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State v. Bivins

Superior Court of New Jersey, Appellate Division

May 13, 2014

STATE OF NEW JERSEY, PLAINTIFF--RESPONDENT,
v.
CHAD BIVINS, DEFENDANT--APPELLANT

Telephonically Reargued: January 8, 2014.

Argued; March 27, 2014.

Approved for Publication May 13, 2014.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-06-1396.

Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant ( Joseph E. Krakora, Public Defender, attorney; Ms. Michaels, of counsel and on the briefs).

Jane C. Schuster, Deputy Attorney General, argued the cause for respondent ( John J. Hoffman, Acting Attorney General, attorney; Ms. Schuster, of counsel and on the brief).

Before Judges SAPP-PETERSON, LIHOTZ and MAVEN. The opinion of the court was delivered by SAPP-PETERSON, P.J.A.D.

OPINION

Page 629

[435 N.J.Super. 521]OPINION

SAPP-PETERSON, P.J.A.D.

In this appeal, we consider whether the scope of the permissible area and persons to be searched, pursuant to a search

Page 630

warrant, extends to the location where defendant Chad Bivins and his co-defendant Sayid Jordan were found, seated in a Pontiac, parked five or six houses away from the premises where a search warrant [435 N.J.Super. 522] was being executed. The motion judge denied the motion to suppress the evidence seized following the search of the two men, finding that Bivins's and Jordan's removal from the vehicle and the contemporaneous search of the two men were actions within the scope of the warrant being executed. Based upon our review of the record in light of Bailey v. United States, U.S., 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013), a decision rendered after the trial court denied the motion, we now reverse.

I.

We derive the facts from the suppression motion at which defendant and Trooper Matthew Moore testified. Our standard of review requires that we accord deference to the motion judge's credibility assessments. State v. Rockford, 213 N.J. 424, 440, 64 A.3d 514 (2013) (" An appellate court reviewing a motion to suppress 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." (citations and internal quotation marks omitted)). Although defendant also testified, we consider the legal issues implicated in this appeal based upon the testimony of Trooper Moore, whose testimony the trial court credited in upholding the search.

On March 29, 2011, police executed a " no-knock" warrant at a residence located on Park Boulevard in Camden. The search warrant identified the residence as a " two (2) story single family dwelling located on the south side of Park Boulevard, between Haddon Avenue and Princess Street," and described that " [t]here are multiple concrete steps that lead to the front door." The search warrant commanded police executing the warrant to enter the premises and to search for property specified in the warrant and " all persons present reasonably believed to be connected to said property and investigation." Neither defendant, co-defendant Jordan, nor the grey Pontiac from which they were removed, were identified, in the affidavit submitted in support of the search [435 N.J.Super. 523] warrant application, as persons or property suspected of being connected to the residence or investigation.

Trooper Moore was assigned as part of scene security, which he described as ensuring that no one entered or left the " crime scene" during the execution of the search warrant. Before the officers executing the search warrant entered the premises, Trooper Moore positioned his vehicle about six or seven blocks away, near Camden High School. He explained that once execution of the search warrant was underway, he was asked to " come down to the corner of Park and Princess and make sure nobody entered the sidewalk approaching the house or left the area." He stated the plan called for the officers to enter the premises from its rear. When he received the call that the search warrant was being executed, he proceeded towards his assigned location and testified: " [A]s we were approaching, we got ...


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