NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1577-12T2
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
May 13, 2014 v. APPELLATE DIVISION CHAD BIVINS,
Defendant-Appellant. ______________________________
Argued January 8, 2014
Before Judges Sapp-Peterson and Lihotz.
Telephonically reargued March 27, 2014 - Decided May 13, 2014
Before Judges Sapp-Peterson, Lihotz and Maven.
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).
The opinion of the court was delivered by
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 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 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
(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
2 A-1577-12T2 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 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,
3 A-1577-12T2 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 notification that
somebody[1] was leaving the residence and they were approaching, I
believe it was a Pontiac, and at that time somebody called out
the description of the Pontiac[.]"
When Trooper Moore received the alert, he had not yet
arrived at his assigned post, but as he pulled up, he noticed
the "description of the vehicle they were talking about was
sitting at the corner of Park and Princess[,] which is where
[he] was assigned to go." He "observed the grey Pontiac sitting
there" and "believe[d] two individuals were in the car." He
testified that "we got them out, we checked them, and then I
took them over to the case agent and turned them over to them."
In response to a question from the motion judge whether he found
1 The record is not clear if there was one or more than one person observed leaving the residence.
4 A-1577-12T2 anything on the two men, he stated that he believed "there was
some crack on both individuals . . . approximately thirty
[bags]" on each man. He described the location of the vehicle,
in relation to the residence being searched, as five or six
houses away, on the same side of the street. Finally, in
response to the court's question whether he observed the two men
"run into the vehicle," the trooper said: "No[,] I didn't. By
the time I came in contact with them they were already where
they were[.]"
The court denied the motion, finding that the search was
within the "rubric" of the search warrant. The present appeal
followed. Defendant raises a single point for our
consideration:
TROOPER MOORE DID NOT HAVE PROBABLE CAUSE TO PULL MR. BIVINS AND MR. JORDAN FROM THE CAR AND SEARCH THEM BASED ONLY ON INFORMATION THAT "TWO GUYS" HAD LEFT A HOUSE WHICH POLICE WERE SEARCHING PURSUANT TO A WARRANT, AND THAT THE GUYS WERE "APPROACHING" A GREY PONTIAC. ACCORDINGLY, THE FRUITS OF THE SEARCH MUST BE SUPPRESSED.
II.
When evaluating the constitutionality of police conduct in
executing a search warrant, "[i]t 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 [or persons],
5 A-1577-12T2 appropriate in light of the scope of the warrant." State v.
Reldan, 100 N.J. 187, 195 (1985) (citing Harris v. United
States, 331 U.S. 145, 152, 67 S. Ct. 1098, 1102, 91 L. Ed. 1399,
1407 (1947)). "An analysis of the reasonableness of the methods
used in a search, as well as the areas searched, should focus
upon whether the search in its totality was consistent with the
object of the search." Ibid.
That analysis begins first with an examination of the terms
of the search warrant, which must be strictly respected.
Rockford, supra, 213 N.J. at 441. Thereafter, the analysis
focuses upon police conduct in accomplishing the object of the
search. State v. Rodriguez, 399 N.J. Super. 192, 200 (App. Div.
2008). Thus, in State v. Carlino, 373 N.J. Super. 377 (App.
Div. 2004), certif. denied, 182 N.J. 430 (2005), we found the
warrant was strictly respected and the officers' conduct
objectively reasonable. Id. at 396. There, a warrant issued to
search a suspected drug dealer's residence and Lexus authorized
the officers to search "any and all persons arriving at,
departing from and located therein reasonably believed to be
associated with the investigation." Id. at 382 (internal
quotation marks omitted). Plainclothes officers searching the
garage and Lexus noticed an individual approach the residence
and, without knocking or ringing the bell, open the door and
6 A-1577-12T2 walk into the residence. Id. at 383. One of the officers
followed the individual into the house, and the individual asked
the whereabouts of the suspected drug dealer. Ibid. When the
individual realized, however, that he was speaking to a police
officer, he became visibly nervous and started clutching even
harder a fanny bag he was holding in his hand. Ibid. In
finding the seizure of the fanny bag justified, we did so based
upon a number of factors, including that the individual appeared
at the house after midnight, walked directly into the house
without knocking, and became nervous and started to firmly
clutch the bag he was holding once he realized he was speaking
to a police officer, whose police badge was visible. Id. at
394-95.
More importantly, we concluded the "[d]efendant
mischaracterize[d] the scope and meaning of the search warrant."
Id. at 392. We noted:
The search warrant did not authorize a search of "all persons present." Rather, the warrant provided for the police to determine on-the-spot whether or not a person's presence at the time and given the circumstances establishes a reasonable belief that the individual is involved in criminal activity. The search warrant was issued for a home allegedly used for the continued distribution of cocaine and other narcotics. Defendant's presence was more than just a mere coincidence. Defendant appeared at the home at midnight when a merely social visit would be unlikely.
7 A-1577-12T2 Defendant arrived at the residence and walked directly inside. Under these facts, the police had probable cause to search defendant upon entering the home after midnight.
[Id. at 392-93.]
Our reasoning in Carlino was consistent with the United
States Supreme Court's decision in Michigan v. Summers, 452 U.S.
692, 711, 101 S. Ct. 2587, 2598, 69 L. Ed. 2d 340, 355 (1981),
where the Court held that a "warrant to search for contraband
founded on probable cause implicitly carries with it the limited
authority to detain the occupants of the premises while a proper
search is conducted." Thus, unless the search warrant
authorizes the search of particular persons, the issuance of a
search warrant does not necessarily authorize the search of
persons found on or near the premises during the execution of
the warrant; rather, police may detain such persons while
evidence is sought. Ibid. In other words, beyond detaining
persons present during the execution of the search warrant, the
search of persons present during the search requires that police
establish more than their mere presence. See, e.g., Ybarra v.
Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342, 62 L. Ed. 2d,
238, 245 (1970) (stating "a person's mere propinquity to others
independently suspected of criminal activity does not, without
8 A-1577-12T2 more, give rise to probable cause to search that person"). This
point was most recently highlighted in Bailey.
In Bailey, the Court clarified its decision in Summers by
holding that the limited authority to detain an occupant of a
premises being searched is spatially constrained. Bailey,
supra, ___ U.S. at ___, 133 S. Ct. at 1042, 185 L. Ed. 2d at 33.
The Court stated: "Once an individual has left the immediate
vicinity of a premises to be searched, . . . detentions must be
justified by some other rationale." Id. at ___, 133 S. Ct. at
1043, 185 L. Ed. 2d at 34.
There, police observed the petitioner and another
individual leaving a gated area above a basement apartment for
which police had obtained a search warrant to search for a
weapon previously observed by a confidential informant during a
drug purchase. Id. at ___, 133 S. Ct. at 1036, 185 L. Ed. 2d at
27. Both men matched the general description of the individual
from whom the informant alleged he had purchased drugs. Ibid.
The two men entered a vehicle, and police followed the vehicle
for approximately one mile before pulling it over. Ibid.
During questioning, the petitioner initially told police he had
been coming from his apartment. Ibid. When he was told police
were executing a search warrant at that apartment, the
petitioner denied living there. Ibid. He later moved to
9 A-1577-12T2 suppress the statement he made to police and a key to the
apartment police seized from him. Ibid.
The District Court denied the motion, concluding the
petitioner's detention was justified under Summers. Id. at ___,
133 S. Ct. at 1037, 185 L. Ed. 2d at 28. The Second Circuit
affirmed and the Supreme Court reversed. Ibid. The Court
discussed the three law enforcement interests that justify the
detention of an occupant who is on the premises during the
execution of a search warrant: officer safety, facilitating the
completion of the search, and preventing flight. Id. at ___,
133 S. Ct. at 1038, 185 L. Ed. 2d at 29. The Court concluded
none of those interests were impacted by petitioner's detention.
Id. at ___, 133 S. Ct. at 1042, 185 L. Ed. 2d at 34.
In addressing the first interest, officer safety, the Court
noted
"the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence," and "[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation."
[Id. at ___, 133 S. Ct. at 1038, 185 L. Ed. 2d at 29 (quoting Summers, supra, 452 U.S. at 702-03, 101 S. Ct. at 2594, 69 L. Ed. 2d at 349-50).]
10 A-1577-12T2 Turning to the second interest, the Court stated that "'the
orderly completion of the search may be facilitated if the
occupants of the premises are present.'" Id. at ___, 133 S. Ct.
at 1040, 185 L. Ed. 2d at 31 (quoting Summers, supra, 452 U.S.
at 703, 101 S. Ct. at 2595, 69 L. Ed. 2d at 350). Finally, as
to the third law enforcement interest, "preventing flight in the
event that incriminating evidence is found[,]" the Court
explained this interest must be spatially constrained. Id. at
___, 133 S. Ct. at 1040, 185 L. Ed. 2d at 32 (quoting Summers,
supra, 452 U.S. at 702, 101 S. Ct. at 2594, 69 L. Ed. 2d at 349-
50). The Court reasoned:
A spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for detentions incident to the execution of a search warrant. . . . Limiting the rule in Summers to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification. Once an occupant is beyond the immediate vicinity of the premises to be searched, the search-related law enforcement interests are diminished and the intrusiveness of the detention is more severe.
. . . .
. . . A suspect's particular actions in leaving the scene, including whether he appears to be armed or fleeing with the evidence sought, and any information the officers acquire from those who are
11 A-1577-12T2 conducting the search, including information that incriminating evidence has been discovered, will bear, of course, on the lawfulness of a later stop or detention. For example, had the search team radioed Detectives Sneider and Gorbecki about the gun and drugs discovered in the Lake Drive apartment as the officers stopped Bailey and Middleton, this may have provided them with probable cause for an arrest.
[Id. at ___, 133 S. Ct. at 1042, 185 L. Ed. 2d at 33-34.]
Applying the Court's reasoning in Bailey to the present
matter compels reversal. Trooper Moore did not witness the two
men fleeing from the residence or entering the vehicle, in which
they were seated, parked five or six houses away from the
residence being searched. As noted earlier, it was undisputed
the affidavit submitted in support of the search warrant
application and the search warrant issued did not identify
defendant, Jordan, or the grey Pontiac as persons or property to
be searched. Additionally, the information conveyed by the
search team to Trooper Moore did not report that the search team
had found incriminating evidence related to defendant or that
the individual(s) leaving the residence were suspected of being
armed or possessing incriminating evidence. While defendant was
in closer proximity to the residence being searched than the
petitioner in Bailey, who was one mile away from the scene of
the search, he was spatially still "beyond the immediate
12 A-1577-12T2 vicinity of the premises to be searched." Bailey, supra, ___
U.S. at ___, 133 S. Ct. at 1041, 185 L. Ed. 2d at 32.
Moreover, at the point when defendant and Jordan were
removed from the Pontiac and searched, there was no legitimate
law enforcement interest at stake to justify Trooper Moore's
actions. Id. at ___, 133 S. Ct. at 1038, 185 L. Ed. 2d at 29.
Rather, dispatch had merely conveyed that "somebody was leaving
the residence and they were approaching . . . a Pontiac,"
described as grey. Based upon this information, it was not
clear whether the person(s) seen approaching the grey Pontiac
actually entered it. Further, positioned six or seven blocks
away at the time he received this information, and without other
identifying information, Trooper Moore could not confirm that
defendant and Jordan were the same person(s) observed leaving
the premises and approaching the grey Pontiac.
The State urges that because defendant does not challenge
the validity of the search warrant, "[p]robable cause is thus no
longer in doubt[.]" Since, however, we conclude the search of
defendant was "beyond the immediate vicinity of the premises
being searched," probable cause to search defendant cannot rest
upon the search warrant. Id. at ___, 133 S. Ct. at 1043, 185 L.
Ed. 2d at 34. Rather, justification for the search can only be
upheld by application of traditional standards by which such
13 A-1577-12T2 intrusions into a person's liberty are governed. Id. at ___,
133 S. Ct. at 1042, 185 L. Ed. 2d at 33.
As our Court has often stated, probable cause to search an
individual "is not susceptible of precise definition." State v.
Moore, 181 N.J. 40, 45 (2004). Rather, it is "'a fluid concept
— turning on the assessment of probabilities in particular
factual contexts — not readily, or even usefully, reduced to a
neat set of legal rules.'" State v. Basil, 202 N.J. 570, 585
(2010) (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct.
2317, 2329, 76 L. Ed. 2d 527, 544 (1983)). Probable cause
entails a "'practical, nontechnical conception' addressing 'the
factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.'" Ibid.
(quoting Gates, supra, 462 U.S. at 231, 103 S. Ct. at 2328, 76
L. Ed. 2d at 544). Thus, courts must determine whether the
State has met its burden in establishing that the warrantless
search of an individual was justified by considering the
totality-of-the-circumstances test set forth in Gates, supra,
462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548. The
test is fact specific to each case and
requires the court to make a practical, common sense determination whether, given all of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The factors to be considered in applying
14 A-1577-12T2 that test include a police officer's common and specialized experience, and evidence concerning the high-crime reputation of an area[.] Although several factors considered in isolation may not be enough, cumulatively these pieces of information may become sufficient to demonstrate probable cause.
[Moore, supra, 181 N.J. at 46 (citations and internal quotation marks omitted).]
During oral argument, the motion judge noted that absent
the search warrant, the search "may have been an invalid arrest
because [] defendants didn't do anything unlawful even assuming
they ran from the house." Trooper Moore testified he had no
independent involvement in the investigation, his role was
limited to securing the "crime scene," and he had not observed
defendant and Jordan leaving the premises or entering the car.
Further, he did not testify the two men appeared nervous or made
any furtive movements once he approached them seated in the
vehicle. See State v. Jones, 287 N.J. Super. 478, 484 (App.
Div. 1996) (upholding the search of a canister in the
defendant's car where the defendant made furtive gestures,
appeared nervous, exhibited bloodshot and dilated eyes, and was
unable to produce driving credentials). Additionally, there is
no indication that either defendant or Jordan were aware the
premises were being searched. Even assuming that defendant,
like the petitioner in Bailey, had just left the premises, this
was insufficient in this instance "to justify an expansion of
15 A-1577-12T2 the rule in Summers" to permit his seizure and the search that
followed. Bailey, supra, ___ U.S. at ___, 133 S. Ct. at 1041,
185 L. Ed. 2d at 32.
To uphold defendant's seizure and the subsequent search
under these factual circumstances "would give officers too much
discretion. The categorical authority to detain incident to the
execution of a search warrant must be limited to the immediate
vicinity of the premises to be searched." Ibid. Parked five or
six houses away from the premises being searched, arguably may
have placed defendant within the line of sight of the premises
and justified his detention. Id. at ___, 133 S. Ct. at 1042,
185 L. Ed. 2d at 33. Trooper Moore, however, did more than
simply detain defendant. He seized him and immediately searched
him. Neither defendant's nor Jordan's conduct or the
information Trooper Moore possessed supported defendant's
seizure and the search that followed. Id. at ___, 133 S. Ct. at
1041, 185 L. Ed. 2d at 32 (noting that "[t]he interest in
preventing escape from police cannot extend this far without
undermining the usual rules for arrest based on probable cause
or a brief stop for questioning under standards derived from
Terry2").
2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
16 A-1577-12T2 Finally, we reject the State's argument that Trooper
Moore's conduct was objectively reasonable under State v. Handy,
206 N.J. 39, 54 (2011), and State v. Green, 318 N.J. Super. 346
(App. Div. 1999). The State urges there is ample support in the
record to apply the proposition that a reasonable, but mistaken
belief leading to an arrest does not render Trooper Moore's
actions constitutionally deficient to warrant suppression of the
evidence seized.3 Neither decision supports the State's
position.
In Handy, the Court acknowledged that "'room must be
allowed for some mistakes by police.'" Handy, supra, 206 N.J.
at 54 (quoting Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.
Ct. 2793, 2800, 111 L. Ed. 2d 148, 159–60 (1990)). The Court
qualified this principle by stating that police must have acted
reasonably. Ibid. The Court found the police dispatcher, who
the Court agreed the Appellate Division appropriately
characterized as the "crucial link between the officer in the
field and police headquarters," acted unreasonably because she
was aware of discrepancies between the warrant and the
3 Following the first oral argument, the State sought leave to file a supplemental letter brief, which we denied. At oral argument, the State nonetheless advanced the "objectively reasonable belief" position and we therefore, sua sponte, vacate the order denying leave to file the supplemental brief and have considered it.
17 A-1577-12T2 information provided by the officer but took no further steps.
Id. at 53. The Court affirmed the Appellate Division judgment
reversing the trial court order denying the suppression motion.
Id. at 54. Here, based upon the limited information Trooper
Moore received, it may have been reasonable to detain defendant,
but it was not objectively reasonable to seize him and conduct
the full search that followed.
In Green, investigators from the Camden County Sheriff's
Department had an arrest warrant for a fugitive named Corey
Lovett. Green, supra, 318 N.J. Super. at 349. The defendant's
appearance closely matched the description of the fugitive
described in the warrant and just before the arrest, the
defendant was standing directly in front of the residence where
the fugitive reportedly resided. Ibid. When the investigators
identified themselves, the defendant fled into the home, where
he was pursued and arrested. Ibid. Once at the police station,
the investigators learned that defendant was not the fugitive.
Ibid. The defendant moved to suppress drugs he discarded while
fleeing from the investigators. Finding striking similarities
between the defendant's appearance and that of Lovett, as well
as considering the defendant's conduct when the investigators
identified themselves, the court found that the investigators
18 A-1577-12T2 acted reasonably and denied defendant's motion. On appeal, we
agreed and affirmed. Id. at 349-50.
In contrast, Trooper Moore knew only that somebody or two
men had left the premises and they were walking towards a grey
Pontiac. He was not told these persons had fled the premises
with evidence sought in the search warrant. Bailey, supra, ___
U.S. at ___, 133 S. Ct. at 1042, 185 L. Ed. 2d at 33. Nor did
the two men act suspiciously or nervously when the trooper
approached the grey Pontiac. Carlino, supra, 373 N.J. Super. at
383. Under these circumstances Trooper Moore's conduct was not
objectively reasonable justifying defendant's seizure and the
subsequent search.
Reversed and remanded for further proceedings. We do not
retain jurisdiction.
19 A-1577-12T2