at 80.]
That is, the scope of a lawful search is "defined by the object of the search and the places in which there is probable cause to believe that it may be found." United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572, 593 (1982). As the Court explained through example, "[j]ust as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase." Ibid.
The particularity requirement, however, has presented difficulties when police suspect criminal activity in a multi-unit structure. In keeping with the constitutional principles briefly outlined above, our Supreme Court has mandated that "the affidavit in support of the search warrant must exclude those units for which police do not have probable cause." Marshall, supra, 199 N.J. at 611. In Marshall, the Court found a search warrant – that did not define the particular apartment in a multi-unit structure but, instead, left it to the executing officers to discern the proper location upon execution of the warrant – repugnant to our state constitution. Ibid. In an earlier case, State v. Wright, 61 N.J. 146, 149 (1972), which the Marshall Court limited to its facts, 199 N.J. at 615, the Court found sufficient a description of the premises to be searched as the apartment over which the suspect had "possession, custody, control, or access, " id. at 608; the Wright Court found no constitutional violation because the record demonstrated the police were familiar with the apartment to be searched and there was no likelihood that the wrong apartment would be searched. Marshall differed in that the police did not know which of multiple apartments in a single structure was being utilized by the suspect and because the issuing judge abdicated his authority by leaving it to the police to determine the correct apartment upon execution of the warrant. 199 N.J. at 616-17.
The case at hand differs from both Wright and Marshall because, when applying for the warrant, the police did not realize the structure was a multi-unit structure. We, thus, examine the issues presented from the well-established standpoint that the premises to be searched be described with "reasonable accuracy, " not with "pin-point precision." Wright, supra, 61 N.J. at 149. In this setting, as we have said, a warrant violates the particularity requirement when it authorizes a "search of an entire building when cause is shown for searching only one apartment." State v. Sheehan, 217 N.J.Super. 20, 28 (App. Div. 1987). But we have also recognized, as Judge Baime explained in Sheehan, that "[a]n exception to this rule exists where the multiple-unit character of the premises is not known or is not reasonably apparent to the officer applying for and executing the warrant." Id. at 28 n.1; see also Garrison, supra, 480 U.S. at 85, 107 S.Ct. at 1017, 94 L.Ed.2d at 81 (observing that officers would be required to further particularize the request for a search of the third floor of a structure "if the officers had known, or even if they should have known, that there were two separate dwelling units on the third floor").
Here, the trial judge found that the structure's appearance and what police learned from their informant permitted a reasonable belief that the structure was a single-family dwelling. Indeed, the photographs provided to the judge revealthat the entranceway consisted of two doors which appeared to operate as a single entrance because there was only: one doorknob, one street number, and one mail slot. Although a closer examination revealed the presence of two doorbells near the front doors and multiple gas meters elsewhere on the structure – facts which would suggest the need for further investigation – the officer was unable to observe those features from his vantage point during his surveillance prior to the warrant application. It was not until the actual search was conducted that the presence of multiple units became known.
We, thus, affirm the denial of the suppression motion by deferring to the trial judge's factual findings. State v. Robinson, 200 N.J. 1, 15 (2009). To be clear, our ruling is very narrow. We determine only that the trial judge was entitled to find from the evidence in the record that the investigating officer did not know and had no reason to believe the structure housed multiple units; it does not mean law enforcement personnel are now entitled to ignore evidence that might suggest a structure houses multiple units. Such a failure will likely lead to suppression. We simply hold that, in this case, the judge was entitled to find the officer did not know and had no reason to believe the structure in question housed multiple dwellings, and our standard of review requires our deference to the judge's findings.