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NOT FOR PUBLICATION WITHOUT THE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

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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.

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 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

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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.

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