SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State v. James Robinson (A-62-08)
Argued April 28, 2009 -- Decided July 22, 2009
RIVERA-SOTO, J., writing for a unanimous Court.
The Court determines whether the manner used by police officers to execute a knock-and-announce warrant to search the defendant's dwelling, including the officers' use of a "flash bang" or percussion grenade device, was unreasonable and required the suppression of evidence found during the search.
In December 2003, a police investigation into cocaine sales disclosed that the drug could be purchased from defendant James Robinson at his apartment. On January 9, 2004, police officers applied to the Superior Court for a search warrant for Robinson's apartment. Their affidavit included a detailed description of two illegal drug transactions. The court issued the warrant. Among other things, the warrant specified that the place to be searched was Robinson's apartment and the property to be seized included any evidence suggesting the possession or sale of drugs. The warrant disapproved the execution of the warrant without police first knocking and announcing their presence and purpose. On January 16, 2004, at approximately 6:30 a.m., thirteen police officers converged on Robinson's apartment to execute the warrant. The officers knocked and announced their purpose, but received no response. After a twenty- to thirty-second interval, the officers forcibly gained entry, deployed a flash bang device, searched the apartment, and seized drugs, cash, a paper ledger and a scale. Robinson, who was present, was arrested.
A grand jury indicted Robinson on multiple counts of cocaine distribution and possession. Robinson moved to suppress the fruits of the search. Robinson advanced two arguments. First, he asserted that there was insufficient probable cause to support the issuance of the search warrant because some of the statements contained in the affidavit in support of the warrant allegedly were false. The trial court canvassed the contents of the affidavit and concluded that there was probable cause to believe that a controlled dangerous substance was being sold from Robinson's apartment and therefore the issuance of the warrant was proper. Second, Robinson argued that police had failed to knock and announce their presence when executing the search warrant. In opposition to this argument, the State produced as a witness the detective who had knocked and announced the officers' presence prior to their entry into the apartment. The detective testified that after waiting twenty or thirty seconds, the door was forcibly breached and the officers deployed a "distraction device" or "flash bang" inside the doorway. The detective explained that the purpose of the "flash bang" device was to surprise the occupants of the dwelling to permit the officers to get through the doorway safely. In response to questioning, the detective admitted that the device is not primarily used in executing search warrants. When the detective was asked why the device was used this time, his explanation was interrupted by defense counsel's objection. Agreeing that the detective's explanation was "beyond the point of anything," the trial court sustained the objection. After finding the detective credible and determining that the officers had properly knocked and announced, the court denied Robinson's motion to suppress.
After a jury convicted Robinson on all counts, he appealed. First, Robinson argued that the warrant was not supported by probable cause. Second, and for the first time, he argued that even if the warrant was validly issued, the manner of execution of the warrant—by the use of a "flash bang" device—was unreasonable.
The Appellate Division affirmed the trial court's ruling on probable cause. 399 N.J. Super. 400 (2008). With regard to the amount of time between the knock and announce and the forced entry, however, the panel stated that because the police arrived at 6:30 a.m. and it might take more than thirty seconds to wake up, dress, and walk to the door, "waiting just twenty to thirty seconds before forcibly breaking down the door of a residence renders the search facially unreasonable, and practically nullifies the knock-and-announce condition specifically imposed by the court." The panel then turned to Robinson's argument relating to the use of the "flash bang" device. The panel concluded that "absent unforeseen exigent circumstances supporting the use of force, the use of a flash bang device in connection with the execution of a `knock-and-announce' warrant, nullifies the legal efficacy of such warrant, rendering the entry and search of the dwelling unconstitutional, in violation of a defendant's rights under Article I, paragraph 7 of the Constitution of the State of New Jersey."
The Supreme Court granted the State's petition for certification. 197 N.J. 259 (2008).
HELD: Defendant's conviction and sentence are reinstated because, in the circumstances of this case, the delay of twenty- to thirty-seconds between the police officers knocking and announcing their purpose to execute a search warrant and their forcible entry into the apartment was reasonable, and defendant's challenge concerning the officers' use of a "flash bang" device was raised for the first time on appeal and was not appropriate for consideration.
1. The knock-and-announce rule renders unlawful a forcible entry to arrest or search where the officer failed first to state his authority and purpose for demanding admission. The rule is not absolute, however. Exceptions have been allowed where immediate action is required to preserve evidence, the officer's peril would be increased, or the arrest or seizure would be frustrated. With regard to the scope of review, an 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. An appellate court should not disturb the trial court's findings merely because it might have reached a different conclusion were it the trial tribunal. A trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction. It is only then that an appellate court should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. As a result, the Court considers in this matter only whether the motion to suppress was properly decided by the trial court based on the evidence presented at that time. (Pp. 17—20).
2. Here, the trial court found as facts that the detective knocked on Robinson's door, announced that it was the police and that there was a search warrant, waited between twenty and thirty seconds, and received no answer. The trial court determined that it was only then that a forced entry was necessary. Based on those findings, and confronted with Robinson's failure to raise the reasonableness of the manner of entry during the motion to suppress proceedings, the trial court denied Robinson's suppression motion. Because those factual findings and legal conclusions clearly are supposed by sufficient credible evidence in the record, they are unassailable. (P. 20).
3. The amount of time that must elapse between an announcement and an officer's forced entry depends on the circumstances of the case. The facts known to the police are what count in judging reasonable waiting time. Particularly 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. The common factors to be applied in determining the reasonableness of the delay include, but are not limited to, a suspect's violent criminal history, an informant's tip that weapons will be present, the risks to officers' lives and safety, the size or layout of defendant's property, whether persons other than defendant reside there, whether others involved in the crime are expected to be present, and the time of day. New Jersey cases applying these factors have found reasonable time lapses ranging from fifteen seconds to ten minutes depending on the particular circumstances. Here, the Court rejects the Appellate Division's conclusion that the twenty- to thirty-second delay was constitutionally insufficient. Based on the totality of the circumstances presented—including the potential for destruction while entry was delayed further—the Court finds sufficient credible evidence in the record to support the trial court's conclusion that the delay between knocking and announcing and the forcible entry was reasonable. (Pp. 20—24).
4. With regard to the Appellate Division's ruling concerning the flash bang device, Robinson never raised that issue before the trial court. Because the issue's factual antecedents never were subjected to the rigors of an adversary hearing, and because its legal propriety never was ruled on by the trial court, the issue was not properly preserved for appellate review. Although appellate courts in New Jersey retain the inherent authority to notice plain error not brought to the attention of the trial court provided it is in the interests of justice to do so, this exception is not intended to supplant the obvious need to create a complete record and to preserve issues for appeal. Based on that standard, defendant's claim of unreasonableness in respect of the use of a flash bang device in the execution of the search warrant should not have been addressed on direct appeal. The factual shortcoming in this record is dispositive and largely of Robinson's own making: when the State sought to explore the whys and wherefores of using the device, Robinson objected based on the assertion that the testimony was irrelevant to his challenge, which at that point was limited to his unsuccessful claim that the officers had failed to observe the knock-and-announce rule. The trial court sustained that objection. The failure to raise Robinson's present claim during the motion to suppress denied the State the opportunity to confront the claim head-on, denied the trial court the opportunity to evaluate the claim in an informed and deliberate manner; and denied any reviewing court the benefit of a robust record within which the claim could be considered. Given such a record, an appellate court should stay its hand and forego grappling with an untimely raised issue. (Pp. 24—29).
5. Having successfully barred the introduction of proofs concerning the use of a flash bang device before the trial court, Robinson sought—for the first time on appeal—to claim that the use of the device was unreasonable. Robinson never asserts that the failure to suppress the evidence secured by the use of a flash bang device in the execution of warrants creates an issue of trial error clearly capable of producing an unjust result that must be addressed in the interest of justice. On the whole, it was inappropriate to consider, for the first time on appeal, Robinson's belated challenge to the manner in which the warrant was executed. For that reason, the Appellate Division's reasoning and conclusions concerning the use of flash bang devices are rejected. (Pp. 29—30).
The judgment of the Appellate Division is REVERSED, and Robinson's conviction and sentence are REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE RIVERA-SOTO's opinion.