Opinion
DOCKET NO. A-5604-12T4
07-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KHALIEF JONES, a/k/a JONES KHALIEF J., Defendant-Appellant.
Samuel Feder, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Feder, of counsel and on the briefs). Jennifer M. Eugene, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Ms. Eugene, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-02-0140. Samuel Feder, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Feder, of counsel and on the briefs). Jennifer M. Eugene, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Ms. Eugene, of counsel and on the brief). PER CURIAM
Defendant Khalief Jones appeals his conviction, following a guilty plea, for first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). He argues that the trial judge erred in denying his motion to suppress evidence. We affirm.
I.
We discern the following facts and procedural history from the record on appeal, including the transcripts of the hearing on the motion to suppress.
In April 2009, Mercer County Prosecutor's Office Detective Brian Kiely received information from a confidential informant that he had purchased cocaine from Jones over a period of six months from his apartment in Ewing. Kiely arranged for the informant as well as law enforcement officers to make controlled purchases of cocaine from Jones at the apartment.
The confidential informant had never been used by the Prosecutor's Office prior to the instant case.
Kiely's investigation revealed that Jones had a prior criminal history, including a five-year prison sentence for third-degree burglary; a five-year sentence for third-degree manufacturing a controlled dangerous substance; a four-year sentence for aggravated assault in the second degree; and a seven-year sentence for second-degree conspiracy to commit robbery. Jones also had a juvenile record.
Kiely prepared an affidavit in support of an application for a no-knock search warrant to search Jones's apartment. The affidavit set forth the details of the controlled purchases. Kiely also explained that on April 22, he received a call from Detective Searing from the United States Marshals Service. Searing related that a confidential informant, who had provided reliable information in the past, had informed him that Alex Orozco was living in Jones's apartment. Orozco had outstanding warrants for murders involving guns. Orozco also had an extensive criminal history, which included five felony convictions. He was considered armed and dangerous by Searing. Kiely cited Jones's prior criminal record and Orozco's possible residence at Jones's apartment as reasons for the no-knock warrant. The judge signed the warrant on the same day. The sufficiency of the warrant is not an issue on appeal.
The Prosecutor's Office requested Lieutenant Harry Harbourt, who supervised the Mercer County Sheriff's Emergency Response Team, to prepare a plan for executing the no-knock warrant. Harbourt was personally familiar with the location at which the warrant would be executed. He decided to use a flash-bang device while executing the warrant, based on Jones's criminal history, which he understood included aggravated assault, robbery and weapons possession, and the possibility that Orozco might be inside the apartment. Harbourt had not read the affidavit prepared by Kiely, but derived his information from other officers involved in the investigation.
The aggravated assault involved a bottle, rather than guns.
When asked if his decision to use a flash-bang would have changed had he known Jones was not being investigated for weapons possession, Harbourt responded: "It's very difficult to say yes or no. There are a lot of factors that affect [my decision]." He then added that "if no one . . . had told [him] that [Jones] was supposed to have a weapon in his possession or this was an investigation around weapons," his decision making would have "of course" been different.
Harbourt described a flash-bang device as a pyrotechnic device that emits a bright flash, of six to ten million candela of light and a "very loud bang," at approximately 174 decibels. When thrown into a room, it stuns the occupants, allowing the police to subdue them more easily. The flash-bang device itself does not explode or fragment, nor does it emit flame. However, it does become extremely hot. Harbourt and the members of his team had training and experience in the use of flash-bang devices.
The team had an oral rather than written policy regarding the use of flash-bang devices. The policy was that if an officer was concerned that someone might be injured inside the location to be searched, he or she would yell "no bang" and the deploying officer would throw the device outside or disable it.
Harbourt also explained that members of the tactical response team have different roles. The "breacher" breaks down the door, and is followed by the "bunker," who carries a ballistic shield. Other members of the tactical team follow behind the bunker with either weapons or tools.
At the suppression hearing, the judge qualified Harbourt as an expert in the use of flash-bang devices and police tactics. --------
On April 22, the day of the raid, Harbourt's team was comprised of nine officers. They had received a pre-raid surveillance report the day before, and an update just prior to the execution of the warrant. The reports contained no information to suggest that there were any small children, elderly people, or dogs in Jones's apartment. The team providing surveillance was stationed outside Jones's apartment. Harbourt arranged for standby medical personnel, as well as a fire extinguisher, at the staging area.
Harbourt was given permission to execute the no-knock warrant shortly after 5:30 p.m. After confirming that they were at the correct location, the breacher used a battering ram to break down the door. The bunker then held up a ballistic shield, while Harbourt and another team member crouched behind the shield and observed the interior of the apartment "for several seconds." The apartment appeared empty and there were no apparent hazards.
Officer William Perez, who was assigned to throw the flash-bang device, entered the apartment, assessed the situation, and tossed the device a short distance into the apartment, in an area that the police "could see and could control." Approximately two seconds later, the team entered and seized Jones in the living room, close to where the flash-bang device had been deployed. Although a second male, Che Barrow, was also apprehended, Orozco was not in the apartment. Jones and Barrow were both arrested.
During the follow-up search, the team located a dog, two chinchillas, and a python. They were "caged and not in the area where the device was deployed, but further back into the residence."
Jones was indicted in February 2010, and charged with third-degree possession of a controlled substance (cocaine), N.J.S.A. 2C:35(a)(1) (count one); first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of mushrooms containing psilocin, N.J.S.A. 2C:35-10(a)(1) (count three); third-degree possession of mushrooms containing psilocin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(5) (count four); fourth-degree possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(1) (count five); third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count six); possession of a model TZ75-Series 88 9mm semi-automatic handgun, while in possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:39-4.1(a) (count seven); and second-degree certain persons not to have a firearm, N.J.S.A. 2C:39-7(b) (count eight).
In November 2011, Jones moved to suppress the evidence seized during the execution of the warrant. An evidentiary hearing took place on four hearing days between November 2011 and March 2012.
The State presented the facts as outlined above. Jones testified on his own behalf that the door hit Barrow's head as it was breached, after which the police threw the flash-bang device through Barrow's legs. Jones also testified that he lived with his girlfriend and had an infant, but neither of them were in the apartment at the time of the incident.
In May, the judge placed an oral decision on the record, which was followed by a written opinion, explaining his reasons for denying the motion to suppress. The judge found Jones's testimony incredible. He explained that the testimony conflicted with the contemporaneous reports, that it was neither "logical [n]or probable," that it was self-serving, and that given the length of time since the event, and his lack of a report to refresh his memory, his recollection was unreliable. The judge also declined to credit Jones's testimony that he defecated himself as a result of the flash-bang device, explaining that the physical evidence did not support that testimony. The judge found that neither arrestee was injured and that the apartment was not damaged.
The judge noted a slight factual discrepancy as to where the flash-bang device actually landed. Noting Perez's poorer vantage point and the consistency between Harbourt and Jones's testimony, the judge found Harbourt's version credible and concluded that all versions established that the device was thrown into an area "clearly visible" by the team.
The judge explained that it was "significant that the officers were trained to yell 'no bang' even to a second before the device was deployed, [and that] even after the safety device was pulled to activate it, that the device could have been thrown in a safe location." He also found that "there was a tactical plan devised by [Harbourt] for the safe execution of this search warrant including the flash-bang device." The judge added that the team had appropriate safety precautions, such as medical staff and a fire extinguisher, and that the team members were highly trained.
The judge further explained that, although Harbourt was mistaken in his belief that the operation was being carried out based on Jones's weapons offenses, he nevertheless had a "basis to find that [Jones] was a violent offender" because of his convictions for violent offenses. The judge, therefore, found the use of the flash-bang device appropriate.
With respect to the way the team used the flash-bang device, the judge found
specifically that this device was not thrown blindly into the residence, that Lieutenant Harbourt was generally familiar with the layout of this residence, that he could see the vestibule area and the area beyond that where the TV was located, and understood Investigator Perez would be throwing it into that general area which was visible to all of them. Thus, it appears it was thrown into this visible area which is somewhat between the three to five feet Lieutenant Harbourt testified to and the eight to [ten] feet Investigator Perez testified to. Either way, it appears it was an area clearly visible to those standing on the outside landing area. The court finds it was not thrown into the living room area where Investigator Perez said it landed, but closer to the TV area where both [Jones] and Lieutenant Harbourt state[d] it landed.
After articulating his factual findings, the judge applied the factors set forth in State v. Robinson, 399 N.J. Super. 400, 418 (App. Div. 2008), rev'd on other grounds, 200 N.J. 1 (2009). As to the first factor, whether the police had a protocol in place, the judge found that the team had an oral protocol, as described in Harbourt's testimony. As to the second factor, whether the protocol was sufficiently sensitive to constitutional considerations, the judge explained that the flash-bang device was only used in an area where it could be seen, and not where it might endanger children, pets, or the elderly. Third, the judge found that the officers complied with their protocols, thus satisfying the third factor.
The judge distinguished State v. Fanelle, 404 N.J. Super. 180, 192 (Law Div. 2008), in which the Law Division found that the use of a flash-bang device was unreasonable. He found that, unlike the police in Fanelle, who threw two or more flash-bang devices blindly into the residence, id. at 186, the team in this case threw only one and only after carefully assessing the situation. The judge also noted that, unlike the defendant in Fanelle, who had only decades-old convictions for minor offenses, id. at 190-91, Jones's criminal background supported the view that he was potentially dangerous. Finally, the judge observed that, unlike the defendant in Fanelle, Jones did not offer an expert to testify that, under the circumstances, use of the flash-bang device was not justified. Id. at 192.
On December 3, 2012, Jones accepted the State's plea offer and pled guilty to first-degree possession of cocaine and the certain persons offense. He was subsequently sentenced to an aggregate term of twelve years of incarceration. The remaining counts were dismissed. This appeal followed.
II.
Jones raises the following issue on appeal:
POINT I: THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OBTAINED AS A RESULT OF THE POLICE'S UNREASONABLE EXECUTION OF A SEARCH WARRANT ON JONES'S HOME USING A FLASH-BANG
The Supreme Court explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
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 (2009) (alteration in original) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Those findings warrant particular deference when they are "'substantially influenced by [the trial judge'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, supra, 192 N.J. at 244).Our review of the motion judge's legal conclusions is plenary. Ibid. (citing State v. J.D., 211 N.J. 344, 354 (2012); State v. Gandhi, 201 N.J. 161, 176 (2010)).
[State v. Rockford, 213 N.J. 424, 440 (2013).]
Both the United States Constitution, U.S. Const. amend. IV, and the New Jersey Constitution, N.J. Const. art. 1, ¶ 7 protect an individual's reasonable expectations of privacy by requiring police to obtain a warrant from a neutral magistrate before conducting a search or seizure. E.g., State v. Hinton, 216 N.J. 211, 228 (2013). "[A] search executed pursuant to a warrant is presumed valid." State v. Jones, 179 N.J. 377, 388 (2004). However, the police must execute a warrant in a reasonable way. State v. Johnson, 168 N.J. 608, 626 (2001).
In Rockford, the Court outlined the nature of the inquiry with regard to how a warrant is executed.
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 (citing Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 1918, 131 L. Ed. 2d 976, 982 (1995)). If police actions in executing a warrant are objectively reasonable, there is no constitutional violation. Illinois v. Rodriguez, 497 U.S. 177, 185, 188, 110 S. Ct. 2793, 2799, 2801, 111 L. Ed. 2d 148, 159, 161 (1990); State v. Maristany, 133 N.J. 299, 305 (1993). Evaluating the
constitutionality of police conduct in executing a warrant, "the basic test under both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution is the same: was the conduct objectively reasonable in light of 'the facts known to the law enforcement officer at the time of the search.'" State v. Handy, 206 N.J. 39, 46-47 (2011) (quoting State v. Bruzzese, 94 N.J. 210, 221 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695-96 (1984)). The terms of the warrant must be strictly respected. "It is well settled that officers searching a person's home, car or belongings under authority of a search warrant are authorized to use only those investigatory methods, and to search only those places, appropriate in light of the scope of the warrant." State v. Reldan, 100 N.J. 187, 195 (1985).
[Rockford, supra, 213 N.J. at 441.]
Although the warrant at issue in Rockford was a "knock and announce warrant," the Court observed that
[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."
[Id. at 442 n.6 (quoting Johnson, supra, 168 N.J. at 619).]
The Court then addressed the use of the flash-bang device, which in Rockford had been used outside of the home, before the police knocked and announced themselves. The Court rejected the bright-line rule, established in Robinson, supra, 399 N.J. Super. at 418, that a flash-bang device cannot be used in connection with a knock-and-announce warrant, holding instead 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 other settings, the risk to officer safety or the threat that evidence could be lost may justify the use of the device.The Court also observed that "meticulous police planning should be encouraged." Id. at 449. Having found that the police acted appropriately, the Court reversed the Appellate Division majority's decision overturning Rockford's conviction. Id. at 450.
[Rockford, supra, 213 N.J. at 447-48 (footnote omitted).]
Having reviewed the judge's factual findings in light of the record before us, we find them supported by the evidence adduced at the suppression hearing, as informed by the judge's reasonable credibility determinations. He noted that the police officers made concessions in their testimony, but testified that they continued to believe that the flash-bang device was necessary. Applying those factual findings to the law, as most recently articulated by the Supreme Court in Rockford, we find no error in the decision by the judge to deny the motion to suppress. The police had an objectively reasonable basis to use a flash-bang device based on the belief that Jones was a violent offender, despite Harbourt's inaccurate understanding that he had weapons offenses, and was living with an individual suspected of murder. They used the devise with adequate preparation, and acted with care in its actual use. There were no injuries to the occupants of Jones's apartment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION