Opinion
DOCKET NO. A-2318-14T3
02-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAHEEN D. WILSON, a/k/a RAHEEM WILSON, MARZETT WILSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-04-0480. Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After his motion to suppress evidence was denied, defendant Raheen D. Wilson pled guilty pursuant to a negotiated plea agreement to third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1). Defendant was sentenced in accordance with the terms of his plea agreement to time served. Defendant now raises the following point on appeal:
POINT I
BECAUSE THE OFFICERS DID NOT ALLOW A REASONABLE AMOUNT OF TIME TO ELAPSE BEFORE ENTERING THE RESIDENCE USING FORCE, AND BECAUSE THE DEPLOYMENT OF A FLASH-BANG DEVICE INDOORS WAS UNREASONABLE, THE EXECUTION OF THE SEARCH WARRANT WAS UNCONSTITUTIONAL.
Finding no merit to this argument, we affirm. We glean the following facts from the testimony at the hearing on the motion to suppress. On January 11, 2013, Detective Christopher Vranesevich obtained a search warrant for a premises located on Cummings Avenue in Trenton. The warrant authorized the seizure of "controlled dangerous substances and/or associated paraphernalia" and permitted execution of the warrant "by using force, if necessary, after knocking and announcing your authority."
As defendant does not challenge the probable cause supporting the warrant, we need not discuss details of the investigation.
The Trenton Police Department sought the tactical assistance of the New Jersey State Police (NJSP) in executing the search warrant. On January 14, 2013, at 4:30 p.m., a team of nine officers led by NJSP Sergeant Kevin Walsh approached the premises. Walsh testified that he opened the screen door, knocked on the main wood door, and announced he was from the State Police and had a search warrant. There was no answer and Walsh waited between ten and sixty seconds before telling another trooper to breach the door. Trooper Josh Graber then used a battering ram to force the door open to allow the other officers to enter.
On cross-examination, Sergeant Walsh was asked whether he authorized the use of a flash-bang device upon entry. Walsh responded that the other members of his team are permitted to use a flash-bang device if they deem it "tactically needed to create a diversion." Defendant and two others were found inside the house and detained. Detective Vranesevich testified that marijuana, a handgun, hollow point bullets, and shotgun shells were recovered during the search.
A flash-bang has been described as a "device that emits an intensely bright flash and a percussive, loud blast of sound." State v. Rockford, 213 N.J. 424, 454 (2013) (LaVecchia, J., dissenting). --------
The motion judge determined that Sergeant Walsh's testimony that he knocked and waited ten to sixty seconds before ordering the door breached, was credible. Based on his testimony, the judge found nothing to indicate that the warrant was not executed by way of first a knock and then announcement of the police presence with a search warrant. The judge denied defendant's motion to suppress.
On appeal, defendant argues that the judge did not address whether the length of time the officers waited was reasonable. Defendant also claims the judge did not address the conduct of the officers in using a flash-bang device.
"[A] search executed pursuant to a warrant is presumed to be valid and . . . a 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) (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). Defendant concedes probable cause and argues that the wait time of between ten and sixty seconds was unreasonable.
In judging reasonableness of the time lapse between the announcement and the officers' forced entry in a knock-and-announce warrant, our Supreme Court held that the wait period need not be extensive in length and should depend on the circumstances of a given case. State v. Robinson, 200 N.J. 1, 16 (2009). The Court noted 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[.]" Id. at 17 (quoting Hudson v. Michigan, 547 U.S. 586, 590, 126 S. Ct. 2159, 2163, 165 L. Ed. 2d 56, 63 (2006)).
In finding that the officers knocked and announced their presence, the motion judge noted that there had been "no testimony to the contrary." We agree. Defendant's claim that the officers did not wait a reasonable period before the forced entry is untethered to any record evidence, and he has failed to show that the execution of the search warrant was in any way unreasonable.
Defendant also claims the manner in which the search was executed was unreasonable because the police used a flash-bang device "with no apparent legitimate rationale." Although defendant's counsel briefly touched on the use of the flash-bang device during his cross-examination of Sergeant Walsh, it was not mentioned again during the hearing and counsel failed to raise the issue before the motion judge as a basis for the suppression of the evidence seized. Defendant's failure to raise the flash-bang issue during the motion to suppress "denied the State the opportunity to confront the claim head-on; it denied the trial court the opportunity to evaluate the claim in an informed and deliberate manner; and it denied any reviewing court the benefit of a robust record within which the claim could be considered." Robinson, supra, 200 N.J. at 21. As the Robinson Court held, it would be "inappropriate to consider, for the first time on appeal, defendant's belated challenge to the manner in which the warrant was executed." Id. at 22.
Recently, the Court rejected the argument that "the State must disprove issues not raised by the defense at a suppression hearing." State v. Witt, 223 N.J. 409, 418 (2015). In Witt, the defendant had not challenged the validity of a motor vehicle stop at the suppression hearing, or elicited any testimony on the issue. Id. at 418-19. The Court found that he was definitively barred from raising the issue on appeal and chided that we "should have declined to entertain the belatedly raised issue." Id. at 418-19. Following that clear directive, we decline to consider this claim.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION