CARLOS MOORE VS. NEW JERSEY STATE PAROLE BOARD(NEW JERSEY STATE PAROLE BOARD)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1822-15T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
G.A.,
Defendant-Respondent.
Submitted January 19, 2017 – Decided April 20, 2017
Before Judges Alvarez and Accurso.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 14-04-0318.
Grace H. Park, Acting Union County Prosecutor,
attorney for appellant (Kimberly L. Donnelly,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
Triarsi, Betancourt, Wukovits & Dugan, LLC,
attorneys for respondent (Steven F. Wukovits,
of counsel and on the brief).
PER CURIAM
On leave granted, the State appeals a November 30, 2015 Law
Division order granting defendant G.A.'s motion to suppress
sixty-three baggies of cocaine, a defaced handgun, ammunition, and
other evidence seized incidental to the execution of a search
warrant. We now reverse.
The State presented only one witness, Elizabeth Police
Detective Jose Torres, the officer who obtained the warrant
authorizing the search of defendant's person and home. Defendant
testified, as did his seventy-seven-year-old grandmother in whose
home he lived. She required the services of a Creole interpreter.
On November 29, 2013, Torres, five detectives, and two
uniformed patrol officers executed the search warrant. The two
uniformed officers stopped defendant as he was driving out of the
apartment parking lot. Torres approached the car, showed defendant
the warrant, and explained it to him. The two officers "walked"
defendant towards his apartment, while Torres met the detectives
at the front door.
Once at the apartment door, Torres heard the officers towards
the front of the group knock and then insert defendant's key into
the lock. No one answered, and "[n]ext thing I know the door
opened." When Torres entered, he saw defendant's grandmother
standing nearby.
Because of his location in the group, Torres could not discern
if an officer opened the door by using defendant's key, or if it
was opened by defendant's grandmother. At headquarters, Torres
2 A-1822-15T2
presented defendant with an inventory detailing the items taken
from the apartment, which defendant signed.
Defendant's version of events differed in several important
respects. He denied having ever been shown or given a copy of the
warrant until he appeared in court on the charges. Defendant
claimed that while in his bedroom he was instructed to strip naked,
and that once naked, he was handcuffed in the kitchen until the
search was completed. He denied hearing the officers knock or
announce their presence, or seeing how the door was opened. When
he arrived at the top of the stairs leading to the apartment, he
saw the door was already ajar. Lastly, defendant denied that any
contraband was seized during the search.
Defendant's grandmother's testimony aligned with defendant's.
She claimed she was seated on the apartment sofa taking some
medication when she saw the door open. Police appeared in the
doorway, and when she asked "what's going on[,]" they responded
only that it was "police business." Defendant's grandmother denied
hearing any announcement or a knock before the police entry, and
said she became very "emotional."
Defendant's grandmother agreed that the officers stripped
defendant naked and confined him to the kitchen. She added that
when the officers left, they gave her defendant's keys and a piece
of paper.
3 A-1822-15T2
The judge who presided over the suppression hearing found
Torres credible, and defendant and his grandmother incredible.
She did so not only because of the testimony itself, but also
defendant's demeanor while testifying. The judge concluded that
either defendant's key was used to enter the apartment, "or that
the defendant's grandmother opened the door from inside, or perhaps
both were done at the same time."
After a detailed analysis of the knock-and-announce doctrine,
the judge also concluded that the police actions in this case were
objectively unreasonable because although the officers did knock
and pause, they "did not announce their presence before entering
the apartment." For that reason, the judge held that defendant
met his burden to establish the execution of the warrant was
unlawful——they "did not both knock and announce[.]" She opined
that their failure to announce their presence was unjustified and
unlawful.
As a result of the seizure, defendant was indicted for third-
degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one);
third-degree possession of cocaine with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count
three); fourth-degree prohibited weapons and devices, N.J.S.A.
2C:39-3(d) (count four); second-degree possession of a firearm in
4 A-1822-15T2
the course of committing a CDS offense, N.J.S.A. 2C:39-4.1(a)
(count five); and fourth-degree possession of a prohibited device,
N.J.S.A. 2C:39-3(f) (count six). On appeal, the State contends
that the evidence established the officers' entry into the
apartment was peaceable, reasonable, and the suppression of the
evidence error.
We review a motion judge's factual findings in a suppression
hearing with great deference. State v. Gonzales, 227 N.J. 77, 101
(2016). They are upheld "so long as those findings are supported
by sufficient credible evidence in the record." State v. Rockford,
213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1,
15 (2009)). The deference with which we review those factual
findings is "substantially influenced by [the motion judge's]
opportunity to hear and see the witnesses and to have the 'feel'
of the case, which a reviewing court cannot enjoy." State v.
Johnson, 42 N.J. 146, 161 (1964). We owe no deference to the
trial court's legal conclusions or interpretation of the legal
consequences that flow from established facts and our review in
that regard is de novo. State v. Watts, 223 N.J. 503, 516 (2015);
State v. Vargas, 213 N.J. 301, 327 (2013).
Once the validity of a search warrant has been established,
the burden then shifts to the defendant to establish some
illegality in the manner of execution. State v. Robinson, 200
5 A-1822-15T2
N.J. 1, 7-8 (2009) (citing State v. Valencia, 93 N.J. 126, 133
(1983)).
The purpose of the knock-and-announce rule is to reduce the
risk of violence to police and the public, to protect the public's
privacy by eliminating the risk of entry into the wrong premises,
and in order to prevent property damage. State v. Johnson, 168
N.J. 608, 616 (2001) (citation omitted). The overarching concern
in the manner of execution of any warrant, however, is whether
"the conduct was 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, 46-47 (2011) (quoting State v.
Bruzzese, 94 N.J. 210, 221 (1983), cert. denied, 465 U.S. 1030,
104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).
There are well-established exceptions to the knock-and-
announce rule. Police are relieved from the obligation if knocking
would be dangerous, result in the likely destruction of evidence,
or the flight of the suspect. State v. Fair, 45 N.J. 77, 86-87
(1965). Where a home is unoccupied, officers are relieved from
the obligation to knock and announce. State v. Bilancio, 318 N.J.
Super. 408, 417-18 (App. Div.), certif. denied, 160 N.J. 478
(1999). Where no privacy interest is implicated, the knock-and-
announce requirement is suspended. State v. Nunez, 333 N.J. Super.
42, 51-52 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001).
6 A-1822-15T2
It is possible in this case that the officers opened the door
with defendant's key, and did not announce their presence. If so,
that is an improper amendment to the conditions of the warrant set
by the neutral magistrate who issued it. Officers are expected
to comply with the terms of a warrant.
But in this case, the proofs do not establish that the
officers completely disregarded the knock-and-announce
requirement. Torres, who was found to be credible, testified that
he heard the officers closest to the door knock, although he did
not hear any announcement.
Moreover, Torres said he did not know if the door was opened
by defendant's grandmother or opened by the use of a key. Since
either could have occurred, given his vantage point some feet away
from the door, it seems to us the entry was objectively reasonable
after the knock without announcement, despite the possibility that
the officers may have gained entry by the use of a key. In no-
knock cases, entries with a key have been described by our Court
as a peaceable means of gaining a peaceable entry. Watts, supra,
223 N.J. at 517 ("Further, given that the police had a warrant for
a no-knock entry into defendant's residence, it was objectively
reasonable to secure the apartment keys from defendant to avoid
having to break down the door or alert other occupants in the
apartment."). Use of an occupant's key insures that the officers
7 A-1822-15T2
enter the correct premises, and avoids the necessity for
destruction of the door or other property as they gain entry. The
use of a key reduces the risk of violence to police and bystanders.
The officers could have been admitted by defendant's
grandmother before any announcement was possible, and from the
record it is clear that entry was quick. It is too rigid an
application of the doctrine to require the officers to announce
their presence if the door is immediately opened after the knock.
The identity of the members of the group, which included two
uniformed officers, was self-evident once the door opened.
Presumably, defendant's grandmother would have understood the word
"police," despite not being a native speaker.
This is not a case in which a defendant alleges that the
officers deliberately delayed their announcement in order to avoid
their legal obligations. Events here happened so quickly that
even defendant, while on the one hand saying he heard no knock or
announcement, acknowledged he did not actually know how the door
opened.
The State also argues that Rule 3:5-7(g) compels reversal:
"[i]n the absence of bad faith, no search or seizure made with a
search warrant shall be deemed unlawful because of technical
insufficiencies or irregularities in the warrant or in the papers
or proceedings to obtain it, or in its execution." That rule is
8 A-1822-15T2
premised on the general proposition courts should be "reluctant
to invalidate search warrants based on confusion over jurisdiction
or other issues that do not implicate probable cause or the
neutrality of the issuing judge." State v. Broom-Smith, 406 N.J.
Super. 228, 239 (App. Div. 2009), aff’d, 201 N.J. 229 (2010).
In examining the officers' conduct in light of the ambiguous
record, we cannot say the entry was unreasonable. It is uncertain
whether the door was opened as a result of the knock or with
defendant's key. We do not know the timing, but it may well have
made any announcement impractical. Each challenge to the manner
of execution of a search warrant, like any other challenge to a
search, requires a fact-sensitive analysis of the objective
reasonableness of the officers' conduct. Robinson, supra, 200
N.J. at 4.
Defendant bears the burden of establishing the wrongfulness
of the manner of execution of this warrant. State v. Sullivan,
169 N.J. 204, 211 (2001) (quoting Valencia, supra, 93 N.J. at 133)
(stating that "[a] search based on a properly obtained warrant is
presumed valid . . . [and] the defendant has the burden of proving
the invalidity of that search"). In this case, the burden has not
been met and the officers' failure to announce their presence does
not mandate suppression of the contraband. The entry was
peaceable, and the failure to announce may have been due to mere
9 A-1822-15T2
happenstance. Defendant has therefore not met his burden of
proving the invalidity of the search.
Reversed.
10 A-1822-15T2