Lead Opinion
delivered the opinion of the Court.
On August 24, 2007, officers from the Manalapan Police Department executed a search warrant at the home that defendant John J. Rockford, III shared with his parents. Based upon an investígation that included surveillance, officers suspected defendant of conducting a drug distribution operation in his residence, and concluded that defendant had access to weapons located in the home. The search warrant executed by the Manalapan police officers was a “knock-and-announce” warrant, which, with narrow exceptions, requires officers to knock on the door and announce their authority and purpose before entering the premises. In their execution of the warrant, the officers followed a written plan that included the use of a “flash-bang” diversionary device, designed to generate an intense flash of light and loud noise to briefly distract a suspect. They deployed the flash-bang device outdoors, on defendant’s driveway, immediately before entering the open garage, knocking on the doors of the residence and entering the home itself. The officers’
Defendant moved to suppress the evidence recovered by the police from the search. He challenged the officers’ use of the flash-bang device prior to knocking and announcing their presence, and their conduct as they entered the garage and the interior of the home, on the ground that the officers violated the “knock-and-announce” provision of the warrant. The trial court denied the motion to suppress, and defendant pled guilty to two drug offenses.
Defendant appealed. A divided Appellate Division panel reversed the trial court’s decision denying the motion to suppress. The panel’s majority held that the preplanned use of a flash-bang device is inherently inconsistent with a knock-and-announce search warrant, and that the officers’ search violated the terms of the warrant, thus requiring the exclusion of the evidence discovered during the search. A member of the panel dissented, finding the officers’ execution of the search warrant objectively reasonable, and concluding that their preplanned deployment of the flash-bang device was proper under the circumstances of this case. By virtue of the dissent in the Appellate Division, the State appealed as of right.
We reverse the Appellate Division panel’s determination. We conclude that the execution of the warrant did not violate defendant’s right against unreasonable search and seizure under the Fourth Amendment to the United States Constitution or Article I, Paragraph 7 of the New Jersey Constitution. We further conclude that the officers’ execution of the search warrant was objectively reasonable, given the setting in which they proceeded- — a home containing multiple firearms that was suspected of serving as the hub of a significant drug distribution operation. We decline to adopt a bright-line rule that would preclude the use of a flash-bang device in the execution of a knock-and-announce warrant absent unanticipated exigent circumstances. Under the totality of the circumstances, we find the officers’ conduct in executing the search warrant to be objectively reasonable and, thus consistent with constitutional standards.
I.
An anonymous informant’s tip triggered the Manalapan Police Department’s investigation of defendant. The informant reported that a man named Rockford in his late twenties or early thirties was selling marijuana and prescription drugs by briefly admitting CDS buyers into his garage attached to his residence located near police headquarters. Officers were familiar with defendant because of prior investigations involving the sale of CDS. They determined that although defendant had been denied a handgun permit because of a previous arrest, defendant’s seventy-seven-year-old father legally owned four firearms. The officers learned that the father had sought two additional permits, and that defendant frequently accompanied his father when he inquired about the applications’ statuses. Thus, from the inception of the investigation, officers were concerned that defendant had ready access to firearms in the home that he shared with his parents.
Police conducted surveillance of defendant’s residence for six days in August 2007. Officers observed defendant briefly admit individuals into the garage after opening the overhead garage door. Visitors left holding objects that had not been with them when they arrived. During the surveillance, officers observed groups of people smoking what the officers believed to be marijuana in the garage.
With the application for the warrant submitted to the court, the officers planned their operation. Lieutenant Michael Fountain, leader of the Manalapan Police Department’s Emergency Response Team (ERT), led the planning. Lieutenant Fountain was certified as an instructor in the use of the flash-bang device, which the Department had yet to deploy in any police operation. On August 22, 2007, officers met to discuss the execution of both a “no-knock” and a “knock-and-announce” warrant.
On August 23, 2007, a Superior Court judge issued the warrant but directed that it be a knock-and-announce warrant, rather than the requested no-knock warrant. The officers then completed a “risk assessment matrix” to determine the operation’s threat to police safety. Given defendant’s suspected involvement in CDS and defendant’s potential access to firearms, the ERT was charged with leading the execution of the warrant. The Manalapan Police Department did not seek an emergent appeal of the trial court’s denial of the “no-knock” provision that it had sought.
With the search warrant in hand, the officers finalized their plan for the warrant’s execution. The plan called for a dozen officers, divided into three teams, to approach defendant’s home from different vantage points. Team One, consisting of five officers and headed by Lieutenant Fountain, would deploy the flash-bang device outdoors. The plan called for Lieutenant Fountain to toss the device from a vehicle parked in the neighbor’s driveway to defendant’s driveway, and then to proceed into the garage, detaining anyone in the garage and securing the first floor. The four officers comprising Team Two would proceed to the front door of the residence, knock and announce their presence and purpose, and enter the home. Team Three would remain outdoors behind the residence and apprehend anyone attempting to flee.
The officers approached defendant’s home late in the afternoon of August 24, 2007. They waited until the overhead garage door was open, and saw two men standing on the driveway near the open door. They recognized one of the men as defendant, based upon descriptions of him as a very tall individual weighing over 300 pounds. Team One mistakenly parked its vehicle in defendant’s driveway rather than the neighbor’s driveway. Nonetheless, Lieutenant Fountain tossed the flash-bang device from the police vehicle onto defendant’s driveway, between thirty and thirty-five feet from the garage, where it emitted a bright flash and a loud sound. Defendant and the other individual retreated into the garage, pursued through the open door by the officers, who shouted, “[p]olice, search warrant. Police, we have a search warrant.” Lieutenant Fountain pointed his service weapon at the two men and directed them to put their hands in the air, and officers handcuffed them.
The Manalapan officers’ search of defendant’s home and property yielded considerable evidence. They found three handguns, a rifle with ammunition, a banana clip ammunition magazine, five pounds of marijuana, more than 7000 prescription drug pills in sample packages or bottles labeled for six individuals, blank prescription forms, seventy-six Fentanyl patches and pops, 340 milligrams of lysergic acid diethylamide (LSD), hashish, psilocybin (“mushrooms”) and ecstasy pills. The officers also found processing equipment and paraphernalia including scales, a vacuum sealer, several thousand plastic bags and forty devices used to ingest CDS. The officers also recovered three personal computers, three police radio scanners, mobile telephones and several photographs appearing to depict defendant and others ingesting CDS. The admissibility of this evidence against defendant is the issue before the Court.
II.
Defendant was indicted on fourteen counts: fourth-degree possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(3); third-degree possession of more than an ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(ll); attempted distribution of more than an ounce of marijuana, N.J.S.A. 2C:35-5(b)(ll); third-degree possession of psilocybin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of psilocybin with intent to distribute, N.J.S.A. 2C:35-5(b)(13); third-degree possession of LSD, N.J.S.A. 2C:35-10(a)(l); first-degree possession of LSD with intent to distribute, N.J.S.A. 2C:35 — 5(b)(6); third-degree possession of ecstasy, N.J.S.A. 2C:35-10(a)(l); third-degree possession of ecstasy with intent to distribute, N.J.S.A. 2C:35-5(b)(3); third-degree possession of prescription drugs, N.J.S.A. 2C:35-10(a)(l); third-degree possession of prescription drugs with intent to distribute, N.J.S.A. 2C:35-5(b)(5); fourth-degree interception of emergency communications for unlawful purposes, N.J.S.A. 2C:33-21; fourth-degree possession of a radio to intercept emergency communications while committing a crime, N.J.S.A. 20:33-22; and fourth-degree unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j).
Defendant moved to suppress the evidence found at his home. The trial court held a four-day suppression hearing. Lieutenant Fountain and Sergeant Paul Seetoo, who participated in the execution of the warrant, testified for the State.
Defendant and his parents testified on his behalf at the suppression hearing. Defendant’s mother stated that she mistook the sound of the flash-bang device for a problem with her furnace, that she did not hear knocking on the door before hearing the sound of the battering ram and seeing officers in her home, and that she was “scared to death” to encounter an officer pointing a gun at her. Defendant’s father testified he was out for a walk when the officers arrived. He said that upon his return he saw a white mark on his driveway, later attributed to the flash-bang device. Defendant testified that the flash-bang device was deployed about five or six feet from him on his driveway.
The trial court denied the motion to suppress. It concluded that the Manalapan Police Department did not violate the terms of the knock-and-announce warrant. Deeming the testifying officers credible, the trial court determined that the officers knocked and announced their presence and their purpose following the detonation of the flash-bang device. The court concluded that the officers’ entry into the garage and then into the home was constitutionally permissible. Relying upon two Appellate Division decisions, State v. Fanelle, 385 N.J.Super. 518,
In the wake of the trial court’s denial of his motion to suppress, defendant pled guilty to two of the fourteen charges, first-degree possession of LSD with intent to distribute and third-degree possession of prescription drugs with intent to distribute, in exchange for the dismissal of the remaining charges. He reserved the right to appeal the denial of his suppression motion. The trial court sentenced defendant to ten years’ imprisonment with three years’ parole ineligibility and a one-year license suspension for his LSD conviction and a concurrent term of five years’ imprisonment with a six-month license suspension for the prescription drug conviction, as well as imposed fees and penalties.
Defendant appealed the denial of his motion to suppress. He argued that the use of the flash-bang device represented unreasonable police conduct in the execution of the warrant, and that the mere
The Appellate Division reversed. The majority of the panel held that the Manalapan Police Department’s preplanned deployment of the flash-bang device violated the knock-and-announce provision of the search warrant, characterizing the police tactic as a potential “use of force” and an attempt to circumvent the terms of the warrant. Citing the upsetting effect of the police action on defendant’s “elderly parents,” the Appellate Division majority criticized the officers for executing the warrant while defendant and the others were at the residence. The majority opined that the officers should have waited “until defendant left the premises” before proceeding into the residence. The majority invoked the exclusionary rule to bar the evidence collected by the officers notwithstanding the existence of a search warrant.
One member of the panel dissented. The dissenting judge opined that the use of the flash-bang device in this case neither violated the terms of the search warrant nor constituted an effort to circumvent those terms. She disputed the majority’s conclusion that the officers did not wait a sufficient time between announcing their presence and entering defendant’s home. Noting the presence of several firearms in the residence and defendant’s interest in his father’s pending handgun permits, the dissenting judge reasoned that the circumstances presented a significant threat to the officers’ safety. She stated that the majority’s holding that the police should have waited to act until defendant had left the premises ignored the possibility that defendant’s father could have used the weapons whether or not defendant was present.
The State appealed as of right, Rule 2:2 — 1(a)(2), and this Court reviews the issues addressed by the dissenting Appellate Division judge. State v. Allegro, 193 N.J. 352, 371 n. 9,
III.
The State urges the Court to reverse the Appellate Division’s decision and uphold the trial court’s denial of the motion to suppress. It argues that the Manalapan Police Department’s outdoor deployment of the flash-bang device was safe and reasonable considering the totality of the circumstances that confronted the officers. The State contends that the officers’ entry through defendant’s open overhead garage door did not violate the terms of the knock-and-announce search warrant. The State maintains there is no constitutional requirement that police knock on a door that is open, and that once inside the garage, the officers could lawfully enter the interior of the residence. It further contends that the Appellate Division majority improperly applied the exclusionary rule as a remedy for the constitutional violation that it found.
Defendant argues that the Appellate Division majority properly held that a flash-bang device cannot constitutionally be used in the execution of a knock-and-announce search warrant. Relying upon the Appellate Division’s decisions in Fanelle and Robinson, defendant urges the adoption of a bright-line rule barring the use of a flash-bang device in the execution of a knock-and-announce warrant absent a showing of unforeseen circumstances. He further contends that the officers’ entry through the open garage door violated the terms of the warrant, because the two
TV.
We consider the factual findings of the trial court, premised upon detailed testimony elicited in a lengthy suppression hearing, in accordance with a deferential standard of review. “ ‘[A]n 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.’ ” State v. Robinson, 200 N.J. 1, 15,
V.
The Fourth Amendment to the United States Constitution ensures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and provides that no warrant shall issue “but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Article I, paragraph 7 of the New Jersey Constitution similarly shields our State’s residents from unreasonable searches and seizures. N.J. Const. art. I, ¶ 7. Its reach has been held coextensive to that of the Fourth Amendment as applied to the method of executing knock-and-announce search warrants. State v. Johnson, 168 N.J. 608, 617,
Under the federal and state constitutions, the inquiry into the reasonableness of a residential search entails scrutiny of the steps taken by officers to enter and search a home. Johnson, supra, 168 N.J. at 616,
The warrant at issue incorporated a knock-and-announce provision. Such a provision “renders unlawful a forcible entry to arrest or search “where the officer failed first to state his authority and purpose for demanding admission.’ ” Robinson, supra, 200 N.J. at 13-14,
The United States Supreme Court and this Court, in other settings, have recognized the importance of protecting officer safety. See, e.g., Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889, 908 (1968) (“it would appear to be clearly unreasonable to deny [a police] officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm”); State v. Davila, 203 N.J. 97, 115,
As the United States Supreme Court and this Court have recognized, the balancing of individual rights and law enforcement safety is best accomplished by a case-specific analysis. United States v. Banks, 540 U.S. 31, 35-36, 124 S.Ct. 521, 525, 157 L.Ed.2d 343, 352 (2003); Robinson, supra, 200 N.J. at 16,
VI.
The Manalapan officers’ decision to use a flash-bang device as they executed the knock-and-announce warrant raises the primary issue addressed in this appeal. The United States Supreme Court has yet to consider the constitutionality of police deployment of a flash-bang device in the execution of either a knock-and-’announce search warrant or a warrant authorizing a no-knoek entry. Federal case law regarding this issue imposes no blanket prohibition on the use of flash-bang devices in the execution of knock-and-announce warrants. Several federal appellate courts have upheld the denial of suppression motions on a ease-by-case basis. See, e.g., United States v. Boulanger,
We can distill several principles from these cases that have relevance here. First, several federal appellate courts have identified careful police planning prior to executing a warrant using a flash-bang device as a factor supporting a finding that law enforcement conduct is objectively reasonable. See Boulanger, supra,
Second, the presence of weapons in a residence has been held to weigh in favor of a finding that the use of a flash-bang device was constitutionally permissible. See Boulanger, supra,
Finally, in every case in which federal appellate courts have found the use of a flash-bang in the execution of a warrant to be objectively unreasonable, the device had been deployed in an indoor setting in which it posed a risk to occupants and property. See United States v. Ankeny,
In New Jersey, two Appellate Division panels have considered the use of flash-bang devices in the execution of search warrants. In Fanelle, the panel reviewed the trial court’s denial of the defendant’s motion to suppress evidence of CDS use, premised upon police officers’ indoor use of a flash-bang device in the execution of a no-knock search warrant. Fanelle, supra, 385 N.J.Super. at 525, 528-33,
In Robinson, thirteen police officers knocked on the door, announced their presence and purpose, forced their way into the defendant’s apartment, deployed a flash-bang device indoors and arrested the defendant. Robinson, supra, 399 N.J.Super. at 407-09,
We decline to adopt the Appellate Division majority’s bright-line rule against the use of a flash-bang device to execute a knock-and-announce warrant. We hold that the objective reasonableness of law enforcement’s execution of a warrant that includes the use of this tactic should be determined on a case-by-case basis, considering the totality of the circumstances. Courts should weigh such factors as the scope of any threat of violence presented by the occupant, the physical features of the residence, the presence of others on the premises, the potential loss of evidence if the device is not used and the risk of personal injury and property damage that the deployment would pose. In some circumstances, the use of a flash-bang device may threaten the safety of occupants and undermine the purpose of the knock-and-announce warrant, and a court might properly find that the device cannot reasonably be deployed in a given setting.
In this case, the search was objectively reasonable. The trial court found that the officers methodically planned the execution of the warrant before it was obtained. It found that the officers alternatively planned for both a no-knock warrant and a knock-and-announce warrant. Based upon their painstaking investigation, the officers suspected defendant of conducting a substantial CDS operation from his home. They knew that defendant had access to several firearms registered to his father, and was intensely interested in the progress of his father’s application for additional firearm permits. The officers also were aware that individuals associated with CDS sales could be present when the search warrant was executed. Moreover, the officers neither contemplated nor executed an indoor deployment of the flash-bang device. Instead, Lieutenant Fountain tossed the device from a vehicle onto defendant’s driveway, posing no risk of personal injury or property damage other than a mark on the driveway. Following the deployment of the device, defendant and the other individual retreated into the open garage, where defendant was promptly arrested.
The Appellate Division majority repeatedly invoked the officers’ detailed plan for the execution of the warrant, incorporating the use of the flash-bang device, as a source of particular concern.
VII.
In light of its ruling on the flash-bang issue, the Appellate Division majority did not address the second issue raised by this case: whether police waited a sufficient time after knocking on the door before entering the defendant’s home.
What constitutes a “reasonable time” is “necessarily vague,” and contingent upon the circumstances of the specific case. Robinson, supra, 200 N.J. at 16,
Here, the trial court noted several factors supporting the objective reasonableness of the steps taken by police officers in this case: the officers’ awareness that defendant was likely to have access to his
The trial court found that the first team of officers waited until defendant opened the overhead garage door. The officers then deployed the flash-bang device from their vehicle onto the driveway and repeatedly announced, “[p]olice, we have a search warrant” for approximately fifteen seconds before entering the garage through the open door. Defendant retreated into the open garage, pursued by the officers shouting “[pjolice, don’t move. Police, don’t move. Put your hands in the air. We have a search warrant.” The trial court found that two officers then knocked and announced their presence and purpose for three or four seconds before entering through the interior door from the garage into the house. It concluded that the second team of officers at the residence’s front door knocked and announced their presence for about twenty-five to thirty seconds, and then attempted to break through the door with a battering ram. The court found that the second team’s effort to break down the door was quickly halted by Lieutenant Fountain, who directed the officers to enter through the garage. From the interior of the first floor, the officers proceeded throughout the house in search of evidence.
We conclude that the trial court’s factual findings regarding this sequence of events were supported by sufficient credible evidence in the record. See Robinson, supra, 200 N.J. at 15,
Given our holding that the officers’ execution of the warrant was constitutional, we do not reach the question of whether the exclusionary rule is the appropriate remedy for an unconstitutional execution of a knock-and-announce warrant under our State Constitution, an issue that has been addressed by the United States Supreme Court. See Hudson, supra, 547
VIII.
The judgment of the Appellate Division is reversed, and defendant’s conviction is reinstated.
Chief Justice RABNER, Justices ALBIN and HOENS, and Judges RODRÍGUEZ and CUFF (both temporarily assigned) join in Justice PATTERSON’S opinion.
Justice LaVECCHIA filed a separate, dissenting opinion.
Notes
A court may issue a "no-knock” search warrant premised upon "a reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence,” and when the officers have articulated "a minimal level of objective justification to support the no-knock entry, meaning it may not be based on a mere hunch.” Johnson, supra, 168 N.J. at 619,
Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).
In its decision on remand, relied upon by the dissent, post at 458,
The objective reasonableness of the use of the flash-bang device does not turn on whether the deployment of that device constitutes a “use of force,” an issue disputed by the parties but not decided by the Appellate Division. Instead, the constitutionality of the execution of the search warrant hinges on whether the warrant was executed in an objectively reasonable manner in light of the totality of the circumstances. State v. Ravotto, 169 N.J. 227, 236,
The dissent emphasizes a factual distinction between the federal case law and this case. Post at 454-55, 458-60,
There is no basis in the record for the Appellate Division majority's suggestion that the Manalapan officers perceived the search warrant in this case as an excuse to debut the Police Department's flash-bang device, which officers had been trained to use, but had yet to be deployed operationally.
The Appellate Division majority opined that the officers should have omitted the use of a flash-bang device and delayed their search until defendant was not on the premises. As the dissenting Appellate Division judge noted, defendant was not the only occupant of his home capable of using the firearms registered to his father. Moreover, a rule requiring police officers to execute knock-and-announce warrants when the suspect is absent would necessitate a search for the suspect, risking a potentially dangerous confrontation in a public setting.
The Appellate Division majority decided an additional issue, holding that evidence collected from defendant’s vehicles should be suppressed because the search warrant did not extend to vehicles. This issue was not raised by either party before the trial court or the Appellate Division panel. Accordingly, "an appellate court should stay its hand and forego grappling with an untimely raised issue." Robinson, supra, 200 N.J. at 21,
In these circumstances, in which officers clearly announced their presence and defendant retreated into the garage, the officers were not required to then pause and knock before entering the garage through the open overhead garage door. See United States v. Combs,
Dissenting Opinion
dissenting.
I firmly believe that hard and fast protocols for on-the-scene police activity are not appropriately set from the peaceful vantage that comes with subsequent judicial review. Law enforcement officers perform difficult tasks in oft-dangerous surroundings. Field officers should be supported for on-the-spot decisions made as events unfold that pose risk of harm to officers or to others. See State v. Davila, 203 N.J. 97, 102-03,
That said, I find myself in disagreement with the majority in this appeal. The issuance of a search warrant does not give officers a license to execute the warrant in any manner they wish, for doing so could lead to the unreasonable execution of the judicially authorized warrant. Evidence secured in such fashion has been excluded by this Court. See State v. Johnson, 168 N.J. 608, 616,
In this matter, a no-knock warrant was requested by the State and denied by the court. Instead, the court issued a knock-and-announce warrant. Nevertheless, the officers executing the warrant deployed a flash bang, which is a device that emits an intensely bright flash and a percussive, loud blast of sound. It has been called a percussion grenade. See State v. Robinson, 200 N.J. 1, 8,
The majority’s decision is remarkable in that the Court goes further than any other in the country by finding the execution of a knock-and-announce search warrant
I.
As the Appellate Division majority described the scene that unfolded in the execution of this search warrant, twelve police officers, some of whom were wearing helmets and protective gear, stormed defendant’s driveway to execute a knock-and-announce warrant in a suburban neighborhood several blocks away from the police station. Notably, a police investigation had concluded that defendant lived with his two parents, one of whom was approaching the age of seventy and the other who was over seventy. At the time of the search, the garage door to the home was open, and defendant was standing outside on the driveway apron with an unidentified individual. In an effort to catch defendant in the act of dealing drugs, officers threw the flash-bang device onto the driveway. We are told that this was done in an attempt to draw defendant out of the garage, although the logic to that is far from clear.
The scene resembled a military raid on a compound instead of a drug search in a suburban neighborhood. Indeed, a pre-raid analysis of the search concluded that the entry of the home, even taking into account the presence of firearms lawfully owned and registered by defendant’s father, was in the lowest category of risk. As part of the preparation to execute the search warrant, the police completed a “risk assessment matrix,” which uses a point system to evaluate the risk to police safety:
01-14 Points Serviee/execution may be handled by unit supervisor.
15-24 Points Consultation with the Monmouth County Emergency Response Team (MOCERT) Coordinator is required. MOCERT service of the warrant is optional. 25 plus Points Monmouth County Emergency Response Team (MOCERT) is required for servieafexecution of the warrant.
The point level assigned to the search warrant of defendant’s home was nine points, putting the execution in the lowest category of risk. Nonetheless, the police decided to use the Emergency Response Team and a flash bang to execute the warrant.
Per the plan, twelve officers were divided into three teams. Team One consisted of five officers whose task was to throw a flash bang onto defendant’s driveway, proceed to the garage, detain anyone present, and secure the rest of the first floor of the house. Team Two consisted of four officers whose task was to knock and announce their presence at the front door of the house and secure the second floor of the house. Team Three consisted of three officers who stayed behind the house to ensure that no one escaped.
The search warrant was executed in the afternoon on August 24, 2007. At the time, defendant was standing in front of the open garage with another individual. Team One threw the flash bang onto defendant’s driveway and yelled “Police, search warrant. Police, we have a search warrant.” As the police approached, the
Meanwhile, just after Team One entered the house, Team Two announced their presence and knocked at the front door. After knocking for about three to four seconds, Team Two applied a battering ram to break down the door. Team One, already upstairs in the house securing defendant’s sixty-nine-year-old mother, radioed Team Two to cease using the battering ram and to enter through the garage door. After these events unfolded, defendant’s father returned home from a walk in a local park.
Defendant filed a motion to suppress the evidence seized from the home. The motion was denied after a hearing in which defendant, his parents, and the officers involved in the search testified. Defendant entered a guilty plea to first-degree possession of LSD with intent to distribute, N.J.S.A. 2C:35-5b(6), and third-degree possession of prescription drugs with intent to distribute, N.J.S.A. 2C:35-5b(5). The remaining charges were dismissed. Defendant appealed, and in a split decision, the Appellate Division reversed, concluding that although the planned use of a flash bang might have been appropriate had a no-knock warrant been granted, its use was inconsistent with the reasonable execution of the knock-and-announce warrant that was issued. A dissent brought this matter to us as of right. R. 2:2-l(a)(2).
II.
Our Court has not addressed whether the use of a flash bang is unreasonable in the execution of a knock-and-announce search warrant, although the Appellate Division has ventured into that territory. See State v. Robinson, 399 N.J.Super. 400, 415-17,
There is a scarcity of law directly on point to flash-bang usage in connection with knock-and-announce warrants. However, several cases, including one New Jersey case, State v. Fanelle, 385 N.J.Super. 518,
In Fanelle, supra, the Appellate Division addressed whether use of a flash bang was reasonable in the context of a no-knock warrant. 385 N.J.Super. at 528,
The Massachusetts Supreme Judicial Court also has addressed the use of a flash bang in the execution of a no-knock warrant. Commonwealth v. Gamer, 423 Mass. 735,
New federal circuit courts have addressed the use of a flash bang in the execution of a knock-and-announce search warrant. In United States v. Myers, the police executed a search warrant on a residence where it was suspected that the defendant was running a large-scale marijuana operation. 106 F.3D 936, 938-39 (10th Cir.1997). The defendant had prior convictions for burglary, theft, cocaine trafficking, and possession of a firebomb. Id. at 938. The police knocked and announced, waited ten seconds, battered down the door, and threw a flash bang into the living room. Id. at 939. The court reasoned that while the police “actions in this case come dangerously close to a Fourth Amendment violation, we cannot say their actions were objectively unreasonable given.... [the defendant’s] history of illegal drug trafficking, and ... [his prior conviction] for a fire bombing incident.” Id. at 940.
The Seventh Circuit also has found no violation of the Fourth Amendment prohibition against unreasonable searches in the use of a flash bang in the execution of a knock-and-announce search warrant where the device was deployed after entering the residence. See United States v. Jones,
The present case is distinguishable from all of the above state and federal cases. Unlike those scenarios, the police officers here used a flash bang before they even attempted to knock and announce their presence when executing a warrant to search defendant’s home. The actual knocking and announcing that took place at both doors to defendant’s home came after officers already had used the flash bang. The use of the device to create a diversion before even knocking or announcing makes this search resemble a surprise no-knoek search. Importantly, the police here point to no perceived on-the-scene danger to which they were reacting
On the other hand, if the police wished to avoid the requirement of knocking and announcing due to safety concerns known in advance, the State should have sought reconsideration from the warrant-issuing court or, as the Appellate Division noted, filed an emergent appeal on its application for a no-knock search warrant. The State chose not to do so. In fact, the State accepted the knock-and-announce warrant and put the execution of the warrant in the lowest category of risk on the risk assessment matrix, but still proceeded to use twelve police officers with a pre-planned flash bang before announcing its presence.
The police activity in this matter strikes me as excessive. In my judgment, the police execution of this warrant was performed using unreasonable means. The police knew that defendant lived with his elderly parents and was often engaging in drug transactions out in the open — in the driveway in front of his garage. While I acknowledge that defendant’s father had licensed firearms in the residence, the police were still under an obligation to act reasonably when executing the knock-and-announce warrant. I therefore respectfully disagree with the majority that this search should be upheld.
As to the appropriate remedy, we have invalidated searches that were conducted by unreasonable means inconsistent with the knock-and-announce requirement. See Johnson, supra, 168 N.J. at 623,
III.
For the reasons expressed, I respectfully dissent. I would affirm the judgment of the Appellate Division and suppress the evidence seized in this search.
For reversal and reinstatement — Chief Justice RABNER and Justices ALBIN, HOENS, PATTERSON, RODRÍGUEZ (t/a) and CUFF (t/a) — 6.
For dissent — Justice LaVECCHIA — 1.
Throwing a flash-bang device towards defendant when he already was standing outside the garage seems likely to cause exactly the opposite consequence than the one ostensibly sought by the police. In fact, it did result in defendant retreating into the garage.
547 U.S. 586, 599-602, 126 S.Ct. 2159, 2168-70,