Judges： Lavecchia, Patterson
Filed Date： 4/23/2013
Status： Precedential
Modified Date： 11/11/2024
delivered the opinion of the Court.
On August 24, 2007, officers from the Manalapan Police Department executed a search warrant at the home that defendant John J. Rockford, III shared with his parents. Based upon an investí
Defendant moved to suppress the evidence recovered by the police from the search. He challenged the officers’ use of the flash-bang device prior to knocking and announcing their presence, and their conduct as they entered the garage and the interior of the home, on the ground that the officers violated the “knock-and-announce” provision of the warrant. The trial court denied the motion to suppress, and defendant pled guilty to two drug offenses.
Defendant appealed. A divided Appellate Division panel reversed the trial court’s decision denying the motion to suppress. The panel’s majority held that the preplanned use of a flash-bang device is inherently inconsistent with a knock-and-announce search warrant, and that the officers’ search violated the terms of the warrant, thus requiring the exclusion of the evidence discovered during the search. A member of the panel dissented, finding the officers’ execution of the search warrant objectively reasonable, and concluding that their preplanned deployment of the flash-bang device was proper under the circumstances of this case.
We reverse the Appellate Division panel’s determination. We conclude that the execution of the warrant did not violate defendant’s right against unreasonable search and seizure under the Fourth Amendment to the United States Constitution or Article I, Paragraph 7 of the New Jersey Constitution. We further conclude that the officers’ execution of the search warrant was objectively reasonable, given the setting in which they proceeded- — a home containing multiple firearms that was suspected of serving as the hub of a significant drug distribution operation. We decline to adopt a bright-line rule that would preclude the use of a flash-bang device in the execution of a knock-and-announce warrant absent unanticipated exigent circumstances. Under the totality of the circumstances, we find the officers’ conduct in executing the search warrant to be objectively reasonable and, thus consistent with constitutional standards.
I.
An anonymous informant’s tip triggered the Manalapan Police Department’s investigation of defendant. The informant reported that a man named Rockford in his late twenties or early thirties was selling marijuana and prescription drugs by briefly admitting CDS buyers into his garage attached to his residence located near police headquarters. Officers were familiar with defendant because of prior investigations involving the sale of CDS. They determined that although defendant had been denied a handgun permit because of a previous arrest, defendant’s seventy-seven-year-old father legally owned four firearms. The officers learned that the father had sought two additional permits, and that defendant frequently accompanied his father when he inquired about the applications’ statuses. Thus, from the inception of the investigation, officers were concerned that defendant had ready access to firearms in the home that he shared with his parents.
Led by Detective Michael Ratta, the officers applied for a search warrant for defendant’s residence, a shed on the property, and vehicles registered to defendant and his father. Detective Ratta’s affidavit, submitted in support of the warrant application, set forth the results of the officers’ investigation, including details on the surveillance of the home. The officers requested that the warrant permit them to search for CDS, CDS paraphernalia, evidence of CDS manufacturing, records of proceeds from CDS sales, computer files and firearms. They requested that the court issue a “no-knock” warrant permitting police officers to enter defendant’s residence without announcing their presence or purpose.
With the application for the warrant submitted to the court, the officers planned their operation. Lieutenant Michael Fountain, leader of the Manalapan Police Department’s Emergency Response Team (ERT), led the planning. Lieutenant Fountain was certified as an instructor in the use of the flash-bang device, which the Department had yet to deploy in any police operation. On August 22, 2007, officers met to discuss the execution of both a “no-knock” and a “knock-and-announce” warrant.
On August 23, 2007, a Superior Court judge issued the warrant but directed that it be a knock-and-announce warrant, rather than the requested no-knock warrant. The officers then completed a “risk assessment matrix” to determine the operation’s threat to police safety. Given defendant’s suspected involvement in CDS and defendant’s potential access to firearms, the ERT was charged with leading the execution of the warrant. The Manala
With the search warrant in hand, the officers finalized their plan for the warrant’s execution. The plan called for a dozen officers, divided into three teams, to approach defendant’s home from different vantage points. Team One, consisting of five officers and headed by Lieutenant Fountain, would deploy the flash-bang device outdoors. The plan called for Lieutenant Fountain to toss the device from a vehicle parked in the neighbor’s driveway to defendant’s driveway, and then to proceed into the garage, detaining anyone in the garage and securing the first floor. The four officers comprising Team Two would proceed to the front door of the residence, knock and announce their presence and purpose, and enter the home. Team Three would remain outdoors behind the residence and apprehend anyone attempting to flee.
The officers approached defendant’s home late in the afternoon of August 24, 2007. They waited until the overhead garage door was open, and saw two men standing on the driveway near the open door. They recognized one of the men as defendant, based upon descriptions of him as a very tall individual weighing over 300 pounds. Team One mistakenly parked its vehicle in defendant’s driveway rather than the neighbor’s driveway. Nonetheless, Lieutenant Fountain tossed the flash-bang device from the police vehicle onto defendant’s driveway, between thirty and thirty-five feet from the garage, where it emitted a bright flash and a loud sound. Defendant and the other individual retreated into the garage, pursued through the open door by the officers, who shouted, “[p]olice, search warrant. Police, we have a search warrant.” Lieutenant Fountain pointed his service weapon at the two men and directed them to put their hands in the air, and officers handcuffed them.
Lieutenant Fountain then proceeded to the door that connected the garage to the inside of the home, knocked on the door and announced, for “[m]aybe three or four seconds,” the presence of police with a search warrant. They then entered the interior of
The Manalapan officers’ search of defendant’s home and property yielded considerable evidence. They found three handguns, a rifle with ammunition, a banana clip ammunition magazine, five pounds of marijuana, more than 7000 prescription drug pills in sample packages or bottles labeled for six individuals, blank prescription forms, seventy-six Fentanyl patches and pops, 340 milligrams of lysergic acid diethylamide (LSD), hashish, psilocybin (“mushrooms”) and ecstasy pills. The officers also found processing equipment and paraphernalia including scales, a vacuum sealer, several thousand plastic bags and forty devices used to ingest CDS. The officers also recovered three personal computers, three police radio scanners, mobile telephones and several photographs appearing to depict defendant and others ingesting CDS. The admissibility of this evidence against defendant is the issue before the Court.
II.
Defendant was indicted on fourteen counts: fourth-degree possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(3); third-degree possession of more than an ounce of mari
Defendant moved to suppress the evidence found at his home. The trial court held a four-day suppression hearing. Lieutenant Fountain and Sergeant Paul Seetoo, who participated in the execution of the warrant, testified for the State. They discussed the considerations addressed by the officers in them preparation to execute the warrant, their written plan and the events at defendant’s residence on August 24, 2007. The State also called an expert witness, Supervisory Special Agent Christopher Curran of the Federal Bureau of Investigation. Special Agent Curran testified about the mechanics of the flash-bang device used by the Manalapan Police Department at defendant’s home. He explained that the device emits a bright flash of light and a 174.5-decibel percussion, both of which have a reduced effect when the flash-bang is deployed outdoors. Special Agent Curran opined that the flash-bang device, as used outdoors in this case, was not used as a weapon and posed no danger to the occupants or them property. He testified that its use was “not only prudent but necessary” to ensure the safety of the officers and the occupants, and that this
Defendant and his parents testified on his behalf at the suppression hearing. Defendant’s mother stated that she mistook the sound of the flash-bang device for a problem with her furnace, that she did not hear knocking on the door before hearing the sound of the battering ram and seeing officers in her home, and that she was “scared to death” to encounter an officer pointing a gun at her. Defendant’s father testified he was out for a walk when the officers arrived. He said that upon his return he saw a white mark on his driveway, later attributed to the flash-bang device. Defendant testified that the flash-bang device was deployed about five or six feet from him on his driveway.
The trial court denied the motion to suppress. It concluded that the Manalapan Police Department did not violate the terms of the knock-and-announce warrant. Deeming the testifying officers credible, the trial court determined that the officers knocked and announced their presence and their purpose following the detonation of the flash-bang device. The court concluded that the officers’ entry into the garage and then into the home was constitutionally permissible. Relying upon two Appellate Division decisions, State v. Fanelle, 385 N.J.Super. 518, 897 A.2d 1104 (App.Div.2006), and State v. Robinson, 399 N.J.Super. 400, 944 A.2d 718 (App.Div.2008), rev’d on other grounds, 200 N.J. 1, 974 A.2d 1057 (2009), the trial court held that the flash-bang device was lawfully used in the execution of the knock-and-announce warrant. The trial judge also found that, in any event, the inevitable discovery doctrine provided an independent ground for the denial of the motion to suppress because the officers were lawfully in the residence and would have located the disputed evidence with or without the flash-bang device.
In the wake of the trial court’s denial of his motion to suppress, defendant pled guilty to two of the fourteen charges, first-degree possession of LSD with intent to distribute and third-degree possession of prescription drugs with intent to distribute, in
Defendant appealed the denial of his motion to suppress. He argued that the use of the flash-bang device represented unreasonable police conduct in the execution of the warrant, and that the mere three to four seconds between the officers’ knocking on the door from the garage to the interior of the home and their entry violated the knock-and-announce provision of the search warrant.
The Appellate Division reversed. The majority of the panel held that the Manalapan Police Department’s preplanned deployment of the flash-bang device violated the knock-and-announce provision of the search warrant, characterizing the police tactic as a potential “use of force” and an attempt to circumvent the terms of the warrant. Citing the upsetting effect of the police action on defendant’s “elderly parents,” the Appellate Division majority criticized the officers for executing the warrant while defendant and the others were at the residence. The majority opined that the officers should have waited “until defendant left the premises” before proceeding into the residence. The majority invoked the exclusionary rule to bar the evidence collected by the officers notwithstanding the existence of a search warrant.
One member of the panel dissented. The dissenting judge opined that the use of the flash-bang device in this case neither violated the terms of the search warrant nor constituted an effort to circumvent those terms. She disputed the majority’s conclusion that the officers did not wait a sufficient time between announcing their presence and entering defendant’s home. Noting the presence of several firearms in the residence and defendant’s interest in his father’s pending handgun permits, the dissenting judge
The State appealed as of right, Rule 2:2 — 1(a)(2), and this Court reviews the issues addressed by the dissenting Appellate Division judge. State v. Allegro, 193 N.J. 352, 371 n. 9, 939 A.2d 754 (2008); Gilborges v. Wallace, 78 N.J. 342, 349, 396 A.2d 338 (1978).
III.
The State urges the Court to reverse the Appellate Division’s decision and uphold the trial court’s denial of the motion to suppress. It argues that the Manalapan Police Department’s outdoor deployment of the flash-bang device was safe and reasonable considering the totality of the circumstances that confronted the officers. The State contends that the officers’ entry through defendant’s open overhead garage door did not violate the terms of the knock-and-announce search warrant. The State maintains there is no constitutional requirement that police knock on a door that is open, and that once inside the garage, the officers could lawfully enter the interior of the residence. It further contends that the Appellate Division majority improperly applied the exclusionary rule as a remedy for the constitutional violation that it found.
Defendant argues that the Appellate Division majority properly held that a flash-bang device cannot constitutionally be used in the execution of a knock-and-announce search warrant. Relying upon the Appellate Division’s decisions in Fanelle and Robinson, defendant urges the adoption of a bright-line rule barring the use of a flash-bang device in the execution of a knock-and-announce warrant absent a showing of unforeseen circumstances. He further contends that the officers’ entry through the open garage door violated the terms of the warrant, because the two police teams’ simultaneous knocking on two doors undermined the purpose of
TV.
We consider the factual findings of the trial court, premised upon detailed testimony elicited in a lengthy suppression hearing, in accordance with a deferential standard of review. “ ‘[A]n 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.’ ” State v. Robinson, 200 N.J. 1, 15, 974 A.2d 1057 (2009) (alteration in original) (quoting State v. Elders, 192 N.J. 224, 243, 927 A.2d 1250 (2007)). Those findings warrant particular deference when they are “ ‘substantially influenced by [the trial judge’s] opportunity to hear and see the witnesses and to have the “feel” of the case, which a reviewing court cannot enjoy.’ ” Ibid. (quoting Elders, supra, 192 N.J. at 244, 927 A.2d 1250). To the extent that the trial court’s determination rests upon a legal conclusion, we conduct a de novo, plenary review. State v. J.D., 211 N.J. 344, 354, 48 A.3d 1031 (2012); State v. Gandhi, 201 N.J. 161, 176, 989 A.2d 256 (2010).
V.
The Fourth Amendment to the United States Constitution ensures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and provides that no warrant shall issue “but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Article I, paragraph 7 of the New Jersey Constitution similarly shields our State’s residents from unreasonable searches and seizures. N.J. Const. art. I, ¶ 7. Its reach has been held coextensive to that of the Fourth Amend
Under the federal and state constitutions, the inquiry into the reasonableness of a residential search entails scrutiny of the steps taken by officers to enter and search a home. Johnson, supra, 168 N.J. at 616, 775 A.2d 1273 (citing Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 1918, 131 L.Ed.2d 976, 982 (1995)). If police actions in executing a warrant are objectively reasonable, there is no constitutional violation. Illinois v. Rodriguez, 497 U.S. 177, 185, 188, 110 S.Ct. 2793, 2799, 2801, 111 L.Ed.2d 148, 159, 161 (1990); State v. Maristany, 133 N.J. 299, 305, 627 A.2d 1066 (1993). Evaluating the constitutionality of police conduct in executing a warrant, “the basic test under both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution is the same: was the conduct objectively reasonable in light of ‘the facts known to the law enforcement officer at the time of the search.’ ” State v. Handy, 206 N.J. 39, 46-7, 18 A.3d 179 (2011) (quoting State v. Bruzzese, 94 N.J. 210, 221, 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695-96 (1984)). The terms of the warrant must be strictly respected. “It is well settled that officers searching a person’s home, car or belongings under authority of a search warrant are authorized to use only those investigatory methods, and to search only those places, appropriate in light of the scope of the warrant.” State v. Reldan, 100 N.J. 187, 195, 495 A.2d 76 (1985).
The warrant at issue incorporated a knock-and-announce provision. Such a provision “renders unlawful a forcible entry to arrest or search “where the officer failed first to state his authority and purpose for demanding admission.’ ” Robinson, supra, 200 N.J. at 13-14, 974 A.2d 1057 (quoting Miller v. United States, 357 U.S. 301, 308, 78 S.Ct. 1190, 1195, 2 L.Ed.2d 1332, 1337
As the United States Supreme Court and this Court have recognized, the balancing of individual rights and law enforcement safety is best accomplished by a case-specific analysis. United States v. Banks, 540 U.S. 31, 35-36, 124 S.Ct. 521, 525, 157 L.Ed.2d 343, 352 (2003); Robinson, supra, 200 N.J. at 16, 974 A.2d 1057. Courts should evaluate the execution of each warrant in its factual context, “largely avoiding categories and protocols for searches.” Banks, supra, 540 U.S. at 35, 124 S.Ct. at 525, 157 L.Ed.2d at 352; see also Robinson, supra, 200 N.J. at 16, 974 A.2d 1057 (noting that the standard of reasonableness “ ‘is “necessarily vague,” and turns on the circumstances existing when the police execute the warrant’ ” (quoting Rodriguez, supra, 399 N.J.Super. at 200, 943 A.2d 901)). Accordingly, our task is not to devise an
VI.
The Manalapan officers’ decision to use a flash-bang device as they executed the knock-and-announce warrant raises the primary issue addressed in this appeal. The United States Supreme Court has yet to consider the constitutionality of police deployment of a flash-bang device in the execution of either a knock-and-’announce search warrant or a warrant authorizing a no-knoek entry. Federal case law regarding this issue imposes no blanket prohibition on the use of flash-bang devices in the execution of knock-and-announce warrants. Several federal appellate courts have upheld the denial of suppression motions on a ease-by-case basis. See, e.g., United States v. Boulanger, 444 F.3d 76, 84-85 (1st Cir.), cert. denied, 549 U.S. 906, 127 S.Ct. 235, 166 L.Ed.2d 186 (2006); United States v. Morris, 349 F.3d 1009, 1012-13 (7th Cir.2003); Molina ex rel. Molina v. Cooper, 325 F.3d 963, 973 (7th Cir.2003); United States v. Folks, 236 F.3d 384, 388 n. 2 (7th Cir.), cert. denied, 534 U.S. 830, 122 S.Ct. 74, 151 L.Ed.2d 39 (2001); United States v. Myers, 106 F.3d 936, 940 (10th Cir.), cert. denied, 520 U.S. 1270, 117 S.Ct. 2446, 138 L.Ed.2d 205 (1997).
We can distill several principles from these cases that have relevance here. First, several federal appellate courts have identified careful police planning prior to executing a warrant using a flash-bang device as a factor supporting a finding that law enforcement conduct is objectively reasonable. See Boulanger, supra, 444 F.3d at 80, 85 (noting use of flash-bang device indoors was reasonable when “police planned the search after determining that there were no children or elderly people in the apartment”); Molina, supra, 325 F.3d at 966 (noting police finding, prior to the
Second, the presence of weapons in a residence has been held to weigh in favor of a finding that the use of a flash-bang device was constitutionally permissible. See Boulanger, supra, 444 F.3d at 85 (holding flash-bang deployment was reasonable when “agents were confronted with a situation involving a man with a history of violent crimes, who was a suspect in an armed robbery, was suspected of selling drugs out of the residence to be searched, and who likely possessed what an informant who was not an expert described as a fake gun”); Molina, supra, 325 F.3d at 973 (determining use of flash-bang satisfied test of objective reasonableness where subject of search “had a criminal record that included aggravated assault, was at home, and had access to weapons”); Myers, supra, 106 F.3d at 938 (recognizing defendant, as juvenile, had been implicated in fire bombing and had been convicted of possessing fire bomb and unregistered firearm); see also Morris, supra, 349 F.3d at 1012 n. 1 (noting, in dicta, that use of flash-bang “appear[ed] to be reasonable” where “[t]he police had reason to believe that the inhabitants of the residence were dangerous after finding live ammunition in the trash”).
Finally, in every case in which federal appellate courts have found the use of a flash-bang in the execution of a warrant to be objectively unreasonable, the device had been deployed in an indoor setting in which it posed a risk to occupants and property. See United States v. Ankeny, 502 F.3d 829, 836-38 (9th Cir.2007) (holding officers’ deployment of flash-bang device indoors, in direction of defendant who consequently suffered serious burns, constituted excessive force and may have been unreasonable, but affirming denial of suppression motion because discovery of evi
In New Jersey, two Appellate Division panels have considered the use of flash-bang devices in the execution of search warrants. In Fanelle, the panel reviewed the trial court’s denial of the defendant’s motion to suppress evidence of CDS use, premised upon police officers’ indoor use of a flash-bang device in the execution of a no-knock search warrant. Fanelle, supra, 385 N.J.Super. at 525, 528-33, 897 A.2d 1104. The defendant contended that the use of the flash-bang device “was unreasonable in the present situation and that because of the inherent dangers the use of such devices present, police should be required to obtain prior judicial approval before using one while executing a warrant.” Id. at 528, 897 A.2d 1104. The panel rejected a bright-line rule requiring such prior judicial approval, acknowledging that such a rule “ ‘would embark our judiciary on an enterprise for which we are ill equipped by training or experience[.]’ ” Id. at 533-34, 897 A.2d 1104 (quoting Commonwealth v. Garner, 423 Mass. 735, 672 N.E.2d 510, 516 (1996)). Given “the paucity of the record,” the panel remanded for the development of a more detailed record. Id. at 533, 897 A.2d 1104.
We decline to adopt the Appellate Division majority’s bright-line rule against the use of a flash-bang device to execute a knock-and-announce warrant. We hold that the objective reasonableness of law enforcement’s execution of a warrant that includes the use of this tactic should be determined on a case-by-case basis, considering the totality of the circumstances. Courts should weigh such factors as the scope of any threat of violence presented by the occupant, the physical features of the residence, the
In this case, the search was objectively reasonable. The trial court found that the officers methodically planned the execution of the warrant before it was obtained. It found that the officers alternatively planned for both a no-knock warrant and a knock-and-announce warrant. Based upon their painstaking investigation, the officers suspected defendant of conducting a substantial CDS operation from his home. They knew that defendant had access to several firearms registered to his father, and was intensely interested in the progress of his father’s application for additional firearm permits. The officers also were aware that individuals associated with CDS sales could be present when the search warrant was executed. Moreover, the officers neither contemplated nor executed an indoor deployment of the flash-bang device. Instead, Lieutenant Fountain tossed the device from a vehicle onto defendant’s driveway, posing no risk of personal injury or property damage other than a mark on the driveway. Following the deployment of the device, defendant and the other
The Appellate Division majority repeatedly invoked the officers’ detailed plan for the execution of the warrant, incorporating the use of the flash-bang device, as a source of particular concern.
VII.
In light of its ruling on the flash-bang issue, the Appellate Division majority did not address the second issue raised by this case: whether police waited a sufficient time after knocking on the door before entering the defendant’s home.
What constitutes a “reasonable time” is “necessarily vague,” and contingent upon the circumstances of the specific case. Robinson, supra, 200 N.J. at 16, 974 A.2d 1057 (citations omitted) (quotations omitted); accord Banks, supra, 540 U.S. at 35-36, 124 S.Ct. at 525, 157 L.Ed.2d at 352. In Robinson, this Court held that a delay of twenty to thirty seconds between officers’ knock and announcement and their forced entry was reasonable as they executed a search warrant for narcotics given “the potential for the destruction of evidence while entry was delayed[.]” Robinson, supra, 200 N.J. at 18, 974 A.2d 1057. The Court cited such factors as the “suspect’s violent criminal history; an informant’s tip that weapons will be present; the risks to officers’ lives and safety; the size or layout of defendant’s property; whether persons other than defendant reside there; whether others involved in the crime are expected to be present; and the time of day.” Id. at 17, 974 A.2d 1057 (citations omitted).
Here, the trial court noted several factors supporting the objective reasonableness of the steps taken by police officers in this case: the officers’ awareness that defendant was likely to have access to his father’s weapons; surveillance showing CDS transactions at the residence; and the sequence of events as the search warrant was executed.
The trial court found that the first team of officers waited until defendant opened the overhead garage door. The officers then deployed the flash-bang device from their vehicle onto the driveway and repeatedly announced, “[p]olice, we have a search warrant” for approximately fifteen seconds before entering the garage through the open door. Defendant retreated into the open garage, pursued by the officers shouting “[pjolice, don’t move. Police, don’t move. Put your hands in the air. We have a search warrant.” The trial court found that two officers then knocked and announced their presence and purpose for three or four
We conclude that the trial court’s factual findings regarding this sequence of events were supported by sufficient credible evidence in the record. See Robinson, supra, 200 N.J. at 15, 974 A.2d 1057; Elders, supra, 192 N.J. at 243, 927 A.2d 1250. We also conclude that those findings amply support the trial court’s determination that the officers’ conduct was objectively reasonable.
Given our holding that the officers’ execution of the warrant was constitutional, we do not reach the question of whether the exclusionary rule is the appropriate remedy for an unconstitutional execution of a knock-and-announce warrant under our State Constitution, an issue that has been addressed by the United States Supreme Court. See Hudson, supra, 547 U.S. at 593-94, 126 S.Ct. at 2164-65, 165 L.Ed.2d at 65-66.
VIII.
The judgment of the Appellate Division is reversed, and defendant’s conviction is reinstated.
Chief Justice RABNER, Justices ALBIN and HOENS, and Judges RODRÍGUEZ and CUFF (both temporarily assigned) join in Justice PATTERSON’S opinion.
Justice LaVECCHIA filed a separate, dissenting opinion.
A court may issue a "no-knock” search warrant premised upon "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,” and when the officers have articulated "a minimal level of objective justification to support the no-knock entry, meaning it may not be based on a mere hunch.” Johnson, supra, 168 N.J. at 619, 775 A.2d 1273; see also Jones, supra, 179 N.J. at 399-400, 846 A.2d 569 (discussing examples of circumstances justifying issuance of a no-knock warrant). Even when the knock-and-announce rule governs, it is not absolute. This Court has recognized exceptions to the rule where "(1) immediate action is required to preserve evidence; (2) the officer's peril would be increased; or (3) the arrest [or seizure] would be frustrated.” State v. Fair, 45 N.J. 77, 86, 211 A.2d 359 (1965) (citations omitted). Neither the showing required for a no-knock warrant nor the applicability of an exception to the knock-and-announce rule is before the Court on this appeal.
Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).
In its decision on remand, relied upon by the dissent, post at 458, 64 A.3d at 533-34, the trial court in State v. Fanelle, 404 N.J.Super. 180, 190-92, 960 A.2d 825 (Law Div.2008), held that the officers' indoor use of two flash-bang devices was objectively unreasonable. The court relied primarily on its findings that defendant posed an insignificant risk to police safety, that there was no indication of the presence of firearms, and that the officers had violated an internal policy on the deployment of flash-bang devices. Id. at 190-93, 960 A.2d 825.
The objective reasonableness of the use of the flash-bang device does not turn on whether the deployment of that device constitutes a “use of force,” an issue disputed by the parties but not decided by the Appellate Division. Instead, the constitutionality of the execution of the search warrant hinges on whether the warrant was executed in an objectively reasonable manner in light of the totality of the circumstances. State v. Ravotto, 169 N.J. 227, 236, 777 A.2d 301 (2001) (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443, 455 (1989)); State v. Jones, 143 N.J. 4, 19-20, 667 A.2d 1043 (1995). Accordingly, we do not determine whether the deployment of the device is a “use of force.”
The dissent emphasizes a factual distinction between the federal case law and this case. Post at 454-55, 458-60, 64 A.3d at 531-32, 533-35. In the federal cases, the flash-bang device was used following the officers' announcement of their presence as they entered a home, whereas in this case, the device was deployed before the officers knocked, announced their presence and entered defendant's home. The distinction cited by the dissent underscores the reasonableness of the officers' conduct in this case. In the cases cited by the dissent, the deployment of the flash-bang device-inside a residence, after the officer’s had gained entry — created a higher risk to the occupants of the dwelling. Post at 458-59, 64 A.3d at 534 (citing Morris, supra, 349 F.3d at 1013; Folks, supra, 236 F.3d at 388; Jones, supra, 214 F.3d at 838; Myers, supra, 106 F.3d at 938-39). In contrast, the officers here did not plan or execute an indoor deployment; they used the device outdoors before even approaching the residence, thus minimizing the risk to the occupants and property.
There is no basis in the record for the Appellate Division majority's suggestion that the Manalapan officers perceived the search warrant in this case as an excuse to debut the Police Department's flash-bang device, which officers had been trained to use, but had yet to be deployed operationally.
The Appellate Division majority opined that the officers should have omitted the use of a flash-bang device and delayed their search until defendant was not on the premises. As the dissenting Appellate Division judge noted, defendant was not the only occupant of his home capable of using the firearms registered
The Appellate Division majority decided an additional issue, holding that evidence collected from defendant’s vehicles should be suppressed because the search warrant did not extend to vehicles. This issue was not raised by either party before the trial court or the Appellate Division panel. Accordingly, "an appellate court should stay its hand and forego grappling with an untimely raised issue." Robinson, supra, 200 N.J. at 21, 974 A.2d 1057; accord Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586, 34 A.3d 769 (2012); State v. Arthur, 184 N.J. 307, 327, 877 A.2d 1183 (2005), In any event, the record suggests that the only evidence that may have been recovered from a vehicle, rather than from the residence or from defendant’s person, was one of the three police scanners yielded by the search. Thus, the question would have no bearing on the outcome, because defendant pled guilty only to drug-related charges; the charge of fourth-degree possession of a radio to intercept emergency communications while committing a crime, in violation of N.J.S.A. 2C:33-22, was dismissed.
In these circumstances, in which officers clearly announced their presence and defendant retreated into the garage, the officers were not required to then pause and knock before entering the garage through the open overhead garage door. See United States v. Combs, 394 F.3d 739, 744, amended by 412 F.3d 1020 (9th Cir.2005) (noting that under certain circumstances knocking "is not invariably required by the Fourth Amendment”); accord United States v. Mendoza, 281 F.3d 712, 716-17 (8th Cir.), cert. denied, 537 U.S. 1004, 123 S.Ct. 515, 154 L.Ed.2d 401 (2002); United States v. Dunnock, 295 F.3d 431, 435 (4th Cir.), cert. denied, 537 U.S. 1037, 123 S.Ct. 570, 154 L.Ed.2d. 457 (2002); United States v. Remigio, 767 F.2d 730, 732-33 (10th Cir.), cert. denied, 474 U.S. 1009, 106 S.Ct. 535, 88 L.Ed.2d 465 (1985); United States v. Harwell, 426 F.Supp.2d 1189, 1201 (D.Kan.2006).