"Cops need to get it right if they want the evidence to be admissible," a high court has just reaffirmed.
The New Jersey Appellate Division today tossed a five-year prison sentence with a five-year period of parole ineligibility because the cops forced entry too soon after knocking on the door.
In a published ruling, the Court established that the law enforcement officers violated constitutional rights by failing to wait a reasonable time after knocking and announcing their presence to forcibly enter the residence and that this violation of the constitutional requirement requires exclusion of the evidence seized during the subsequent search.
While at an Atlantic City home in which he occasionally stayed with his girlfriend, her child, her two juvenile brothers, and her mother, officers from the New Jersey Division of Criminal Justice and the New Jersey State Police executed a knock-and-announce search warrant against Tyshon M. Nieves. Following execution of this search warrant, the police seized heroin, marijuana, a handgun, a magazine with bullets, shell casings, and a hollow point bullet and arrested Nieves.
A grand jury returned an indictment charging Nieves with third-degree possession of heroin, third-degree distribution of heroin, second-degree distribution of heroin within 500 feet of the Atlantic City boardwalk, and second-degree possession of a firearm by a certain person prohibited from possessing weapons.
Nieves filed a motion to suppress the evidence seized from the residence, arguing the police did not wait a reasonable time prior to forcibly entering the premises after knocking and announcing their presence. The trial court denied the suppression motion.
At the motion to suppress hearing, Nieves's family members who were in the home at the time of the search warrant testified that the officers waited only six seconds after first knocking and announcing their presence before forcibly entering the home. Nieves claimed the purported six seconds the officers waited to enter the home following the first knock-and-announce was an unreasonably short period of time and therefore the ensuing search was unlawful.
New Jersey State Police Sergeant Bernard Tennant testified that he led a team of fifteen officers who were assigned to execute the search warrant. Sergeant Tennant understood the warrant required the officers first knock-and-announce before entering the home, and he explained he did so by knocking loudly on the home's front door and stating, "State Police, search warrant. State Police, search warrant."
Sergeant Tennant further explained the officers gained entry to the home by using a breaching element — a battering ram — to "knock-in" the home's front door. The fifteen officers entered the home after the door was breached. Sergeant Tennant did not know "how long a period of time" elapsed from when he first knocked and announced the officers' presence to the breach of the door with the battering ram. Sergeant Tennant explained he does not "think of time" while "out there." Sergeant Tennant acknowledged there is a "legal requirement" that officers "need to wait a period of time before they knock, announce, and then breach the door." He also said he had "no idea how long" after he first knocked and announced the officers' presence that they breached the front door with the battering ram. Sergeant Tennant was "one of the last" officers to enter the home after the door was breached. As a result, he did not have "any idea" who was in the home or what their circumstances were at the time of the officers' entry. He testified there were "people" in the residence, but he did not recall their ages or how many there were.
The Atlantic County trial court judge denied the motion to suppress evidence, agreeing with the Prosecutors that entry into the home was lawful because Sergeant Tennant knocked and announced the officers' presence three separate times prior to the entry. The court also determined that the home video footage rendered it "unclear" whether the entry occurred within six seconds of the first knock-and-announce as Nieves claimed, however, what is clear from the footage, is that the officers effectuated several rounds of knocks and several rounds of announcing, 'State Police! Search Warrant!' at a high volume." The court also noted the Prosecutor's argument that even if the officers did not wait a reasonable time to enter the home following the first knock-and-announce, suppression of the evidence was not the appropriate remedy.
The court also explained "the Fourth Amendment requires that the police must knock and announce on the door of the premises to be searched before using force to enter the location," and that, "under New Jersey law as well as federal law, the knock-and-announce law serves three purposes: to reduce the risk of violence to police and bystanders, to protect privacy by reducing the risk of entering the wrong premises, and to prevent property damages."
The court noted that determining whether the police waited a reasonable amount of time before entering the premises by force requires consideration of "common factors," including the suspect's criminal history, whether weapons were believed to be present, "the risk to officers' lives and safety," the property size, the presence of other people on the property, and the time of day the search was executed.
The court further observed that, "in narcotics cases, reasonableness in delay is not a function of merely 'how long it would take the resident to reach the door, but how long it would take to dispose of the suspected drugs.'"
The court explained it "examined the conduct of the officers in light of" what it determined was "the ambiguous record regarding the time that elapsed" and concluded "the conduct of the officers in the execution of the . . . warrant did not rise to a level of being a flagrant disregard for the knock-and-announce requirement." The court accordingly held "it cannot find" that the entry "was in fact unreasonable." Although it found it could not determine the amount of time that elapsed from the first knock-and-announce to the officers' forcible entry into the home, the court concluded it is "clear that there were several knocks, announcements, and testimony from occupants as to the entry being less than 'five minutes.'"
The court also found: police executed the warrant "within the bounds of the time frame" authorized by the search warrant itself, which "adds to the reasonableness of the knock-and-announce warrant's execution"; "this was a narcotics operation, and it is well-known that there is an increased possibility of destruction of evidence in such cases"; defendant's "criminal history includes . . . a conviction for failure to turn over controlled dangerous substances in 2013 and resisting arrest in 2014," raising questions as to his "ability . . . to abide by the law and the criminal justice system"; and the property was a duplex "on the smaller side, with the couch within two feet of the door."
The court therefore concluded that the officers acted reasonably in their execution of the warrant.
Nieves subsequently pleaded guilty to the possessory weapons offense in exchange for the State's recommendation of a five-year sentence with a five-year period of parole ineligibility and dismissal of the remaining charges.
At the same time, Nieves filed an appeal, arguing that the unreasonable execution of the search warrant requires suppression of the evidence found in the home.
In a published decision released today, Judges Accurso, Vernoia and Natali agreed.
Officers are constitutionally required to wait a reasonable time prior to forcibly entering a residence during the execution of a knock-and-announce warrant, therefore the amount of time the officers wait is an essential element of the analysis. See Hudson, 547 U.S. at 589.
Where a recording does not support more than one reasonable inference, and a trial court's "factual findings" based on its interpretation of a recording "are so clearly mistaken — so wide of the mark - that the interests of justice demand intervention," a reviewing court owes no deference to a trial court's fact findings drawn from the recording. Measured against that standard, our intervention is warranted here.
There is nothing ambiguous about the recording. Contrary to the trial court's finding, the recording's abrupt end does not obscure what clearly precedes it. The recording shows a number of individuals - the officers - appearing as shadowlike figures in the early morning light and approaching the porch of the residence. Once on the porch, the officers quickly and repeatedly knock and announce their presence in three rapid and uninterrupted sequences, during the last of which an object is hoisted above the waist level of the officers on the porch and thrust forward toward the residence. In that instant, a loud bang is heard, the door to the residence opens, and light from the interior illuminates the porch as the officers first enter the home.
Although the recording then abruptly ends, it nonetheless captures the events essential to a determination of defendant's challenge to the validity of the execution of the search warrant. Contrary to the trial court's finding, the recording allows for a precise calculation of the officers' waiting time and, concomitantly, whether the time was reasonable based on the circumstances presented.
Defendant argued before the trial court, and argues on appeal, the officers waited six seconds to forcibly enter the premises after knocking and announcing their presence. Our review of the recording causes us to conclude the officers waited even less time than that. It appears defendant measured the time from the moment the officers first knocked on the door to the moment the door was forced open by the battering ram described by Sergeant Tennant during his testimony. In our view, defendant's measure of the time is incorrect because it fails to account for the requirement that officers wait a reasonable time between the announcement and their forced entry. As such, the officers' wait time must be measured from the completion of the first knock-and-announce to the moment the officers forcibly breached the door with the battering ram.
Based on our review of the recording, the elapsed time between those two events is less than five seconds.
Since there is not more than one reasonable inference that can be drawn from the recording, the court's conclusion the recording presented "ambiguity" regarding the time the officers waited to forcibly breach the front door after first knocking-and-announcing is unsupported by substantial credible evidence because it was not reached "by drawing permissible inferences" from the recording. The critical point is the recording does not "abruptly end" until after it shows the officers breaking down the door.
The court's erroneous determination that it could not properly determine the time the officers waited prior to forcibly knocking in the front door to the residence mandates a rejection of the court's analysis and legal conclusion the seized evidence should not be suppressed. It further warrants our review of the validity of the search based on the record presented.
There is no evidence defendant had a violent criminal history supporting a finding it was reasonable for the officers to have waited a shorter, as opposed to a longer, period of time before forcibly entering the premises. The search warrant did not disclose defendant had any prior violent crime history. The affidavit also did not include any information, from either a confidential informant or otherwise, suggesting defendant might possess weapons or that defendant posed any risk to the officers' lives and safety.
In its denial of the suppression motion, the court relied on defendant's prior conviction for a disorderly persons offense for failing to turn over a controlled dangerous substance in part to support its finding the officers waited a reasonable amount of time prior to forcibly entering the residence. The elements of the offense, however, do not include any defiance of authority, refusal to comply with an officer's order, the destruction of any evidence, or violence supporting a finding that officers executing a search warrant need be concerned about a threat to their safety or the destruction of evidence. We do not minimize the offense. We find only it is not of such a nature that it objectively created any urgency for the officers in forcibly entering the residence either to protect the officers' safety or to prevent destruction of evidence.
The court correctly cited defendant's prior conviction for resisting arrest as a basis supporting a heightened concern defendant might take action to resist the officers once they entered the residence. However, the search warrant affidavit did not indicate whether defendant was convicted of fourth-degree resisting by flight, or third-degree resisting arrest by either using or threatening the use of physical force or violence. Thus, that the search warrant affidavit showed defendant had a conviction for "resisting arrest" did not establish an objective basis for the officers to conclude defendant posed a risk of violence during execution of the warrant.
The court also took notice that the record indicated that the home was a "duplex" (which is larger than a small apartment). Thus, the officers knew it would take the occupants longer to take any action - either to walk to the door or destroy evidence - than if the warrant was executed when the occupants were awake, yet the officers waited less than five seconds to forcibly breach the front door.
The officers had reason to believe "persons other than defendant resided" at the residence, as the search warrant affidavit showed defendant did not list the residence as his home address in his filings with the New Jersey Motor Vehicle Commission. The officers therefore had reason to know: the residence was not defendant's home; he lived elsewhere; and others inhabited the residence to be searched. They also had no information that those other people who were expected to be present were involved in the crime.
In denying defendant's motion, the trial court also relied on the notion that because the search warrant affidavit showed defendant was involved in the distribution of illegal narcotics, it was reasonable for the officers to move more quickly to enter the residence to prevent the destruction of evidence. The court did not, however, consider that the search warrant affidavit did not identify the quantity of drugs allegedly distributed by defendant and therefore offered no objective basis for the officers to determine or conclude defendant possessed a small quantity of controlled dangerous substances that might be amenable to quick disposal or destruction if he was awakened at 5:00 a.m.
Moreover, there is no other information in the search warrant affidavit establishing defendant presented a particularized risk of destroying evidence.
In sum, we are convinced any reasoned analysis of the pertinent factors requires a finding the officers did not wait a reasonable amount of time — less than five seconds — before forcibly entering the premises. To the extent the reasonableness of the wait time is measured against whether the occupants of the residence had time to get to the door or to destroy evidence, the recording provides vivid and compelling evidence none of the occupants had the opportunity to do either during the less-than-five seconds the officers waited before knocking in the front door at 5:00 a.m. The knock-and-announce and forcible breach of the door shown in the recording occurred so quickly and with such fluidity that the occupants of the house were effectively denied the requisite pause and reasonable wait period to which they are constitutionally entitled prior to the officers' forcible entry.
We do not find there could never be circumstances under which a waiting time of five seconds or less may be reasonable. We determine only that because the pertinent factors weigh strongly against the abbreviated wait-time here, and the State offers no objective facts known to the officers demonstrating any urgency presented by the execution of the warrant, the less-than-five-second period the officers waited here constitutes an unreasonable, and unconstitutional, execution of a knock-and-announce warrant.
To hold otherwise under the circumstances presented - where the purported pause following the officers' first knock-and-announce is tantamount to no pause at all - would impermissibly render the constitutional requirement that officers wait a reasonable time prior to making a forcible entry during the execution of a knock-and-announce search warrant a meaningless nullity.
We therefore conclude that the amount of time the officers waited after knocking and announcing before breaching the front door was unreasonable and violated defendant's constitutional right to be free from unreasonable searches and seizures.
This ruling is published, which means that this ruling can be cited in future litigation. This ruling specifically establishes that; a) the law enforcement officers violated constitutional rights by failing to wait a reasonable time after knocking and announcing their presence to forcibly enter the residence; b) this violation of the constitutional requirement does require exclusion of the evidence seized during the subsequent search.
The winning attorney is Assistant Deputy Public Defender Margaret Ruth McLane.
This is yet again a case where a higher court has declared that cops need to get it right if they want the evidence to be admissible.
As recently reported here on FAA News, the New Jersey Appellate Division tossed out an indictment for unlawful possession of a weapon, and possession of cocaine, a controlled dangerous substance - all because the investigatory stop was based on a vehicle parked in two spaces in a Turnpike rest area, which the court found is not actually illegal, and because observing someone using rolling papers, an item legal to possess and to use, does not provide police with reasonable and particularized suspicion that a crime is being committed.
As reported here on FAA News just one week prior, the Appellate Division tossed a gun possession conviction, saying that the "stop and frisk" was based solely on an anonymous tip and the defendant's "unusual" body movements, which were simply insufficient for "a reasonable suspicion," and therefore the search was warrantless.
As reported here on FAA News, last month, the New Jersey Supreme Court tossed a conviction which was based on a State Trooper who smelled marijuana in the passenger compartment of the car. After his initial search of the passenger compartment of the car yielded no results, he proceeded to search the engine compartment and trunk, where he ultimately found weapons. The court ruled that searching the trunk in this case crossed the boundaries of the warrant exception and therefore the search was with warrantless.
On the very same day, the Appellate Division affirmed a trial court decision suppressing the seizure of multiple guns, including automatic weapons, over 100,000 rounds of ammunition, and illegal drugs from a home and garage - all because officers failed to first obtain a warrant, and the circumstances did not satisfy any warrant exception cases.
As previously reported here on FAA News, also last month, the Appellate Division tossed out a drug possession conviction, finding that the law enforcement officers failed to first obtain a search warrant and their Prosecutor failed to prove there were "exigent circumstances" that made it impracticable for them to obtain a warrant.
As previously reported here on FAA News, the New Jersey Supreme Court tossed a five-year incarceration term of Anthony Miranda.
While Miranda was placed under arrest and transported to jail, police searched his property without a warrant.
"Police can only search someone’s property or belongings without a warrant in exigent circumstances, including if a suspect is likely to flee, hurt someone, or destroy evidence and if police are in “hot pursuit” of a suspect during the time it would take to secure a warrant," wrote Justice Anne Patterson.
As previously reported here on FAA News, back in March 2023, the Supreme Court decreed that police stopping motorists to investigate crimes cannot search their cars without a warrant unless the circumstances that sparked their suspicion were “unforeseeable and spontaneous.”
Additionally, in January 2022, the court ruled that police who arrest people outside their homes can’t then enter and search their homes without a warrant unless there’s a clear potential of life-threatening danger to officers on the scene.
These case rulings may be very applicable to a currently pending Lakewood matter.
As previously reported here on FAA News, shocking footage shows Lakewood Police Detective Sergeant Tyler Distefano violating a Lakewood resident's constitutional rights numerous times - at 2am!
Upon arrival at the residence, just before 2am on a Saturday night, officers shone flashlights into the vehicle in the driveway and decided that they had sufficiently seen "evidence of a crime" inside the vehicle.
The resident of the home called out over the doorbell "can you get off my property?," to which they responded "no sir." The resident pressed on, asking, "do you have a warrant to be here?" The officers shocking responded "it doesn't work that way. I don't need a warrant to be here!"
They used their "evidence of a crime" - which they searched with no warrant - as a basis to then arrest the resident.
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