SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4414-01T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ARTHUR JONES,
Defendant-Appellant.
Submitted January 29, 2003 - Decided February 28, 2003
Before Judges Kestin, Fall and Weissbard.
On appeal from the Superior Court of
New Jersey, Law Division, Cape May
County, 01-07-0456.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Sandra K.
Manning, Designated Counsel, of counsel
and on the brief).
Peter C. Harvey, Acting Attorney General,
attorney for respondent (Johanna Barba,
Deputy Attorney General, of counsel and
on the brief).
The opinion of the court was delivered by
WEISSBARD, J.A.D.
A nine-count indictment charged defendant, Arthur Jay
Jones,See footnote 11 with third-degree possession of cocaine with intent to
distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count
one); third-degree conspiracy to possess cocaine with intent to
distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(3), and
N.J.S.A. 2C:5-2 (count two); second-degree possession of cocaine
with intent to distribute within 500 feet of public property,
N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5a(1) (count three);
second-degree conspiracy to possess cocaine with intent to
distribute within 500 feet of public property, N.J.S.A. 2C:35-
7.1, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:5-2 (count four);
fourth-degree possession of drug paraphernalia with intent to
distribute, N.J.S.A. 2C:36-3 (count five); fourth-degree
conspiracy to possess drug paraphernalia with intent to
distribute, N.J.S.A. 2C:36-3 and N.J.S.A. 2C:5-2 (count six);
second-degree employing a juvenile in a drug distribution scheme,
N.J.S.A. 2C:35-6 (count seven); third-degree possession of
cocaine, N.J.S.A. 2C:35-10a(1) (count eight), and third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4a (count
nine).
After denial of his motion to suppress evidence obtained
pursuant to a search warrant, defendant pled guilty to third-
degree possession of a controlled dangerous substance (count
eight). In return for his guilty plea, the State agreed to
dismiss the remaining counts of the indictment and recommended
that defendant be sentenced to a four-year term of imprisonment
consecutive to any violation of probation defendant was then
serving.
On March 11, 2002, defendant was sentenced, in accordance
with the terms of the plea bargain, to a four-year term.
Appropriate penalties were also imposed.
On appeal defendant raises the following arguments:
POINT I
THE JUDGE BELOW ERRED IN DENYING THE MOTION
TO SUPPRESS EVIDENCE SINCE THE OFFICER FAILED
TO ARTICULATE A REASONABLE SUSPICION IN THIS
PARTICULAR CASE THAT ISSUANCE OF THE NO-KNOCK
SEARCH WARRANT WAS NECESSARY TO PREVENT
DESTRUCTION OF EVIDENCE OR TO PROTECT THE
OFFICERS' SAFETY.
POINT II
THE JUDGE BELOW ERRED IN DENYING THE MOTION
TO SUPPRESS SINCE PROBABLE CAUSE COULD NOT BE
DETERMINED FROM THE FACTS ALLEGED IN THE
WARRANT APPLICATION BECAUSE THE INFORMANT WAS
ADMITTED TO BE OF UNKNOWN RELIABILITY AND DID
NOT ALLEGE FACTS WITH SPECIFICITY.
POINT III
THE JUDGE BELOW ERRED IN DENYING THE MOTION
TO SUPPRESS BECAUSE THE WARRANT AUTHORIZING
THE SEARCH OF DEFENDANT-APPELLANT ARTHUR J.
JONES WAS OVERBROAD AND NO EXIGENT
CIRCUMSTANCES EXISTED TO JUSTIFY THE SEARCH.
POINT IV
THE JUDGE BELOW INCORRECTLY WEIGHED THE
AGGRAVATING AND MITIGATING FACTORS, THEREBY
IMPOSING A LONGER SENTENCE THAN WARRANTED BY
THE OFFENSE.
We agree that the search in question was unlawful for both
of the reasons stated in defendant's Points I and II, absence of
probable cause for the warrant and insufficient facts supporting
the "no-knock" entry provision in the warrant.
The facts elicited during the suppression motion were as
follows. During the week of June 18, 2001, members of the Cape
May County Prosecutor's Office Narcotics Task Force received
information from a confidential informant of "unknown
reliability," asserting that Darryl Jones, Kenneth Powell, and
Stephanie Williams were distributing drugs from a single-family
residence located at 4009 Park Boulevard. The informant also
stated that Jones, Powell, and Williams were selling drugs from
the Sportsmen's Tavern at 3711 New Jersey Ave., in Wildwood.
The police, with the aid of the informant, conducted three
controlled purchases of cocaine from individuals at the premises
at 4009 Park Boulevard. During these controlled buys, officers
would photocopy and record serial numbers of money to be used in
the buy. They would search the informant to make sure that heSee footnote 22
had neither drugs nor money on him when he entered the premises.
The police then would provide the informant with the marked,
"buy" money. The informant would then proceed directly to 4009
Park Boulevard, which was constantly under surveillance by
Narcotics Task Force Agents. While inside, the informant would
allegedly purchase rock cocaine from Darryl Jones and Williams.
When the informant exited the building, he immediately reported
to an undercover officer, who again searched him to make sure
that the money-drug exchange had been made. The controlled
purchase was repeated twice using the same procedureSee footnote 33. The
informant identified Darryl Jones and Powell as the men who sold
the cocaine to him, and also identified Williams as being present
during at least one of the controlled sales.
Task Force members performed criminal background checks on
Powell and Darryl Jones, and found that Powell had three prior
drug convictions and Jones had been arrested twice previously for
distribution of narcotics and distribution of drugs within 1000
feet of a school. Jones had also been previously arrested for
unlawful possession of a weapon and aggravated assault with a
weapon.
On June 22, 2001, Narcotics Task Force Agent Darrell Shelton
applied for a search warrant before a municipal court judge.
Agent Shelton sought authorization to search the premises located
at 4009 Park Boulevard. Additionally, the application sought
authority to search the persons of Darryl Jones, Stephanie
Williams, Kenneth Powell, and "[a]ny person reasonably believed
or identified to have [a] connection to illegal property or
contraband during the execution of the search warrant."
Agent Shelton also requested that the warrant be executed
"without knocking and announcing the identity and purpose of the
law enforcement officers." This request was made due to the
"easy disposal of the evidence" and, based on the previous
arrests of Darryl Jones for assault and unlawful possession of a
weapon, for the "physical protection of the police officers" when
executing the warrant. On the same date, the judge granted Agent
Shelton the "no-knock" warrant.
Immediately before the police executed the search warrant,
the confidential informant performed one more "controlled buy,"
to ensure the continued presence of drugs at the location. After
the final "buy," police executed the warrant and found defendant,
Arthur Jones, seated at a table in the apartment. They found
cocaine, plastic baggies, and a razor blade on the table.
Defendant was then arrested and searched. Found on defendant's
person were two of the marked bills used in the "controlled
buys."
Probable cause is "a flexible, nontechnical concept." State
v. Kasabucki,
52 N.J. 110, 116 (1968). Our jurisprudence
"characterizes probable cause 'as a common-sense, practical
standard for determining the validity of a search warrant.'"
State v. Sullivan,
169 N.J. 204, 211 (2001) (quoting State v.
Novembrino,
105 N.J. 95, 120 (1987)). When a search is conducted
pursuant to a warrant, the burden of proving the invalidity of
that search is on the defendant. The defendant must show "that
there was no probable cause supporting the issuance of the
warrant or that the search was otherwise unreasonable." State v.
Valencia,
93 N.J. 126, 133 (1983). When a search is conducted
with a warrant, it is presumed valid and a reviewing court must
give substantial deference to the determination of the issuing
judge. Sullivan, supra, 169 N.J. at 211. A warrant both cloaks
the search with "an aura of prima facie legality" and constitutes
a substantial factor in favor of a conclusion of validity.
Kasabucki, supra, 52 N.J. at 123; see also State v. Mark,
46 N.J. 262, 273 (1966); State v. Jones,
308 N.J. Super. 15, 30 (App.
Div. 1998).
In this case, the chain of events leading to the issuance of
the warrant began with information received from a confidential
informant of unknown reliability. Thus, the informant's
information could only be credited if it were corroborated by
independent investigation. Novembrino, supra, 105 N.J. at 113.
The follow-up investigation here involved three "controlled buys"
between June 18 and June 22. In State v. Sullivan, supra, the
Court addressed the validity of a search warrant based, as here,
upon information from an informant of untested reliability and
two controlled buys. In that case, the location in question was
a first floor apartment in a three-story building containing six
apartments. The informant had provided the police with the first
name and physical description of the alleged drug dealer, as well
as a telephone number for the apartment and a description of the
building. Id. at 207-09. After the two controlled buys the
police obtained gas and electric records which listed the contact
phone number for the subscriber, which was the same number the
informant had supplied. In addition, the police tested the
substance obtained by the informant as a result of each buy and
confirmed that it was cocaine.
The Court rejected "the State's suggestion that a controlled
buy conclusively establishes probable cause," opting instead for
a totality of circumstances approach which does not focus
"exclusively on any one factor." Id. at 216. The Court
concluded that the corroborative information gleaned from the gas
and electric records as to the telephone number and the
confirmation that the substance was cocaine, demonstrated
probable cause. Id. at 216.
A comparison of the facts in Sullivan with those present
here is instructive, if not dispositive. In this case the
building in question was a single family residence rather than
the multi-apartment dwelling in Sullivan. As a result, no
question arises as to whether the informant went to a residence
other than the one for which the warrant was obtained. On the
other hand, unlike Sullivan, the officers here did nothing to
confirm that the suspects, Darryl Jones, Kenneth Powell or
Stephanie Williams, lived in or were otherwise connected to the
residence. No electric or gas records, phone records or tax
records were checked. The record check made was for criminal
histories, which revealed that Powell had at least two drug
distribution convictions, the last being only eighteen months
earlier. Darryl Jones also had two prior drug related arrests
but no record of conviction for those offenses.
Most significant, in our view, is that, in stark contrast to
Sullivan, the officers in this case did nothing - at least as far
as the warrant application revealed - to confirm that the
substance brought to them by the informant after his "buy" was
actually cocaine. The only statement in the affidavit with
respect to each incident was that the informant "turned over an
amount of suspected rock cocaine." While we understand that a
full laboratory test is not available under the time constraints
of an ongoing investigation, not even a routine field test was
conducted, as apparently had been done and was considered a
significant corroborating circumstance in Sullivan. The absence
of such confirmation significantly, if not totally, undermines
the normal persuasiveness of a controlled buy. Id. at 217. It
is fundamental to a controlled buy that the substance bought be a
controlled substance. While that showing need not be made with
absolute certainty, there must at least be a scientific
probability that the substance is what it is asserted to be.
Even according the warrant the substantial deference to
which it is entitled, id. at 211, we conclude that probable cause
was not established. We also conclude that the warrant was
invalid because it was executed, according to its terms, without
any pre-entry announcement of purpose, i.e., "without knocking
and announcing the identity and purpose of the law enforcement
officers."
In State v. Johnson,
168 N.J. 608, 615 (2001), the Court
briefly traced the history of the rule:
The requirement that law enforcement
officers knock and announce their presence
before entering a dwelling predates our
federal and State Constitutions. As a long-
standing component of the common law, the
"knock-and-announce" rule reflects "the
ancient adage that a man's house is his
castle." Miller v. United States,
357 U.S. 301, 307,
78 S. Ct. 1190, 1194,
2 L. Ed.2d 1332, 1337 (1958). The rule was pronounced
about 400 years ago in Semayne's Case,
79 Eng. Rep. 194 (K.B. 1603), although some
commentators trace its legal origin to an
earlier period in the thirteenth century,
around the time of the Magna Carta. Wilson
v. Arkansas,
514 U.S. 927, 932 n. 2,
115 S.
Ct. 1914, 1917 n.2,
131 L. Ed.2d 976, 981
n.2 (1995).
In Miller, supra, 357 U.S. at 307, 78 S. Ct. at 1194-95, 2 L. Ed.
2d at 1337, the Court took note of the most eloquent articulation
of the principle, attributed to William Pitt in a parliamentary
debate in 1763:
The poorest man may in his cottage bid
defiance to all the forces of the crown. It
may be frail; its roof may shake, the wind
may blow through it; the storm may enter; the
rain may enter; but the King of England
cannot enter - all his force dares not cross
the threshold of the ruined tenement!
"The common-law knock-and-announce principle was woven
quickly into the fabric of early American law." Wilson v.
Arkansas, supra, 514 U.S. at 933, 115 S. Ct. at 1917, 131 L. Ed.
2d at 981. The rule, whose applicability in New Jersey was at
first grudgingly acknowledged, State v. Smith,
37 N.J. 481, 497-
500 (1962), State v. Doyle,
42 N.J. 334, 345 (1964), but finally
conceded in State v. Fair,
45 N.J. 77 (1965), serves a number of
purposes: 1) "decreasing the potential for violence"; 2)
"protection of privacy"; and 3) "preventing the physical
destruction of property." 2 Wayne R. LaFave, Search and Seizure
§ 4.8(a) at 599 (3rd ed. 1978), quoted with approval in State v.
Johnson, supra, 168 N.J. at 616.
Although the knock-and-announce requirement is mandated by
centuries of common law as well as our state and federal
Constitutions, it is not absolute. In State v. Fair, supra, the
Court outlined the three main exceptions to the knock-and-
announce requirement. Police do not need to comply with the
knock-and-announce rule if: "1) immediate action is required to
preserve evidence; 2) the officer's peril would be increased; or
3) the arrest would be frustrated." 45 N.J. at 86 (citations
omitted). However, in State v. Johnson, supra, 168 N.J. at 617,
the Court recognized that these exceptions could "swallow the
rule" that police must first announce their presence,
"particularly in drug investigations in which there are often
grounds to suspect that immediate action is required to preserve
evidence, protect the safety of police officers, or effectuate a
successful arrest." The Court noted that the United States
Supreme Court had stated that "there can be no blanket exception
to the knock-and-announce rule in felony drug cases consistent
with the Fourth Amendment. Ibid. (citing Richards v. Wisconsin,
520 U.S. 385,
117 S. Ct. 1416,
137 L. Ed.2d 615 (1997)).
Our Supreme Court, in evaluating Richards, noted:
[T]he task of courts evaluating the propriety
of a no-knock provision is to determine
whether the applying officer has articulated
a reasonable suspicion to believe that one or
more exceptions to the knock-and-announce
rule are justified. Although reasonable
suspicion is a less demanding standard than
probable cause, satisfying the doctrine of
reasonable suspicion "requires at least a
minimal level of objective justification for
[taking the police action]." Illinois v.
Wardlow,
528 U.S. 119, 123,
120 S. Ct. 673,
676
145 L. Ed.2d 570, 576 (2000). "The
officer must be able to articulate more than
an 'inchoate and unparticularized suspicion
or "hunch"' of criminal activity." Ibid.
(quoting Terry v. Ohio,
392 U.S. 1, 27,
88 S.
Ct. 1868, 1883,
20 L. Ed.2d 889, 909
(1968)).
[Johnson, supra, 168 N.J. at 618].
The Court therefore held, that: 1) police must have 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 an arrest or seizure of
evidence; 2) the officer must articulate the reasons for that
suspicion and may base those reasons on "the totality of the
circumstances with which he or she is faced"; and 3) the officer
must articulate a minimal level of objective justification to
support the no-knock entry, "meaning it may not be based on a
mere hunch." Id. at 619.
The facts of Johnson parallel the facts of the present case
to a substantial degree. In Johnson, as here, police officers
set up a controlled buy using a confidential informant. After
the buy revealed the sale of drugs from an apartment building,
the officers applied for a search warrant. In the oral
application made to the court, the applicant described the
controlled buy and informed the court that a different informant
had told him that a black male named "Earthquake" was selling
large amounts of heroin and cocaine from the apartment. The
officer also submitted a written certification outlining his
credentials and experience in drug investigations. The officer
concluded his recitation of the facts by stating, "[t]herefore
your Honor I'm requesting a no knock search warrant for [the]
officers['] safety and it means that the narcotics can be easily
[] destroyed . . . ." Id. at 612-13 (alterations in original).
The Johnson Court found the officer did not expressly
articulate any suspicion that evidence could be destroyed, nor
any particularized suspicion that the officers' safety would be
in peril if they were required to first announce their presence.
Id. at 620-21.
In the present case, Shelton, in his written application,
stated, in pertinent part:
I hereby request that the warrant be executed
. . . [a]nytime . . .[a]nd/or without
knocking and announcing the identity and
purpose of the law enforcement officers.
This request is being made for the following
reason(s): The easy disposal of the evidence
and the physical protection of the police
officers when making entry on a search
warrant in drug related cases as specifically
documented below. Additionally, the
information set forth in paragraph (e) [sic]
above which reflects a November 6, 1994
arrest of Darryl Jones by [Cape May Police
Department] for aggravated assault of a
police officer and unlawful possession of a
weapon.
The officer's first claim was that the evidence could be
easily destroyed, but, as noted in Johnson, "small quantities of
narcotics sold out of a person's home are almost always
susceptible to destruction or disposal." Johnson, supra, 168
N.J. at 620. If such a reason alone justified a no-knock entry,
"it would justify an unannounced entry in virtually every
instance involving a residential search, thereby resembling the
kind of blanket rule forbidden by Richards." Ibid. (citing State
v. Bamber,
592 So.2d 1129, 1130 (Fla. Dist. Ct. App. 1991),
approved,
630 So.2d 1048 (Fla. 1994)).
To satisfy the "destruction of evidence" exception to the
knock-and-announce rule, the police must articulate some reason
"specific to the crime, to the person under investigation, or to
some other permissible factor," that leads them to reasonably
believe that the destruction of evidence is "more than a
hypothetical possibility." Johnson, supra, 168 N.J. at 620.
In attempting to ascertain what factors may set forth a
reasonable suspicion that evidence will be destroyed, the Johnson
court looked to State v. Bilancio,
318 N.J. Super. 408 (App.
Div.), certif. denied,
160 N.J. 478 (1999), for guidance:
In Bilancio the Appellate Division considered
an application for a no-knock warrant,
concluding that it did not set forth a
reasonable suspicion that evidence would be
destroyed if the police knocked and announced
their presence before entering the premises.
In reaching that conclusion, the court stated
that "the warrant affidavit did not set forth
any information concerning the size or layout
of defendant's property, whether persons
other than defendant resided there, or
whether the police reasonably expected
defendant or other persons involved in drug
distribution to be present when the search
was conducted." [Bilancio, supra, 318 N.J.
Super.] at 417.
[Johnson, supra, 168 N.J. at 620].
As in Bilancio, none of those factors were set out in the
application for the search warrant in this case. The applying
officer simply relied on the fact that drugs are easily
destroyed. That sort of "blanket" exception is not acceptable.
See Richards, supra,
520 U.S. 385,
117 S. Ct. 1416,
137 L. Ed.2d 615; Johnson, supra,
168 N.J. 608.
Also, the applying officer articulated no particularized
suspicion that the officers' safety would be jeopardized by first
knocking and announcing their presence. The only information
provided was that Darryl Jones had been previously arrested for
"aggravated assault on a police officer and unlawful possession
of a weapon." However, the police had, on three previous
occasions, conducted controlled buys using the informant and in
none did the informant ever suggest that weapons were present in
the apartment. Other than Darryl Jones's prior arrest, the
officer offered no evidence that Jones, or any other person named
in the warrant, had a propensity for violence. Further, there
was no evidence submitted that Darryl Jones would even be present
in the apartment when the warrant was executed. The affidavit
stated that the first two drug purchases were made from Jones,
but the last was made from Kenneth Powell. It was not mentioned
whether Jones was present during the final buy.
We reject the State's contention that Darryl Jones's prior
arrest for assault and possession of a weapon supported the
issuance of the "no-knock" provision of the warrant. It is
significant that Jones was never convicted of the assault charge;
rather, he pled down to a fourth degree weapons charge.
Other jurisdictions have recognized that prior arrests do
not give rise to a "reasonable suspicion" that would permit
avoidance of the knock-and-announce requirement. In State v.
Eason,
629 N.W.2d 625 (Wis. 2001), the Wisconsin Supreme Court
found that an affidavit to search a residence without first
knocking and announcing "was not sufficiently particularized to
establish reasonable suspicion." Id. at 634. The facts of that
case are very similar to the case before us.
In Eason, the affidavit related defendant's arrest for
aggravated assault. The assault arrest was almost ten years old
at the time. The Supreme Court of Wisconsin recognized that
aggravated assault "arguably, is a crime that suggests that he
has used violence in the past and may resort to it again.
However, . . . [t]he arrest was almost ten years old at the time
the search warrant was issued. Moreover, it was just that--an
arrest, not a conviction." Ibid. As in Eason, Darryl Jones had
been arrested in 1994 on assault and weapons charges, close to
seven years prior to the issuance of the warrant. Furthermore,
he was not convicted. As the Eason court noted, it was
reasonable to assume an "innocent explanation" for the arrest
without a conviction. Ibid. The same may be said here.
In Eason, the Wisconsin Supreme Court found that, as in the
present case, the prior arrest of defendant, even when taken
together with the easily disposable nature of cocaine and the
likelihood that persons involved in drug crimes will be armed,
was not sufficiently particularized to establish the reasonable
suspicion necessary for a no-knock entry. Id. at 634-35. See
also State v. Botelho,
638 N.W.2d 770 (Minn. App. 2002)
(allegations in application for no-knock search warrant were not
sufficiently particularized to support a reasonable suspicion of
a threat to officer safety or threat of destruction of evidence
so as to justify an unannounced entry _ even though the officer
alleged that there were periodic visitors with criminal histories
of drug possession and dangerous weapons, there was general
practice among drug dealers to carry weapons, and drugs could be
easily destroyed).
Although, "an officer can couple knowledge of prior criminal
involvement with more concrete factors in reaching a reasonable
suspicion of current criminal activity," United States v.
Sprinkle,
106 F.3d 613, 617 (4th Cir. 1997) (citing United States
v. Sandoval,
29 F.3d 537, 542 (10th Cir. 1994)), no such concrete
factors existed here. As stated above, the confidential
informant was in the apartment three times before the application
for the warrant was made and never mentioned any weapons present.
Furthermore, the police conducted one more "controlled buy" after
obtaining the warrant, but before executing it. Again, the
informant did not alert the officers to the presence of any
weapons.See footnote 44
While State v. Johnson, supra, 168 N.J. at 624-25, does
suggest that a person's criminal history might be "used to
support a reasonable suspicion to believe that officer safety
would be compromised without a no-knock entry," a stale prior
arrest does not provide the basis for a reasonable suspicion that
police safety is at risk.
Furthermore, in denying the motion to suppress, the judge
took note of Jones's arrest and stated:
Someone with that kind of a charge in
their past, when joined with the unfortunate
marriage that often occurs between drugs and
weapons, was a sufficient basis for the
magistrate to have issued the no-knock
provision of the warrant.
Such a linkage between drugs and weapons appears to approach, if
not adopt, the "kind of blanket rule forbidden by Richards."
Johnson, supra, 168 N.J. at 620.
When determining whether "reasonable suspicion" exists for a
no-knock warrant, we must weigh the "totality of the
circumstances." Johnson, supra, 168 N.J. at 619. While the
showing of a reasonable suspicion justifying a no-knock entry is
"not high, . . . the police should be required to make it
whenever [the] reasonableness of [the] entry is challenged." Id.
at 618 (quoting Richards, supra, 520 U.S. at 394-95, 117 S. Ct.
at 1422, 137 L. Ed.
2d at 622). Under the circumstances of this
case, the police officer did not articulate particularized
reasons that would allow for an exception to the basic and
significant legal tenet that law enforcement officers must knock
and announce their presence before entering another's dwelling.
The rule is not a mere technicality, but is at the core of the
fundamental values protected by the state and federal
constitutional guarantees against unlawful searches and seizures.
"[T]he [knock and announce] requirement is of the essence of the
substantive protections which safeguard individual liberty." Ker
v. California,
374 U.S. 23, 49,
83 S. Ct. 1623, 1637,
10 L. Ed.2d 726, 747 (1963) (Brennan, J. dissenting in part). "Personal
liberty is not a game. It is the hallmark of our country.
Upholding the rule of law will not always produce a popular
outcome, but it will preserve freedom. That is our duty as an
independent judiciary." State v. Eason, supra, 629 N.W.
2d at 660
(Prosser, J., dissenting).
As a result, for either of the reasons discussed, the search
of 4009 Park Boulevard was unlawful and the motion to suppress
should have been granted.See footnote 55
Reversed.
Footnote: 1 1 Darryl James Jones, defendant's brother, was also named in every count of the indictment. Additionally, Celita Anita Battle, Stephanie Michele Thompson a.k.a. Stephanie Michele Johnson, and Catherine Alethea Devane were named in counts eight and nine. Footnote: 2 2 As noted by the State, the search warrant and application took care to not identify the gender of the confidential informant, so as to protect the informant's identity. The masculine pronoun is used only for ease of reference. Footnote: 3 3 The dates of the purchases were not disclosed so as to protect the confidential informant's identity. Footnote: 4 4 While the presence of a weapon in the apartment during this last "controlled buy" would have come too late to give a reasonable suspicion supporting the "no-knock" warrant. It could have created an exigent circumstance that would have allowed the officers to enter without first announcing their presence even in the absence of a valid "no-knock" warrant. See Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 1918, 131 L. Ed.2d 976, 982 (1995); Johnson, supra, 168 N.J. at 616. Footnote: 5 5 We reject defendant's argument that the warrant was overbroad in authorizing the search of persons found within the premises. R. 2:11-3(e)(2). In light of our disposition, there is no need for us to address defendant's sentencing argument.