NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3379-21
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION August 9, 2023 v. APPELLATE DIVISION
TYSHON M. NIEVES, a/k/a TYSHON NIEVES,
Defendant-Appellant. _________________________
Argued May 3, 2023 – Decided August 9, 2023
Before Judges Accurso, Vernoia and Natali.1
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 21-09- 1334.
Margaret Ruth McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret Ruth McLane, of counsel and on the brief).
Boris Moczula, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Boris Moczula, of counsel and on the brief). 1 Judge Natali did not participate in oral argument but joins in the opinion with the consent of counsel. R. 2:13-2(b). The opinion of the court was delivered by
VERNOIA, J.A.D.
In this matter we determine whether law enforcement officers executing
a knock-and-announce search warrant on a residence in the early morning
hours violated defendant Tyshon M. Nieves's constitutional rights by failing to
wait a reasonable time after knocking and announcing their presence to
forcibly enter the residence. We also consider whether a violation of the
constitutional requirement that officers executing a knock-and-announce
search warrant wait a reasonable time after knocking and announcing their
presence requires exclusion of the evidence seized during the subsequent
search. Based on our review of the record, we determine the law enforcement
officers did not wait a reasonable time after knocking and announcing their
presence to forcibly enter the residence, and, as a result, the evidence seized
during the subsequent search should have been suppressed.
I.
Police arrested defendant following the execution of a knock-and-
announce search warrant and seizure of heroin and a handgun at an Atlantic
City home in which he occasionally stayed with his girlfriend, her child, her
A-3379-21 2 two juvenile brothers, and her mother. 2 A grand jury returned an indictment
charging defendant 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.
Defendant 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, and defendant later 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. Following the court's imposition of the
recommended sentence, defendant filed this appeal challenging the court's
denial of the suppression motion.
The New Jersey Division of Criminal Justice and the New Jersey State
Police obtained a warrant to search the Atlantic City residence, which the
warrant affidavit described as a "two story duplex" with a front and rear door
and a detached garage with a side door and a "garage door . . . ." The warrant
2 During the search, police also seized marijuana, a magazine with bullets, shell casings, and a hollow point bullet. The indictment against defendant does not include any charges related to those items.
A-3379-21 3 authorized execution of the search warrant "between the hours of 5:00 a.m. and
11:59 p.m. by first knocking and announcing [the officers'] presence" and the
seizure of items concerning controlled-dangerous-substance-related offenses.
At the hearing on defendant's motion to suppress the seized evidence,
New Jersey State Police Sergeant Bernard Tennant testified he was not
involved in the investigation that resulted in the application for, and issuance
of, the search warrant. Instead, Sergeant Tennant led a team of fifteen of ficers
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]
A-3379-21 4 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.
Defendant called Lavida Jones as a witness at the suppression hearing .3
Lavida Jones testified she rented the residence police searched and resided
there with her fourteen-year-old and seven-year-old sons, her two-year-old
granddaughter, and her daughter, Kanaya Jones. Lavida Jones explained
defendant is Kanaya Jones's boyfriend. Lavida Jones testified defendant did
not reside at the home but would "come[] over sometimes," and he was present
at her home when the police executed the search warrant.
Lavida Jones testified the officers executed the search warrant "[a]t
about five in the morning . . . ." At that time, she was asleep with her seven-
year-old son on a sectional couch located about two feet from the front door.
3 In its written decision on defendant's motion, the trial court refers to Lavida Jones as Lavedia Jones. We use the former name because it is the name employed to identify the witness in the transcript of the motion hearing.
A-3379-21 5 She first heard a "bang[,]" then heard the officers "announce[,]" and, "by the
time she jumped up and got to the door[,]" the door was "already off the
hinges." Lavida Jones explained she did not have pants on, and the officers
who entered would not let her put clothes on. When asked how much time
passed between her hearing the officers' first announcement and their forcible
entry into her home, Lavida Jones stated only that "it wasn't even five
minutes . . . ."
Lavida Jones identified a video and audio recording she obtained from a
security camera from an adjacent home owned by her landlord. She testified
the recording shows the officers knocking and announcing themselves until
they knocked her "door down." The recording was admitted in evidence at the
suppression hearing.
Kanaya Jones also testified. She explained defendant is her boyfriend
and she and defendant shared a bedroom at the rear of the home's second floor
when the officers executed the search warrant. She heard a bang at about 5:00
a.m. and then next heard officers rushing into the home and up the stairs. She
testified the officers then broke through her locked bedroom door. The
officers immediately took defendant from her bed, removed him from the
room, and told her to put pants on before also removing her from the room.
Kanaya Jones testified that from her bedroom's location at the rear of the
A-3379-21 6 home's second floor, she could "[p]robably not" hear anyone speaking from
outside the front door.
The court issued a written decision on defendant's motion. The court
noted defendant's argument the search was unlawful because the officers
waited only six seconds after first knocking and announcing their presence
before forcibly entering the home. Defendant 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.
The court explained the State argued 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 the evidence
rendered it "unclear" whether the entry occurred within six seconds of the first
knock-and-announce as defendant claimed. The court also noted the State'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 made credibility determinations, finding the three witnesses —
Sergeant Tennant, Lavida Jones, and Kanaya Jones — "testified concisely and
A-3379-21 7 believably." The court further explained it reviewed the video recording and
determined it showed the following:
[T]he executing officers knock[ed] six bangs on the front door. The officer then shout[ed], "State Police! Search Warrant." The officer then immediately follow[ed] up with knocking on the door with five more bangs, and again repeat[ed], "State Police! Search Warrant!" The officer then knock[ed] on the door with four more bangs. Finally, the officer announc[ed] a third time, "State Police! Search Warrant!" At that point, what sound[ed] like a K-9 dog can be heard barking and the video footage ends.
Based on its review of the recording, the court determined it could not
"ascertain . . . the exact time between the initial knocking and announcing of
the police's presence and their entry into the home." The court noted
defendant claimed the time between the first knock-and-announce and entry
into the home was six seconds. Based on its review of the recording, however,
the court found only that there "appears to be eight seconds from the first
knock until the video abruptly ends." According to the court, "[w]hat is clear
from the footage, however, 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 explained "[t]he 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, "[u]nder New Jersey as well
A-3379-21 8 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. Quoting Hudson v. Michigan, 547 U.S. 586, 590 (2006),
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 "examin[ed] the conduct of the officers in light
of" what it determined was "the ambiguous record regarding the time that
elapsed" and concluded "[t]he 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
A-3379-21 9 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"; "[t]his 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."4 The court relied on those findings as further support for its
conclusion the officers acted reasonably in their execution of the warrant.
4 Although unnecessary to its disposition of the suppression motion, the court further determined that, even if the officers acted unreasonably in their execution of the search warrant, suppression of the evidence was not warranted under the exclusionary rule. In support of its decision, the court cited Hudson for the proposition that "the exclusionary rule is not the appropriate remedy for a violation of the knock-and-announce requirement." We note only that in State v. Caronna, we rejected Hudson's application under the New Jersey Constitution and determined a violation of a search warrant's knock-and- announce requirement during a residential search requires the suppression of evidence under our State constitutional prohibition against unreasonable searches and seizures. 469 N.J. Super. 462, 494-96 (App. Div. 2021).
A-3379-21 10 The court entered an order denying defendant's suppression motion. As
noted, defendant later pleaded guilty to the possessory weapons charge and
was sentenced. This appeal, which is limited to a challenge to the court's order
denying the suppression motion, followed.
Defendant presents the following argument for our consideration:
POINT I
THE UNREASONABLE EXECUTION OF THE SEARCH WARRANT REQUIRES SUPPRESSION OF THE EVIDENCE FOUND IN THE HOME.
II.
Our review of a trial court's decision on a motion to suppress is limited.
State v. Erazo, ___ N.J. ___, ___ (2023) (slip op. at 12); State v. Ahmad, 246
N.J. 592, 609 (2021). We "must uphold the factual findings underlying the
trial court's decision" on a motion to suppress "as long as those findings are
supported by sufficient credible evidence in the record." Ahmad, 246 N.J. at
609 (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Deference is given
"to those findings in recognition of the trial court'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, 192 N.J. at 244). "A reviewing court
'ordinarily will not disturb the court's factual findings unless they are "so
clearly mistaken that the interests of justice demand intervention and
A-3379-21 11 correction."'" State v. Gray, 474 N.J. Super. 216, 222 (App. Div. 2022)
(quoting State v. Goldsmith, 251 N.J. 384, 398 (2022)). "A trial court's legal
conclusions, however, and its view of 'the consequences that flow from
established facts' are reviewed de novo." Goldsmith, 251 N.J. at 398 (quoting
State v. Hubbard, 222 N.J. 249, 263 (2015)).
Our deference to a trial court's findings of fact is not limited only to
those based on live testimony presented at an evidentiary hearing. We also
defer to a court's fact finding based on its review of video and documentary
evidence because of the court's "expertise in fulfilling the role of factfinder."
State v. S.S., 229 N.J. 360, 379-80 (2017). We will not reject a trial court's
findings of fact merely because we "disagree[] with the inferences drawn and
the evidence accepted by the trial court or because [we] would have reached a
different conclusion." Id. at 374.
Defendant argues the court erred by denying his suppression motion
because only six seconds elapsed between Sergeant Tennant's first knock -and-
announce and the officers' forcible entry into the home. He claims that under
the circumstances presented, six seconds did not constitute a reasonable
amount of time following the first knock-and-announce, and, for that reason,
the search following the forcible entry was unlawful.
A-3379-21 12 "The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution, in almost identical language,
protect against unreasonable searches and seizures." State v. Smart, 253 N.J.
156, 164-65 (2023) (quoting State v. Nyema, 249 N.J. 509, 527 (2022)).
"Within the framework of the [Fourth Amendment], the United States Supreme
Court has determined 'that the reasonableness of a search of a dwelling may
depend in part on whether law enforcement officers announce . . . their
presence and authority before entering.'" State v. Johnson, 168 N.J. 608, 616
(2001) (quoting Wilson v. Arkansas, 514 U.S. 927, 931 (1995)).
"The rationale undergirding the knock-and-announce rule is
compelling." Caronna, 469 N.J. Super. at 488. The rule serves the
"worthwhile purposes[,]" Johnson, 168 N.J. at 616, of "decreasing the potential
for violence[,]" protecting the privacy of the individuals within the residence,
and "preventing the physical destruction of property[,]" ibid. (quoting 2 Wayne
R. LaFave, Search and Seizure § 4.8(a) at 599-600 (4th ed. 1984)).
Our Supreme Court has explained "[t]he knock-and-announce rule
renders unlawful a forcible entry to arrest or search 'where the officer failed
first to state his authority and purpose for demanding admission.'" State v.
Robinson, 200 N.J. 1, 13-14 (2009) (quoting Miller v. United States, 357 U.S.
301, 308 (1958)). "A necessary corollary of the knock-and-announce rule is
A-3379-21 13 that when 'the police announce . . . their presence and [are] greeted with
silence . . . a reasonable time must elapse between the announcement and the
officer's forced entry.'" Id. at 16 (alteration in original) (quoting Johnson, 168
N.J. at 621). Officers that fail to wait a reasonable time before forcibly
entering a residence following an appropriate knock-and-announce violate the
reasonableness requirements of the Fourth Amendment, as applied to the
States through the Fourteenth Amendment to the United States Constitution,
Hudson, 547 U.S. at 589; Wilson, 514 U.S. at 931-36, and Article 1, Paragraph
7 of the New Jersey Constitution, Robinson, 200 N.J. at 16; Johnson, 168 N.J.
at 616.
The "'reasonable wait time' standard" is "necessarily vague" and requires
consideration of the circumstances existing when the police execute the
warrant. Hudson, 547 U.S. at 590; State v. Rodriguez, 399 N.J. Super. 192,
200 (App. Div. 2008). The United States Supreme Court has "described the
'proper measure' of the 'reasonable wait time' as the time it would take the
suspect to dispose of the evidence sought[.]" Id. at 201 (quoting Hudson, 547
U.S. at 590). A court "may also validly consider the time it would reasonably
take an occupant to answer the door, given that another purpose of the knock -
and-announce rule is to prevent the physical destruction of property, such as
the door itself[.]" Ibid. (citing Johnson, 168 N.J. at 616).
A-3379-21 14 "[W]hen the knock-and-announce rule does apply, it is not easy to
determine what officers must do." Robinson, 200 N.J. at 16 (quoting Hudson,
547 U.S. at 590). The inquiry necessarily requires a determination of "[h]ow
many seconds' wait are too few?" Ibid. (quoting Hudson, 547 U.S. at 590).
"[T]he time lapse [preceding forced entry need not be] extensive in length,
depending on the circumstances of a given case." Ibid. (second alteration in
original) (quoting Johnson, 168 N.J. at 621-22). The "facts known to the
police are what count in judging reasonable waiting time[,]" ibid. (quoting
United States v. Banks, 540 U.S. 31, 39 (2003)), and "the crucial fact in
examining [law enforcement's] actions is not the time" it may take a resident
"to reach the door but the particular exigency claimed[,]" id. at 17 (quoting
Banks, 540 U.S. at 40).
Where, as here, the search warrant is founded on evidence showing the
defendant is involved in the distribution of narcotics, "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[.]'" Ibid.
(alteration in original) (quoting Hudson, 547 U.S. at 590). As the Court
explained in Johnson, "[i]n respect of the destructibility of heroin and cocaine,
we take judicial notice of the fact that small quantities of narcotics sold out of
A-3379-21 15 a person's home are almost always susceptible to destruction or disposal." 168
N.J. at 620.
Where a search is executed pursuant to a warrant, the "warrant is
presumed to be valid and . . . [the] defendant challenging its validity has the
burden to prove 'that there was no probable cause supporting the issuance of
the warrant or that the search was otherwise unreasonable.'" State v. Jones,
179 N.J. 377, 388 (2004) (emphasis added) (quoting State v. Valencia, 93 N.J.
126, 133 (1983)). That is, defendant bore the burden of establishing the
officers' execution of the search warrant at the residence was unreasonable.
Ibid.
In its decision on defendant's suppression motion, the court effectively
determined defendant did not sustain his burden because he failed to establish
the length of time the officers waited to forcibly breach the front door after
first knocking and announcing their presence. As noted, the court found the
"ambiguous" recording did not allow a determination of the officers ' waiting
time because although it showed the officers knocking and announcing at the
front door, it abruptly ended seconds later. Of course, a lack of evidence
establishing the time the officers waited — beyond Lavida Jones's vague
testimony the officers waited less than five minutes — might support a finding
A-3379-21 16 defendant did not carry the burden of establishing execution of the search
warrant was unreasonable. Jones, 179 N.J. at 388.
Although we generally defer to a court's fact findings based on its
review of a recording, S.S., 229 N.J. at 379, we are required to do so only
where "more than one reasonable inference can be drawn from the review of a
video recording," id. at 380. 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. Id. at
381. 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
A-3379-21 17 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." Robinson, 200 N.J.
at 16 (quoting Johnson, 168 N.J. at 621). As such, the officers' wait time must
be measured from the completion of the first knock-and-announce to the
A-3379-21 18 moment the officers forcibly breached the door with the battering ram. 5 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, S.S., 229 N.J. at 380, 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, ibid. The critical point is the
recording does not "abruptly end" until after it shows the officers breaking
down the door. We owe no deference to a court's fact findings that "are not
supported by sufficient credible evidence in the record." Id. at 381. We
therefore do not defer to the trial court's finding the waiting time before entry
as captured by the recording could not be determined based on the evidence
presented. Ibid.
5 The court's finding the officers made three separate knocks-and-announces is technically accurate, but they followed each other in such rapid succession it might be argued they should be considered as a single knock-and-announce. If that argument was made and accepted, the officers did not pause and wait at all as required, Robinson, 200 N.J. at 13-14, because simultaneous with the end of the last of the three, the officers breached the front door with the battering ram. The issue is not raised or argued by the parties, and, despite our observations concerning it, we offer no opinion on its merit.
A-3379-21 19 A determination whether officers waited a reasonable time to forcibly
enter a residence to execute a knock-and-announce warrant "is not gauged
purely by a Procrustean approach to the passage of time." Rodriguez, 399 N.J.
Super. at 201. But since officers are constitutionally required to wait a
reasonable time prior to forcibly entering a residence during the execution of a
knock-and-announce warrant, the amount of time the officers wait is an
essential element of the analysis. See Hudson, 547 U.S. at 589; Wilson, 514
U.S. at 931-36; Robinson, 200 N.J. at 16; Rodriguez, 399 N.J. Super. at 200-
02. Thus, the court's erroneous determination 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.
We opt to exercise our original jurisdiction to decide the search's
reasonableness as we are permitted to do "as is necessary to the complete
determination of any matter on review." R. 2:10-5. An exercise of original
jurisdiction is warranted "to avoid unnecessary further litigation" and because
"the record is adequate to terminate the dispute and no further fact[ ]finding" is
required and "a remand would be pointless because the issue to be decided is
one of law and implicates a public interest." Vas v. Roberts, 418 N.J. Super.
A-3379-21 20 509, 523-24 (App. Div. 2011). Our exercise of original jurisdiction is
warranted "as a way to achieve the judicial system's goals of efficiency,
finality, and fairness." Price v. Himeji, LLC, 214 N.J. 263, 283 (2013).
"[I]n evaluating the constitutionality of police conduct in executing a
warrant, 'the basic test under . . . Article I, Paragraph 7, of the New Jersey
Constitution is . . . was the [police] conduct objectively reasonable in light of
"the facts known to the law enforcement officer at the time of the search."'"
Caronna, 469 N.J. Super. at 495 (alteration in original) (quoting State v.
Handy, 206 N.J. 39, 46-47 (2011)). A determination of whether officers
waited the requisite reasonable time to forcibly enter a residence after
knocking and announcing their presence "turns on the circumstances existing
when the police execute the warrant." Rodriguez, 399 N.J. Super. at 200; see
also Banks, 540 U.S. at 39. In making the determination, we must consider
whether the officers' conduct was "objectively reasonable in light of 'the facts
known to the . . . officer[s] at the time of the search.'" State v. Rockford, 213
N.J. 424, 441 (2013) (quoting Handy, 206 N.J. at 46-47).
Generally, "[t]here are common factors to be applied in determining the
reasonableness of the delay between knocking and announcing and a forcible
entry." Robinson, 200 N.J. at 17. Those factors include: the defendant's
"violent criminal history"; "an informant's tip that weapons will be present";
A-3379-21 21 any "risks to [the] officers' lives and safety"; "the size [and] layout of" the
property; "whether persons other than defendant reside there"; "whether others
involved in the crimes are expected to be present"; and "the time of day" of the
search. Ibid. (citations omitted).
Here, 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.
See Jones, 179 N.J. at 399-400 (explaining a defendant's prior history for
violent crimes may support a no-knock search warrant). 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. See id. at 406-07 (describing
evidence, including records of a defendant's prior arrests and convictions for
violent crimes, supporting a finding the defendant has a "violent nature" and
poses a risk to officer safety supporting issuance of a no-knock warrant).
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 violation of N.J.S.A. 2C:35-10(c) in part to
support its finding the officers waited a reasonable amount of time prior to
A-3379-21 22 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. An offense under N.J.S.A. 2C:35-10 is committed
by any individual possessing a controlled dangerous substance who does not
"voluntarily deliver the substance to the nearest law enforcement officer." 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,
N.J.S.A. 2C:29-2, 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, N.J.S.A. 2C:29-2(a)(2), or third-degree
resisting arrest by either using or threatening the use of physical force or
violence or by "any other means to create a substantial risk of causing physical
injury to the public servant or another," N.J.S.A. 29:2-2(a)(3)(a) and (b).
Thus, that the search warrant affidavit showed defendant had a conviction for
A-3379-21 23 "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 trial court generally referred to the nature of the residence —
identifying it as a duplex — but the court did not consider its size in its
determination of the reasonableness of the officers' wait time. The testimony
of the witnesses — which the court found credible — established the duplex
was two stories and large enough that, from her bedroom on the second floor,
Kanaya Jones could not hear the officers announce their presence and instead
she first heard a "bang" and then the officers running up the stairs.
The reasonable wait time prior to a forcible entry during the execution of
a search warrant is in part determined by the time it might take an occupant of
a residence to get to the door. See Robinson, 200 N.J. at 17 (explaining a
court considering the reasonableness of the requisite wait time following the
initial knock-and-announce and forced entry must consider the time of day the
warrant was executed); see also United States v. Granville, 222 F.3d 1214,
1218 (9th Cir. 2000) (finding unreasonable an early morning forced entry
execution of a search warrant five seconds after knocking and announcing
because the occupants were likely asleep and did not have sufficient time to
deny the officers' entry). In Banks, the United States Supreme Court observed
the time it might take an occupant to get to the door is dependent in part on the
A-3379-21 24 size of the property. 540 U.S. at 40. The Court explained the time it would
take an occupant to get to the door "will vary with the size of the
establishment, perhaps five seconds to open the motel room door, or several
minutes to move through a townhouse." Ibid.
Here, the officers did not wait minutes for the occupants to move
through Lavida Jones's duplex. Instead, they broke down the door of Lavida
Jones's two-story residence less than five seconds after they first knocked and
announced. Even though she slept on a couch only a few feet from the front
door, she did not have sufficient time to get to that door prior to the officers'
forced entry into her home. In our view, the size of Lavida Jones's residence,
which was generally known to the officers, therefore weighs against a finding
the less-than-five seconds the officers waited is reasonable. See Rodriguez,
399 N.J. Super. at 201-02 ("It is also reasonable to expect police to wait a
longer period of time before entering when the premises are large as opposed
to an apartment or hotel room.").
Also weighing against a finding the officers' wait time was reasonable is
the time of day — 5:00 a.m. — they executed the warrant. "[T]he expected
time for a resident to answer a knock at the door may be longer at a time when
it is reasonable to assume that the occupant is sleeping." Id. at 201; cf. Banks,
540 U.S. at 40 (noting a "significant circumstance[]" in finding a fifteen -to-
A-3379-21 25 twenty-second wait time was reasonable was that police executed the search
warrant upon arriving "during the day, when anyone inside would probably
have been up and around[.]"). It may be reasonably inferred the officers
executed the warrant at 5:00 a.m. in part because they understood the
occupants would likely be asleep. 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
reside[d]" at the residence, but they had no information "others involved in the
crime [we]re expected to be present[.]" Robinson, 200 N.J. at 17. 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.
Indeed, although the search warrant affidavit states defendant has "used and
continues to use the residence . . . to commit the specified crimes, and that
evidence of the specified crimes will be recovered upon the said premises[,]"
and the police had "probable cause to believe the [residence] is used to store,
distribute, and stockpile . . . drugs, along with evidence of distribution[,]" the
A-3379-21 26 search warrant affidavit does not include any facts supporting a finding
defendant would be physically present at the residence at the time of the search
or that any other person residing in the home may be involved in his alleged
criminal activity. Those facts weigh in favor of the officers waiting a longer
period, rather than a shorter one, before forcibly entering the residence. See
id. at 17-18.
In denying defendant's motion, the 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.
Johnson, 168 N.J. at 620; Rodriguez, 399 N.J. Super. at 201. 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 possess ed 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. See Johnson,
168 N.J. at 620. Moreover, there is no other information in the search warrant
affidavit establishing defendant presented a particularized risk of destroying
evidence. See id. at 620-21 (explaining a no-knock warrant is not supported
A-3379-21 27 by a mere claim an individual could destroy evidence during a search executed
pursuant to a warrant).
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, Robinson, 200
N.J. at 13-14, 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,
A-3379-21 28 and unconstitutional, execution of a knock-and-announce warrant. See, e.g.,
Granville, 222 F.3d at 1218 (finding early morning forced entry unreasonable
because occupants were likely still asleep and five seconds was insufficient
time to infer denial of admittance).
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 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. Robinson, 200 N.J. at 16-17.
The State argues that even if the officers violated defendant's
constitutional right to be free from unreasonable searches and seizures, the
exclusionary rule does not require suppression of the evidence. We disagree.
In Caronna, we explained the purposes of the exclusionary rule and our
State's broad application of the rule to violations of the knock-and-announce
requirement. 469 N.J. Super. at 494. We held the exclusionary rule bars the
admission of evidence seized following an unreasonable entry into a dwelling
A-3379-21 29 in violation of a knock-and-announce requirement contained in a search
warrant. Id. at 495; see also Rodriguez, 399 N.J. Super. at 203-05 (suggesting,
but not deciding, the exclusionary rule applies where law enforcement officers
fail to wait a reasonable period of time to forcibly enter a residence after
knocking and announcing their presence during execution of a search warrant).
We are unpersuaded a different remedy should apply where the officers violate
a "necessary corollary" of the constitutionally required knock-and-announce
rule by failing to wait a reasonable period before forcibly entering a residence
pursuant to a search warrant that requires the officers knock-and-announce.
See Robinson, 200 N.J. at 16.
The State claims a different result should apply under the circumstances
presented because we are not confronted with what we characterized as a
"flagrant" violation of the knock-and-announce rule in Caronna. The argument
ignores that in our State even a good faith violation of a defendant's
constitutional rights provides law enforcement no refuge from application of
the exclusionary rule. State v. Novembrino, 105 N.J. 95, 157-58 (1987)
(declining to recognize a good faith exception to the exclusionary rule in our
State because doing so would "undermine the constitutionally-guaranteed"
protections that inhere in Article 1, Paragraph 7 of the New Jersey
Constitution).
A-3379-21 30 We also reject the State's claim the constitutional violation here cannot
be properly characterized as flagrant. Constitutional principles required the
officers pause for a reasonable period before knocking down the front door of
the residence, Robinson, 200 N.J. at 13-14, but Sergeant Tennant, who led the
team of fifteen officers, testified he did not think about "time" at all during the
execution of the search. And, as we have explained, the officers failed to
honor the reasonable-wait requirement by effectively failing to wait any time
at all before battering down the door to the residence.
The officers opted not to seek a no-knock warrant. Having done so, and
having not received authorization from the court for a no-knock warrant, the
officers effectively rendered their entry into the residence a no-knock entry by
their failure to comply with the reasonable-wait requirement. That entry, even
if due to ignorance, simple error, or good-faith belief, may be properly
characterized as a flagrant violation of defendant's constitutional rights for
which there is a need to deter "similar future violations of constitutional
rights." Caronna, 469 N.J. Super. at 503 (quoting State v. Chaney, 318 N.J.
Super. 217, 227 (App. Div. 1999)). Moreover, a violation of the knock-and-
announce rule requires suppression under the exclusionary rule. Id. at 495; see
also id. at 503 (rejecting "application of the inevitable discovery exception to
A-3379-21 31 the exclusionary rule" where law enforcement clearly disregarded the knock-
and-announce requirements of a search warrant).
We reverse the court's order denying defendant's suppression motion and
remand to the trial court to allow defendant to take such actions as he may
deem appropriate concerning his plea to the charge for which he was
convicted.
Reversed and remanded. We do not retain jurisdiction.
A-3379-21 32