Opinion
DOCKET NO. A-6073-11T2
04-08-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. JUSTIN K. DOWENS, Defendant-Respondent.
Sean F. Dalton, Gloucester County Prosecutor, attorney for appellant (Alec J. Gutierrez, Assistant Prosecutor, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Happas.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-09-0858.
Sean F. Dalton, Gloucester County Prosecutor, attorney for appellant (Alec J. Gutierrez, Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
The State appeals from the trial court order granting defendant's motion to suppress evidence seized pursuant to a search warrant. The motion judge found that the officer executing the search warrant failed to follow the strictures of search warrant procedures, namely, the officer failed to provide the residents with a copy of the search warrant and an inventory of items that were seized. He also failed to file the completed inventory and the return of the search warrant with the court in a timely manner. We now reverse.
On September 7, 2011, a two-count indictment was issued against defendant, Justin K. Dowens, charging him with possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(b)(3). On April 11, 2012, defendant filed a motion to suppress the evidence seized. At the suppression hearing, the State presented Detective Michael Powell of the Glassboro Police Department. Defendant presented his mother, Vanessa Mumford.
The testimony revealed that on March 29, 2011, following weeks of investigation that yielded evidence defendant was selling narcotics from his home, Detective Powell obtained a search warrant for defendant's residence. The search warrant directed the officer seizing any evidence to "give a receipt for the property so seized to the person from whom it was taken or in whose possession it was found . . . ." Additionally, it also commanded the executing officer to "make prompt return to [the issuing judge] with a written inventory of the property seized hereunder."
Detective Powell executed the warrant on April 6, 2011, at approximately 6:00 a.m. Mumford and her sister-in-law were the only persons in the apartment at the time. He told the two women to vacate the premises for the duration of the search, after which they would be permitted to return to the residence. The detective informed Mumford he would leave a copy of the search warrant in the residence after the search was completed. The women left the apartment and the officers searched defendant's room, where they recovered suspected controlled dangerous substances and various drug paraphernalia.
Detective Powell left a copy of the search warrant, along with a handwritten inventory of the items seized, on the bed in defendant's room, locked the door to the residence, and called Mumford to inform her that she could return to the residence.
Mumford testified that she did not find any papers on defendant's bed or elsewhere in the apartment. She explained that upon her return to the apartment, defendant's "bed was over by the window[,]" . . . "[t]he box spring was off, [and] the only thing that was left was the frame."
On September 28, 2011, five months after the search warrant was executed and three weeks after defendant was indicted, Detective Powell forwarded a copy of the Return of Search Warrant, along with an inventory of the items seized, dated September 28, 2011, to the chambers of the judge who issued the search warrant, but only after the judge's secretary informed Detective Powell that she had yet to receive a copy of the Return of Search Warrant. According to Detective Powell, he submitted the original Return of Search Warrant to the judge's chambers at a much earlier date, but he had not retained a copy of the documents. He could not recall the date when he delivered the original copy to the judge's chambers. Therefore, in response to the judge's request, he re-created it on September 28. Defense counsel did not receive the original document in discovery, despite repeated requests, but the court provided him with the re-created document on September 28.
Defendant argued that failure to follow the requisite procedures required suppression of the evidence seized under the warrant. The State, relying upon State v. Parsons, 83 N.J. Super. 430, 445 (1964), urged that the failure to perform ministerial acts, such as delivering a copy of the Return of Search Warrant to the issuing court, does not nullify the warrant or render the search unconstitutional.
In her oral decision, the motion judge, who also was the judge who issued the search warrant, credited Mumford's testimony. She discredited Detective Powell's testimony that he left a copy of the search warrant on the premises and promptly delivered the Return of Search Warrant to her chambers. The motion reasoned:
[A]s I review this matter, and I see that this was not a properly executed search warrant, although the search warrant itself, the four corners of the warrant are not being challenged, it's the execution of the warrant that was challenged.This appeal followed.
And, in considering that, I do find that as the [United States] Supreme Court pointed out in . . . [Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1964)] . . . ["]nothing can destroy a government more quickly than its[] failure to observe its[] own laws, or worse, it[]s disregard of its[] existence.["] . . .
But, in any event, by not complying with the requirements and the standards and procedures in the execution of that warrant, I do find that this should be suppressed; so, I am going to grant the [m]otion to [s]uppress. I am basing this on credibility. I'm basing this on the fact that I do not find that it was properly and appropriately executed according to the protocols. . . .
. . . .
I made the determination to pierce the search warrant and to grant the [m]otion to [s]uppress in this case in order to [e]nsure that this does not continue to happen. It is not appropriate for a search warrant to be executed, that has been properly granted, for the officer not to give a copy of it to the person that occupied the premises. . . .
The State raises the following points for our consideration:
POINT I
IN THE EVENT A COPY OF THE SEARCH WARRANT AND RETURN OF SEARCH WARRANT IS NOT LEFT AT THE PREMISES THE PROPERTY IS TAKEN FROM, THE REMEDY IS NOT SUPPRESSION OF THE EVIDENCE SEIZED AS A RESULT OF THE SEARCH.
POINT II
THE LAW DIVISION JUDGE'S RULING THAT FAILURE TO LEAVE A COPY OF [THE] RETURN OF SEARCH WARRANT AT THE RESIDENCE AND FAILURE TO TIMELY FILE IT WITH THE COURT REQUIRES SUPPRESSION OF ANY AND ALL EVIDENCE SEIZED AS A RESULT OF THE SEARCH WARRANT IS AN ERROR OF LAW AND IN DIRECT CONFLICT WITH STATE V. PARSONS.
In reviewing an order granting or denying a motion to suppress evidence, we are obliged to defer to the motion judge's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007). However, no special deference is accorded to the motion judge's legal conclusions. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004); State v. Ventura, 353 N.J. Super. 251, 258 (App. Div. 2002).
"[O]ur courts have been reluctant to invalidate search warrants based on confusion over jurisdiction or other issues that do not implicate probable cause or the neutrality of the issuing judge." State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 (2010)(stating technical errors such as the territorial jurisdiction of the issuing judge "would not vitiate the validity of the warrant"). In addition, absent "bad faith, no search or seizure made with a search warrant shall be deemed unlawful because of technical insufficiencies or irregularities in the warrant or in the papers or proceedings to obtain it, or in its execution." R. 3:5-7(g) (emphasis added).
Defendant does not challenge the probable cause supporting the search warrant before the motion judge. Rather, defendant posited that his Fourth Amendment rights were violated because of the procedural irregularities in the execution of the search warrant. Rule 3:5-5(a), which governs the procedure for executing and returning a search warrant with inventory, states, in pertinent part:
The officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property is taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made and verified by the officer executing the warrant in the presence of the person from whom or from whose premises the property is taken or, if such person is not present, in the presence
of some other person. The judge shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
Our courts have addressed the effect of noncompliance with technical requirements regarding the issuance, recordation, and execution of a search warrant in the context of the admissibility of evidence procured under its authority. In State v. Valencia, 93 N.J. 126, 130 (1983), the Court considered whether suppression of evidence was warranted in the context of a telephonic warrant request in which the officer read his unsworn affidavit to a judge and was not placed under oath. The Court explained that "[c]ourts in this State consistently have maintained that strict adherence to the protective rules governing search warrants is an integral part of the constitutional armory safeguarding citizens from unreasonable searches and seizures." Id. at 134. However, the Court noted:
Noncompliance with the rules can be tolerated only if it is insubstantial. Thus, as long as the objectives underlying the procedural requirements that govern the application, issuance, execution, filing and return of the search warrants are not fundamentally compromised, a slight departure from strict compliance with the rules will not invalidate the search.
[Ibid.]
The Court ultimately suppressed the evidence because the applicant had not appeared personally before the issuing judge, the application was supported by unsworn testimony read to the issuing judge over the telephone by an unsworn officer, and the warrant had not been contemporaneously recorded in writing. Id. at 135. The Court termed these procedural deficiencies as a "wholesale departure from the search warrant rule" which "subvert[] the reliability of the decisional process . . . ." Id. at 136.
The same cannot be said for the procedural deficiencies here. We accept the trial judge's factual finding discrediting the officer's testimony that he left a copy of the inventory on defendant's bed and that he promptly filed the Return of Search Warrant. The judge had the opportunity to observe the officer's testimony under direct and cross-examination and therefore has the "feel" of the case. State v. Stas, 212 N.J. 37, 49 (2012) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). That being said, however, the judge acknowledged that there was no challenge to the probable cause basis for issuance of the search warrant. It was supported by a sworn affidavit from Detective Powell and it was executed at the time and place indicated in the warrant.
Furthermore, defendant does not challenge the veracity of the re-created document. Moreover, assuming, as the motion judge apparently found, Detective Powell did not contemporaneously prepare the search warrant inventory, defendant does not raise a question about whether the items listed in the re-created inventory were actually found in his residence. Rather, defendant only alleges the failure to comply with the procedural requirements of Rule 3:5-5(a) requires suppression of the evidence seized. We disagree.
The technical violations which occurred here are ministerial missteps that we have previously rejected as a basis to invalidate an otherwise valid search warrant. See State v. Pointer, 135 N.J. Super. 472, 478-479 (App. Div.), certif. denied, 69 N.J. 79 (1975)(holding that failure to file the affidavit and warrant with the office of the county clerk and failure to deliver a written copy of the search warrant to the party whose premises was searched until the following day does not require suppression of the fruits of the search); State v. Harris, 98 N.J. Super. 502, 505 (App. Div.) (requiring the filing of search warrants and supporting affidavits with county clerk is directory only), certif. denied, 51 N.J. 396 (1968). We discern no basis, on this record to depart from such reasoning here.
Finally, defendant's argument that a violation of Rule 3:5-5(a) is akin to failure to adhere to the "knock-and-announce" provision of a search warrant is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Reversed and remanded for further proceedings. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION