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. Keith R. Domicz (A-42-05)
Argued March 21, 2006 -- Decided September 20, 2006
ALBIN, J., writing for a majority of the Court.
After a search of his home resulted in the seizure of marijuana and
growing equipment, defendant Keith R. Domicz was indicted on charges of operating a
controlled dangerous substance (CDS) production facility, possession with intent to distribute a CDS
(marijuana), and possession of CDS (marijuana and methamphetamine).
Six months before defendants home was searched, Detective William Peacock of the New
Jersey State Police Marijuana Eradication Unit learned that defendant had received specialized horticultural
equipment commonly used to grow marijuana. Pursuant to a grand jury subpoena, the
police obtained electrical use records of defendants residence. Those records did not provide
any useful investigative information. Two months later, without a warrant, Detective Peacock conducted
a thermal scan of defendants home to determine whether there was an unusual
amount of heat, which might indicate the use of specialized marijuana growth equipment.
The thermal scan also did not provide any leads.
At the suppression hearing, the State and defendant presented conflicting accounts of what
occurred on the day of the search. According to the State, five detectives
dressed in plain clothes went to defendants home. Three detectives went to the
front door. Along with another officer, Detective Peacock went to the back door,
which he believed was used as an entrance because of the location of
the cars in the driveway. When defendant answered the front door, those two
detectives joined the others at the front of the house. One detective identified
himself and told defendant, We need to speak to you. Defendant replied, Come
on in, get out of the rain. When they entered, Detective Peacock noticed
a strong odor of raw marijuana. He introduced himself as a member of
the State Police Marijuana Eradication Unit and said, Were here to request permission
to search your residence. He presented a consent-to-search form, which he read and
explained to defendant. At one point, defendant put his head down and said,
I have 40 plants in the basement. Detective Peacock responded, Well get to
that in a minute, and finished reading the consent form, while defendant listened
and looked at the form. Detective Peacock advised defendant that the right to
refuse to give consent to the search. The other officers did not surround
or intimidate defendant. Defendant authorized the search by signing the form under a
statement that read: I have knowingly and voluntarily given my consent and fully
understand that I have the right to refuse giving my consent to search.
The detectives then searched the house and found nearly 100 plants in the
basement and growing next to the garage, an apparatus for cultivating marijuana plants,
bags of processed marijuana, a digital scale, and a bag of methamphetamine.
Defendants version of the events was very different. He testified that three detectives
came to his front door, where the head guy showed a badge and
said he had a search warrant. Without permission, they came into the house
and let the two other officers in the back door. Defendant was handcuffed,
told to sit on a couch, and read his rights. An hour later,
the detectives gave defendant a form to sign, but they did not read
it or explain it to him.
At the hearing, the trial court did not allow testimony from a polygraph
examiner who would have testified for the defense about the results of a
polygraph examination taken by defendant. The trial court denied defendants motion to suppress
the evidence seized from his home. The court accepted Detective Peacocks testimony and
rejected defendants testimony as unbelievable, and determined that the State had proven by
clear and convincing evidence that defendant knowingly and voluntarily consented to the search.
Defendant pled guilty to operating a CDS production facility. He was sentenced to
10 years in prison with a 40-month period of parole ineligibility. The remaining
charges were dropped.
The Appellate Division, in an opinion published at
377 N.J. Super. 515 (2005),
reversed the suppression order, vacated defendants conviction, and remanded for a new suppression
hearing. The panel found that the warrantless thermal scan of defendants home and
warrantless seizure of his utility records were unconstitutional, may have tainted defendants consent,
and could cast doubt upon the credibility of Detectives Peacocks version of events.
Although not previously raised by defendant, the panel also held that police officers
must have a reasonable and articulable suspicion that criminal activity is occurring inside
a residence before requesting consent to search the home. Finally, the panel would
have allowed testimony about the polygraph test.
The Supreme Court granted certification.
185 N.J. 268 (2005). The Court also granted
the motion of the Criminal Defense Lawyers of New Jersey to participate as
amicus curiae.
HELD: Under the circumstances, the warrantless thermal scan and seizure of electricity records
did not constitute prior unlawful conduct that could have tainted the later search.
Grand jury subpoena procedures adequately protect any privacy interest in utility records. Law
enforcement officers are not required to have a reasonable and articulable suspicion that
criminal activity is occurring within a home before seeking consent to search the
residence.
1. The record does not support a conclusion that the detectives engaged in
prior unlawful conduct that tainted the consent search. At the time Detective Peacock
conducted the thermal scan, a majority of federal courts had ruled that a
thermal scan was not a search requiring a warrant under the Fourth Amendment.
The detectives failure to predict that one year later the United State Supreme
Court would reach the opposite conclusion cannot be considered part of a pattern
of illegality or used to impair his credibility. (pp. 12-15)
2. A grand jury subpoena is sufficient to satisfy whatever privacy interest defendant
had in his electricity records under Article I, Paragraph 7 of the State
Constitution. The Court previously held that grand jury subpoena procedures sufficiently protect citizens
reasonable expectation of privacy in bank records. There is no persuasive reason why
utility records should be given more protection than bank records, which expose more
about a persons private life. (pp. 15-20)
3. The area around a home to which the public is welcome, such
as a walkway leading to an entrance, is not given Fourth Amendment protection
because the resident has given implied consent to visitors to approach the home
that way. When a law enforcement officer walks to a back door of
a home to make contact with a resident and, as the trial court
found in this case, reasonably believes that the door is used by visitors,
there is no unconstitutional trespass. (pp. 21-23)
4. Law enforcement officers are not required to have a reasonable and articulable
suspicion that criminal activity is occurring within a home before seeking consent to
search the residence. The Court does not extend its decision in
State v.
Carty,
170 N.J. 632 (2002), which requires a reasonable and articulable suspicion of
criminal wrongdoing before seeking consent to search a lawfully stopped motor vehicle, to
the search of a home.
Carty addressed concerns about racial profiling on New
Jersey highways and widespread abuse of consent searches of vehicles stopped for minor
traffic violations. There is no claim here that there is an abuse of
consent searches of homes or that minority residents are disproportionately targeted by such
searches. Also, a person in his home is under less compulsion to consent
to a search than a motorist on the highway after a motor vehicle
stop. (pp. 24-33)
5. The trial court correctly rejected defendants attempt to introduce testimony about the
results of an unstipulated private polygraph test he took in his lawyers office
eighteen months after the search of his home. The Court declines to extend
its decision in
State v. McDavitt,
62 N.J. 36 (1972) (holding that results
of polygraph examination are admissible only in a criminal case when the State
and defendant enter into a stipulation to have defendant submit to a polygraph
test) to unstipulated polygraph examinations, even in a suppression hearing presided over by
a judge. Judges are capable of making credibility decisions in the traditional way,
by assessing the testimony and demeanor of the witness. (pp. 33-40)
The judgment of the Appellate Division is
REVERSED and the judgment of conviction
is
REINSTATED.
JUSTICE WALLACE, JR., joined by
CHIEF JUSTICE PORITZ and
JUSTICE LONG, has filed
a separate opinion
CONCURRING in part and
DISSENTING in part. In his view,
the Court was not required to address the issue of whether the reasonable
and articulable suspicion standard is a prerequisite to a consent search of a
home, as defendant did not raise the issue at his suppression hearing or
before the Appellate Division. The majority having decided the issue, Justice Wallace is
of the view that the reasonable and articulate suspicion standard applies to a
consent search of a home.
JUSTICES LaVECCHIA,
ZAZZALI, and RIVERA-SOTO join in JUSTICE ALBINs opinion. JUSTICE WALLACE filed
a separate opinion concurring in part and dissenting in part, in which CHIEF
JUSTICE PORITZ and JUSTICE LONG join.
SUPREME COURT OF NEW JERSEY
A-
42 September Term 2005
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KEITH R. DOMICZ,
Defendant-Respondent.
Argued March 21, 2006 Decided September 20, 2006
On certification to the Superior Court, Appellate Division, whose opinion is reported at
377 N.J. Super. 515 (2005).
Paul H. Heinzel and Leslie-Ann M. Justus, Deputy Attorneys General, argued the cause
for appellant (Zulima V. Farber, Attorney General of New Jersey, attorney; Mr. Heinzel,
Ms. Justus, Deborah C. Bartolomey, Daniel I. Bornstein and Russell J. Curley, Deputy
Attorneys General, on the briefs).
Alison S. Perrone, Designated Counsel, argued the cause for respondent (Yvonne Smith Segars,
Public Defender, attorney).
William H. Buckman and Justin T. Loughry submitted a brief on behalf of
amicus curiae, Association of Criminal Defense Lawyers of New Jersey.
JUSTICE ALBIN delivered the opinion of the Court.
This case involves defendant Keith R. Domiczs challenge to the constitutionality of a
police search of his home that resulted in the seizure of nearly one
hundred marijuana plants and assorted growing equipment. After a testimonial hearing, the trial
court denied defendants motion to suppress the evidence seized from his home, determining
that defendant knowingly and voluntarily consented to the search. In overturning that ruling
and ordering a new suppression hearing, the Appellate Division reached a number of
novel legal conclusions that are not supported by our established constitutional jurisprudence and
case law. Therefore, we now reverse.
I.
A.
A state grand jury returned an indictment charging defendant with first-degree maintaining or
operating a controlled dangerous substance (CDS) production facility, in violation of
N.J.S.A. 2C:35-4;
first-degree possession with intent to distribute a CDS (marijuana), in violation of
N.J.S.A.
2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(10)(a); fourth-degree possession of a CDS (marijuana), in violation of
N.J.S.A. 2C:35-10(a)(3); and third-degree possession of a CDS (methamphetamine), in violation of
N.J.S.A.
2C:35-10(a)(1).
At a suppression hearing, the State and defendant presented conflicting accounts of what
occurred at defendants home on July 27, 2000.
See footnote 1
Detective William Peacock of the
New Jersey State Police Marijuana Eradication Unit testified that defendant first attracted his
attention six months earlier when he learned that defendant had received at his
home in the Williamstown section of Monroe Township, Gloucester County, four packages of
specialized horticultural equipment commonly used to grow marijuana. That the equipment also had
legitimate uses did not dampen the detectives interest. As part of the detectives
investigation, a grand jury subpoena
See footnote 2
was issued for the electrical use records of
defendants residence and two comparable houses. With those records, the State Police supposedly
could compare defendants electrical usage in his home with similarly situated consumers. Those
records, it appears, did not provide any useful information linking defendants electricity consumption
with the suspected harvesting of marijuana in his home.
About two months before the search, Detective Peacock conducted a thermal scan of
defendants home to determine whether an abnormal amount of heat was emanating from
it.
See footnote 3
Detective Peacock did not seek authorization for the thermal scan by means
of a search warrant because he did not think that a warrant was
necessary.
See footnote 4
The thermal scan, as well as Detective Peacocks frequent drives by defendants
home on his commute to work, did not provide any investigative leads.
On the rainy morning of July 27, 2000, accompanied by two State Police
detectives, a Monroe Township Police detective, and a Gloucester County Prosecutors Office detective,
Detective Peacock went to defendants home for a knock and talk. The goal
was to speak with defendant and, if possible, gain his consent to search
his home. Detective Peacock admitted that he did not have probable cause to
secure a search warrant.
The officers were all dressed in plain clothes. Three proceeded to defendants front
door while Detective Peacock and State Police Detective Dennis Donovan approached the back
door by passing through a gate that separated the driveway from the rear
of the residence. Because of the location of cars in defendants driveway, it
appeared to Detective Peacock that the back door was used as an entrance
to the home. Immediately after Detective Peacock knocked on the door, State Police
Detective Sergeant Joe DiBiase advised him that defendant was at the front door.
Detectives Peacock and Donovan then joined the other officers at the front of
the house. In a calm and professional tone, with the other officers standing
behind him, Detective Sergeant DiBiase identified himself to defendant and told him, We
need to speak to you. Defendant invited the officers inside, saying, Come on
in, get out of the rain.
As soon as Detective Peacock entered the house, he detected a strong odor
of raw marijuana. Detective Peacock introduced himself as a member of the State
Police Marijuana Eradication Unit and said, Were here to request permission to search
your residence. They were standing in a small room, about eight or ten
feet square, adjacent to the kitchen, where defendants girlfriend was located. Detective Peacock
then presented to defendant a consent-to-search form and began reading and explaining the
form to him. At that point, defendant put his head down and said,
I have 40 plants in the basement. Detective Peacock responded, Well get to
that in a minute, and continued reading the consent form in its entirety
to defendant, who was listening attentively and looking at the form. Among other
things, Detective Peacock advised defendant that he had the right to refuse to
give consent to the search. At no point did the other detectives surround,
hover over, or intimidate defendant. After the form was read to him, defendant
authorized the search by signing the form beneath the following acknowledgement: I have
knowingly and voluntarily given my consent to the search . . . and
fully understand that I have the right to refuse giving my consent to
search.
The detectives then searched the house. At the foot of the basement stairs,
they found thirty-nine marijuana plants stashed in garbage bags. In a makeshift plywood
room in the basement, they found forty-four actively growing marijuana plants, as well
as apparatus for cultivating marijuana plants. They also found nine clear plastic bags
containing processed marijuana in the kitchen freezer; three bags of marijuana, a digital
scale, and a bag of methamphetamine in the master bedroom; and a bag
of marijuana in another bedroom. In addition, Detective Peacock and two of the
officers observed in plain view another fourteen marijuana plants growing next to the
garage.
Defendant offered a starkly different version of the events surrounding the search. Defendant
testified that at around 7:00 or 8:00 a.m. on July 27, 2000, three
detectives arrived at his front door. The head guy showed him a badge
and stated that he had a search warrant, and then, without asking permission,
the three detectives entered his house. The detectives then opened the back door,
letting in two other officers. Defendant was handcuffed, told to sit on a
couch where his girlfriend was also seated, and read his rights. Approximately one
hour later, the detectives presented a document to defendant without reading or explaining
it to him. Defendant signed the folded document as he was told to
do. He denied that he ever read the document or was ever advised
of his right to refuse to consent to the search. He also suggested
that the detectives concealed the contents of the document by folding it in
half before he signed it.
Retired State Police Lieutenant Vincent Bellaran testified for the defense. He stated that
the detectives involved in the case did not use the most recently issued
consent form, which apparently had been adapted to deal with motor vehicle stops.
Last, the trial court did not allow defense witness Alan Hart, a polygraph
examiner, to testify about the results of a polygraph examination taken by defendant.
In denying defendants motion to suppress, the trial court determined that the State
had carried its burden of proving by clear and convincing evidence that defendant
voluntarily and knowingly consented to the search of his house and garage. The
court made specific credibility findings, accepting Detective Peacocks testimony and rejecting defendants testimony
as unbelievable. The court did not credit defendants argument that the detectives tricked
and coerced him into signing the consent form or that they had folded
it in half to conceal its true nature. The court accepted as truthful
Detective Peacocks assertion that he smelled the odor of raw marijuana upon entering
defendants house. The court also weighed favorably Detective Peacocks candid admission that he
did not have probable cause to conduct a search at the time he
proceeded with the knock and talk with defendant. The court found Lieutenant Bellarans
testimony to have no value because the Lieutenant did not specify whether the
consent forms are different for motor vehicle searches as opposed to other kinds
of searches.
After entering into a plea agreement with the State, defendant pled guilty to
operating a CDS production facility. On that charge, the court sentenced defendant to
ten years imprisonment with a forty-month parole ineligibility period, imposed financial penalties, and
suspended his driving privileges for twelve months. In accordance with the plea agreement,
the remaining charges were dismissed.
Defendant appealed the denial of his suppression motion.
B.
The Appellate Division reversed the trial courts suppression order and vacated his conviction
based on its determination that the warrantless thermal scan of defendants home violated
the Fourth Amendment of the United States Constitution and the warrantless seizure of
his utility records violated Article I, Paragraph 7 of the New Jersey Constitution.
State v. Domicz,
377 N.J. Super. 515, 561 (App. Div. 2005). The appellate
panel remanded for a new hearing before a different judge to consider whether
[defendants consent] was tainted by the prior unlawful conduct and to weigh the
impact of that conduct (1) on the credibility of the police version of
the alleged consent search, (2) on the legitimacy of the manner in which
the police sought consent, and (3) on whether police had a reasonable suspicion
that would justify seeking defendants consent to a search of his home.
Id.
at 548-59. The panel also concluded that the court erred by failing to
allow testimony about a polygraph test administered to defendant.
Id. at 523.
The warrantless thermal scan of defendants home in this case occurred more than
one year before the United States Supreme Court in
Kyllo v. United States,
533 U.S. 27, 40,
121 S. Ct. 2038, 2046,
150 L. Ed.2d 94, 106 (2001), ruled that the Fourth Amendment required law enforcement officers to
secure a warrant to conduct such a search.
Domicz,
supra, 377
N.J. Super.
at 530-31. Before
Kyllo, a majority of courts in the country did not
consider a thermal scan a search triggering the protections of the Fourth Amendment.
Id. at 532. Nonetheless, the panel held that Detective Peacock and his fellow
officers should have anticipated that under Article I, Paragraph 7 of our State
Constitution, the courts of this State would prohibit thermal scans of homes without
a warrant.
Id. at 532-34.
Similarly, the panel held that the officers should have anticipated that a warrantless
seizure of utility records would also be declared an unreasonable seizure under Article
I, Paragraph 7 by our state courts.
Id. at 536-38. In this matter
of first impression in New Jersey, the panel concluded that there is a
legitimate expectation of privacy in electrical usage records maintained by a power company
that precludes the intrusion of law enforcement in the absence of a warrant.
Id. at 538, 546.
The panel considered the conducting of a thermal scan without a warrant and
the acquisition of the electrical utility records by a grand jury subpoena to
be not only unlawful conduct, but also prior bad acts evidence that might
suggest that the police also engaged in an unlawful search of defendants home.
Id. at 549-50. In other words, the panel explained, the [court] is entitled
to doubt the likelihood that the officers acted in a constitutionally permissible manner
on July 27, 2000, when they did not so act on prior occasions.
Id. at 549. The prior willingness of the police to engage in unlawful
conduct, the panel stated, could be used to impugn the credibility of the
police version and lead a court to conclude that defendants account was the
more believable one.
Id. at 549-50. In the same vein, the panel maintained
that at a new suppression hearing the court could consider whether the warrantless
intrusion by Detective Peacock and another officer into the gated backyard of defendants
property violated the Fourth Amendment and, if so, its impact on the credibility
of the States contention that the police acted lawfully when seeking defendants consent
to a search of his home.
Id. at 550.
Additionally, although defendant did not raise the issue either at the suppression hearing
or on appeal, the panel held that police officers must have a reasonable
and articulable suspicion that criminal activity is occurring inside a home before requesting
consent to search the premises.
Id. at 551. By that first-time-ever ruling, the
panel extended to the searches of homes the standard that we made applicable
to searches of motor vehicles in
State v. Carty,
170 N.J. 632,
modified
on other grounds,
174 N.J. 351 (2002).
Domicz,
supra, 377
N.J. Super. at
551. The panel seriously question[ed] whether this standard could be met on the
evidence in the present case.
Ibid.
Finally, the panel concluded that defendant should have been given the opportunity to
present the results of the polygraph test administered to him by a private
polygraph examiner. In yet another matter of first impression, the panel determined that
the admissibility of polygraph evidence in a non-jury setting is not dependent on
a prior agreement between the State and the defendant, thus carving out an
exception to the stipulation requirement of
State v. McDavitt,
62 N.J. 36 (1972).
Domicz,
supra, 377
N.J. Super. at 557-58. The panel expressly held that subject
to
N.J.R.E. 403, polygraph evidence may be admitted at a suppression hearing, even
in the absence of the consent of the State, when credibility is an
issue.
Id. at 559-60.
We granted the States motion for a stay of the Appellate Division decision,
and then its petition for certification.
185 N.J. 268 (2005). We also granted
the motion of the Association of Criminal Defense Lawyers of New Jersey to
participate as amicus curiae.
II.
We begin by addressing whether the warrantless conducting of a thermal scan of
defendants home and the acquiring of defendants electric utility records pursuant to a
grand jury subpoena constituted unlawful conduct that could taint the consent search of
defendants home. The Appellate Division submits that the willingness of the police officers
to engage in prior misconduct is evidence that might suggest that the consent
search was itself a sham.
Domicz,
supra, 377
N.J. Super. at 548-50. The
panel contends that the prior illegalities could impugn the credibility of Detective Peacocks
account of what occurred on July 27, 2000.
Ibid.
A.
First, the panels conclusion that the police officers in this case engaged in
prior unlawful conduct that tainted the consent search cannot be supported on this
record. When Detective Peacock conducted the warrantless thermal scan of defendants home in
May 2000, a majority of the federal circuit courts of appeal had ruled
that such a surveillance procedure did not constitute a search within the meaning
of the Fourth Amendment.
United States v. Elkins,
300 F.3d 638, 646 (6th
Cir. 2002). In those jurisdictions, therefore, the police did not have to seek
a warrant to engage in a procedure that was not deemed a search.
At the time of the thermal scan of defendants home, no court in
this State had addressed the issue. In June 2001, the constitutional landscape became
clear when in a five-four decision the United States Supreme Court issued
Kyllo
v. United States,
supra. There, the Court held that when law enforcement officials
use[] a device that is not in general public use, to explore details
of the home that would previously have been unknowable without physical intrusion, the
surveillance is a search and is presumptively unreasonable without a warrant under the
Fourth Amendment. 533
U.S. at 40, 121
S. Ct. at 2046, 150
L.
Ed.
2d at 106.
We need not decide here whether
Kyllo should retroactively apply to this case,
which was on appeal at the time of the United States Supreme Courts
decision, or whether this State would have come to a similar result under
Article I, Paragraph 7 to the one reached by the
Kyllo majority. From
the record before us, Detective Peacock learned nothing of value from the thermal
scan of defendants home. Accordingly, there was nothing wrongfully seized that law enforcement
could exploit to defendants detriment.
See Wong Sun v. United States,
371 U.S. 471, 485,
83 S. Ct. 407, 416,
9 L. Ed.2d 441, 454
(1963);
State v. Badessa,
185 N.J. 303, 311 (2005). No one has suggested
that Detective Peacock developed a lead from the scan or that it somehow
furthered the investigation. Without any tangible result from the scan, there was nothing
to suppress. Thus, even if
Kyllo applied, we fail to see how the
thermal scan affected the later consent search.
We cannot agree with the Appellate Division that the failure of the law
enforcement officials in this case to anticipate the
Kyllo decision, along with most
federal circuit courts, suggests willful misconduct, or that such a lack of prescience
should be considered part of a pattern of illegality or be used to
impair the credibility of an investigating detective. Nor can we agree that the
officers may have engaged in willful misconduct because they did not have the
foresight to predict what this Court might have done under this States Constitution
if it had been faced with the
Kyllo issue. Even experienced and able
jurists, at times, have been unable to forecast decisions of this Court. To
permit a court to infer willful wrongdoing from the failure of Detective Peacock
to obtain a thermal scan warrant would be unfair and unreasonable in the
circumstances of this case.
B.
We next determine that whatever privacy interest attached to defendants utility records,
the acquiring of those records by a grand jury subpoena satisfied Article I,
Paragraph 7 of the State Constitution. The appellate panel appears to concede that
no expectation of privacy recognized under the Fourth Amendment was breached when law
enforcement officials obtained defendants electric utility records through a grand jury subpoena.
See
Domicz,
supra, 377
N.J. Super. at 534-38. However, based on its view of
this Courts Article I, Paragraph 7 search-and-seizure jurisprudence, the panel concluded that defendant
had a reasonable expectation of privacy in those records under our State Constitution
that required law enforcement officials to obtain a warrant supported by probable cause.
Id. at 533-38. Therefore, the panel held that the seizure of defendants electricity
records by means of only a grand jury subpoena constituted an unlawful search.
Id. at 534.
In rendering its decision, the Appellate Division did not have the benefit of
our opinion in
State v. McAllister,
184 N.J. 17 (2005). There, we held
that under the New Jersey Constitution, citizens have a reasonable expectation of privacy
in bank records, but that existing grand jury subpoena procedures sufficiently protect that
expectation.
Id. at 19. In light of that decision, neither defendant nor amicus
curiae offer any persuasive reasons why electric utility records should be afforded greater
protection than bank records.
We noted in
McAllister that the Federal Constitution does not recognize an expectation
of privacy in bank records.
Id. at 24-26 (citing
United States v. Payner,
447 U.S. 727,
100 S. Ct. 2439,
65 L. Ed.2d 468 (1980);
United States v. Miller,
425 U.S. 435,
96 S. Ct. 1619,
48 L.
Ed.2d 71 (1976)). Therefore, under the Fourth Amendment neither a warrant nor
a grand jury subpoena is required for law enforcement officials to gain access
to such records.
See Payner,
supra, 447
U.S. at 732, 100
S. Ct.
at 2444, 65
L. Ed.
2d at 474;
Miller,
supra, 425
U.S. at
442-43, 446, 96
S. Ct. at 1623-24, 1626,
48 L. Ed 2d at
78-79, 81.
In contrast, under our State Constitution we recognize a citizens reasonable expectation of
privacy in his or her bank records, even when those records are in
the possession of the bank.
McAllister,
supra, 184
N.J. at 29. That privacy
interest follows from the understanding that, by revealing a history of expenses and
purchases, bank records can provide a virtual current biography of the account holder.
See id. at 31. Bank customers provide personal financial information to banks with
the expectation that such information will remain confidential and not be turned over
to the government without adequate process.
Ibid.
In
McAllister, we acknowledged that an account holders privacy interest in his bank
records under the New Jersey Constitution must be weighed against the legitimate investigatory
needs of law enforcement.
Id. at 33. Thus, we held that the issuance
of a grand jury subpoena duces tecum based on a relevancy standard satisfies
the constitutional prohibition against improper governmental intrusion.
Id. at 36. We declined to
impose a probable cause standard as a precondition to law enforcement officials obtaining
a subpoena for bank records.
Id. at 33-34, 36. Instead, we applied the
prevailing standard for the issuance of a grand jury subpoena, requiring only that
the records sought bear some possible relationship, however indirect, to the grand jury
investigation.
Id. at 34 (internal quotation marks omitted).
We discern no basis for treating electric utility records differently from bank records.
We do not accept defendants comparison of warrantless thermal scanning of a home,
which detects amounts of heat emanating from within the premises, to acquiring of
utility records by a grand jury subpoena. Although both reveal details about activities
within the home, thermal scanning is the equivalent of a physical intrusion into
a residence by means of a highly sophisticated surveillance apparatus and therefore constitutes
a search for purposes of the Fourth Amendment.
See Kyllo,
supra, 533
U.S.
at 35-36, 40, 121
S. Ct. at 2044, 2046,
150 L. Ed 2d
at 103, 106. We are not aware of any case that holds that
obtaining residential utility records by lawful process is akin to a home invasion
or constitutes a search.
Bank records expose much more about a persons private life and activities within
the home than utility records. Bank records may reveal all types of household
items purchased and possessed by a person, such as furniture, artwork, and electronic
equipment. Through check and debit card payments, those records may disclose what a
person eats and drinks, what newspapers and magazines he reads, and even where
he vacations. Bank records also may indicate the amount of a persons utility
and telephone bills. In comparison, utility records reveal only the total amount of
electricity a person is using in his home on a periodic basis and
the amount being paid for those services. It does not divulge personal details
-- whether or when the person is watching television, talking on the telephone,
or using any particular appliance. Thus, one could easily conclude that a person
has a far greater expectation of privacy in his bank records than his
utility records.
Significantly, no state court has interpreted its own constitution to mandate that the
police first obtain a warrant to obtain electric utility records. The state courts
that have considered the issue have rejected the notion that there is a
legitimate expectation of privacy in such records.
See Samson v. State,
919 P.2d 171, 173 (Alaska Ct. App. 1996) (holding that no reasonable expectation of privacy
in utility records exists under Alaska Constitution);
People v. Stanley,
86 Cal. Rptr. 2d 89, 94 (Cal. Ct. App. 1999) (finding that defendant did not have
a reasonable expectation of privacy in the quantity of electricity delivered by the
utility to [his] house);
People v. Dunkin,
888 P.2d 305, 307 (Colo. Ct.
App. 1994) (holding that there is no reasonable expectation of privacy in utility
records under either State or Federal Constitution),
cert. denied,
Smith v. Colorado,
515 U.S. 1105,
115 S. Ct. 2251,
132 L. Ed.2d 259 (1995);
State
v. Kluss,
867 P.2d 247, 254 (Idaho Ct. App. 1993) (finding that there
is no reasonable expectation of privacy in power records under State Constitution);
In
re Pers. Restraint of Maxfield,
945 P.2d 196 (Wash. 1997) (majority of justices
concluding that no reasonable expectation of privacy exists in utility records under State
Constitution).
See footnote 5
We therefore conclude that defendants utility records were obtained properly through a
grand jury subpoena and that the Appellate Division erred in finding that those
records were obtained through unconstitutional means.
See footnote 6
Because there was no official wrongdoing in
acquiring the records, the Appellate Division had no basis to reverse the order
denying defendants motion to suppress or to remand for a determination whether prior
unlawful conduct tainted the consent search.
III.
We do not agree with the Appellate Division that the trial court mistakenly
rejected the significance of the fact that the officers, by passing through a
gate and entering defendants backyard, had entered the curtilage of defendants home without
consent, without a warrant and without probable cause.
Domicz,
supra, 377
N.J. Super.
at 550. In rendering its decision, the trial court stated that it found
Detective Peacocks testimony to be credible and believable. In recounting that testimony, the
court recalled that Detective Peacock and a fellow officer passed through the rear
gate and entered the curtilage for the purpose of knocking on defendants back
door and speaking with him. The position of the parked cars in defendants
driveway led the officers to believe that the back door was used by
residents and visitors. The detectives did not observe any criminal wrongdoing or contraband
before they were called to the front of the house where defendant had
answered the door. Accepting that explanation as truthful, as the trial court did,
there was no unconstitutional incursion of the curtilage of defendants home.
Curtilage is land adjacent to a home and may include walkways, driveways, and
porches.
State v. Johnson,
171 N.J. 192, 208-09 (2002). Whether the Fourth Amendment
safeguards an area of curtilage depends on a consideration of various factors, including
whether the area is included within an enclosure surrounding the home, the nature
of the uses to which the area is put, and the steps taken
by the resident to protect the area from observation by people passing by.
Ibid. (quoting
United States v. Dunn,
480 U.S. 294, 301,
107 S. Ct. 1134, 1139,
94 L. Ed.2d 326, 334-35 (1987)). An area within the
curtilage to which the public is welcome, such as a walkway leading to
an entrance to a home, is not afforded Fourth Amendment protection because the
resident has given implicit consent to visitors to approach the home that way.
See id. at 209. In other words, when a law enforcement officer walks
to a front or back door for the purpose of making contact with
a resident and reasonably believes that the door is used by visitors, he
is not unconstitutionally trespassing on to the property.
Ibid. (declaring that when the
police come on to private property to conduct an investigation or for some
other legitimate purpose and restrict their movements to places visitors could be expected
to go the Fourth Amendment is not offended (quoting 1 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment, § 2.3(f) (3d ed. 1996)));
see also United States v. Garcia,
997 F.2d 1273, 1279-80 (9th Cir. 1993)
(observing that the Fourth Amendment is not implicated when officers go to the
back door reasonably believing it is used as a principal entrance to the
dwelling);
United States v. Reed,
733 F.2d 492, 501 (8th Cir. 1984) ([N]o
Fourth Amendment search occurs when police officers who enter private property restrict their
movements to those areas generally made accessible to visitors.);
United States v. Titemore,
335 F. Supp.2d 502, 505-06 (D. Vt. 2004) ([T]he law does not
require an officer to determine which door most closely approximates the Platonic form of
main entrance and then, after successfully completing this metaphysical inquiry, approach only that
door. An officer making a knock and talk visit may approach any part
of the building where uninvited visitors could be expected.),
affd,
437 F.3d 251
(2d Cir. 2006);
United States v. Daoust,
728 F. Supp. 41, 46 (D.
Me. 1989) (mem.) ([P]olice with legitimate business may enter the areas of the
curtilage which are impliedly open to use by the public.),
affd,
916 F.2d 757 (1st Cir. 1990).
In light of the trial courts findings, there was no unconstitutional intrusion onto
defendants property when Detective Peacock and another officer approached the back door. Accordingly,
a remand on this issue is unnecessary.
IV.
A.
We next address the Appellate Divisions novel holding that the law enforcement officers
in this case had no lawful right to seek consent to search defendants
home unless they had sufficient information to generate a reasonable and articulable suspicion
that criminal activity was occurring within the residence.
Domicz,
supra, 377
N.J. Super.
at 551. The panel raised that issue on its own, defendant having failed
to raise it at his suppression hearing or before the Appellate Division. Until
the panels decision, no jurisdiction, including our own, had placed such a restriction
on the longstanding and universally acknowledged consent exception to the warrant requirement in
the context of a home search.
See footnote 7
In establishing a reasonable and articulable suspicion standard as a prerequisite to a
consent search of a home, the panel extended our limited holding in
State
v. Carty,
170 N.J. 632, 635,
modified on other grounds,
174 N.J. 351
(2002), which dealt with the specific problems that had attended motor vehicle stops
in this State. We held in
Carty that Article I, Paragraph 7 of
the New Jersey Constitution requires law enforcement personnel [to] have a reasonable and
articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully
stopped motor vehicle.
Id. at 635. Our
Carty decision addressed concerns about the
then intractable problem of racial profiling on our highways,
see id. at 644-45
(citing publications detailing racial profiling), and the widespread abuse of our existing law
that allow[ed] law enforcement officers to obtain consent searches of every motor vehicle
stopped for even the most minor traffic violation.
Id. at 646.
We specifically limited our holding in
Carty to consent searches pursuant to a
stop for a traffic infraction.
Id. at 654. [I]n light of the September
11, 2001 attack on the World Trade Center and the Pentagon, we cautioned
against attempts to overextend our holding in [
Carty,] recognizing that [t]he need to
protect public safety today is even more readily apparent than in earlier times.
Id. at 652, 654. We noted that our decision did not affect roadblocks,
checkpoints and the like based on a concern for public safety.
Id. at
652. To accentuate the narrow breadth of the Courts holding, Justice Stein observed
in his concurring opinion that it ha[d] no application to consent searches in
airports, bus terminals, train stations, college dormitories,
private homes, or business premises.
Id.
at 656 (Stein, J., concurring) (emphasis added).
Nonetheless, the panel in this case untethered itself from the factual and jurisprudential
moorings of
Carty and declared in a footnote that it would be incongruous
to view
Carty as being limited to motor vehicles since intrusion into the
privacy of the home is the chief evil that the Fourth Amendment and
Article I, paragraph 7 were designed to prevent.
Domicz,
supra, 377
N.J. Super.
at 551 n.17. The panel, however, did not have before it a record
indicating statistically or even anecdotally that law enforcement officials were indiscriminately misusing the
warrant requirements consent search exception to gain entry into homes.
See Carty,
supra,
170
N.J. at 641, 644-45. As noted, before the trial court and Appellate
Division, defendant did not claim that such a problem existed. Nor has defendant,
amicus curiae, or our dissenting colleagues brought to our attention any evidence (such
as research studies, scholarly articles, or periodicals) of law enforcement abuse of the
consent exception as it applies to home searches. Because we find no factual
or legal justification for such a profound change in our constitutional jurisprudence, we
reject the panels extension of our
Carty holding to the search of a
home.
See footnote 8
B.
A search conducted pursuant to consent is a well-established exception to the constitutional
requirement that police first secure a warrant based on probable cause before executing
a search of a home.
See Schneckloth v. Bustamonte,
412 U.S. 218, 219,
93 S. Ct. 2041, 2043-44,
36 L. Ed.2d 854, 858 (1973);
Carty,
supra, 170
N.J. at 650. Indeed, consent searches are considered a legitimate aspect
of effective police activity.
Schneckloth,
supra, 412
U.S. at 228, 93
S. Ct.
at 2048, 36
L. Ed.
2d at 863. On the record before us,
we do not believe that there are sufficient reasons to alter that longstanding
constitutional doctrine. We do not agree with the appellate panel that it would
be incongruous to view
Carty as being limited to motor vehicles.
Domicz,
supra,
377
N.J. Super. at 551 n.17. First,
Carty dealt with a problem peculiar
to automobiles and disproportionately affecting minority drivers - the indiscriminate abuse of consent
searches of cars whose operators had been stopped for minor traffic infractions.
Carty,
supra, 170
N.J. at 644-47. Here, there is no claim by defendant or
amicus curiae that there is a problem of misuse of consent searches of
homes or that minority residents are disproportionately targeted by such searches.
Second, we perceive that there is a greater degree of compulsion to accede
to a consent search when a motorist is stranded on a highway after
a motor vehicle stop for a minor traffic infraction and the detaining police
officer requests permission to search than when a person is secure in his
own home and not under any form of detention and a similar request
is made.
See Carty,
supra, 170
N.J. at 644 (In the context of
motor vehicle stops, where the individual is at the side of the road
and confronted by a uniformed officer seeking to search his or her vehicle,
it is not a stretch of the imagination to assume that the individual
feels compelled to consent.). In
Carty, we described the inherently coercive predicament of
the driver who is stopped on the highway and faced with the perceived
choice of either refusing consent to search and therefore increasing the likelihood of
receiving a traffic summons, or giving consent to search in the hope of
escaping with only a warning.
Id. at 641.
The choices are not so stark for the person who, in the familiar
surroundings of his home, can send the police away without fear of immediate
repercussions.
See Schneckloth,
supra, 412
U.S. at 247, 93
S. Ct. at 2058,
36
L. Ed.
2d at 874 (suggesting that consent searches are not inherently
coercive when they occur on a persons own familiar territory);
United States v.
Carter,
378 F.3d 584, 589 (6th Cir. 2004) (stating that a mans home
is his castle, and that police may be kept out or invited in
as informally as any other guest),
cert. denied,
543 U.S. 1155,
125 S.
Ct. 1298,
161 L. Ed.2d 121 (2005);
cf. State v. Timmendequas,
161 N.J. 515, 615 (1999) (stating that, because questioning of defendant took place in
his home, it was not inherently intimidating),
cert. denied,
534 U.S. 858,
122 S. Ct. 136,
151 L. Ed.2d 89 (2001);
State v. P.Z.,
152 N.J. 86, 103 (1997) (noting that, during interview of defendant in his home,
he had complete freedom to come and go as he pleased). In limiting
the reach of our holding in
Carty, we recognized the distinct disadvantage of
the motorist detained at the side of the road and the history of
abuse of the consent search in the context of motor vehicle stops.
Carty,
supra, 170
N.J. at 641, 644, 646.
That is not to say that a person will not feel some degree
of compulsion whenever a police officer makes a request.
See State v. McCloskey,
90 N.J. 18, 24 (1982);
State v. Hickman,
335 N.J. Super. 623, 633
(App. Div. 2000). Surely, during a field inquiry, when a police officer asks
a question of a person on the street, although that person is lawfully
free to leave, he may feel some compulsion to respond. Nonetheless, we do
not mandate that police officers have reasonable suspicion before making an inquiry.
See
State v. Maryland,
167 N.J. 471, 484 (2001). Under our State Constitution, we
have heightened requirements to ensure that the waiver of the right to refuse
a consent search is voluntarily and knowingly exercised. In
State v. Johnson, we
held that under Article I, Paragraph 7, if the State seeks to justify
a search on the basis of consent it has the burden of showing
that the consent was voluntary, an essential element of which is knowledge of
the right to refuse consent.
68 N.J. 349, 353-54 (1975). Indeed, New Jersey
is one of a small minority of jurisdictions in the country requiring the
State to prove, as a precondition to the validity of a consent search,
that a person have knowledge of his right to refuse to give consent.
See State v. Brown,
156 S.W.3d 722, 724 (Ark. 2004) (holding that a
home dweller must be advised of his or her right to refuse consent
in order to validate a consensual search under the Arkansas Constitution);
State v.
Ferrier,
960 P.2d 927, 934 (Wash. 1998) (holding that police must, prior to
entering the home, inform the person from whom consent is sought that he
or she may lawfully refuse to consent to the search). Detective Peacock did
in this case what police officers routinely do throughout the State - he
advised defendant that he had a right to refuse to give consent to
a search of his home.
Mandating that police officers have reasonable and articulable suspicion to believe that criminal
activity is afoot in a home before they can make a request to
search the residence will not dispel whatever compulsion a person might feel when
confronted by authority figures at his door; certainly the same compulsion would be
felt by the person if the officers had reasonable suspicion. The reasonable suspicion
standard, however, will limit consent searches to a much smaller universe of cases.
In the dangerous times in which we live, we have not been presented
with any compelling reason - such as the record of abuse presented in
Carty -- to restrict law enforcement officers in a way that no other
jurisdiction has done to date.
As articulated in our case law, to determine whether a persons consent was
voluntarily given or coerced, the proper analytical framework is whether a person has
knowingly waived his right to refuse to consent to the search.
See Johnson,
supra, 68
N.J. at 353-54 (establishing standard of voluntariness of consent under Article
I, Paragraph 7, as knowing and intelligent waiver, which includes knowledge of right
to refuse consent);
State v. King,
44 N.J. 346, 352-53 (1965) (setting forth
various non-exhaustive factors supporting either voluntary or coerced nature of consent). Free choice
remains an indispensable tenet of our law - for example, the choice to
submit to interrogation or to consent to a search.
See Miranda v. Arizona,
384 U.S. 436, 444,
86 S. Ct. 1602, 1612,
16 L. Ed.2d 694, 707 (1966);
Johnson,
supra, 68
N.J. at 355 (Schreiber, J., concurring) (Consent
contemplates the exercise of a choice and free choice is effectively safeguarded if
the occupant of the premises knows that the search may be refused.);
see
also King,
supra, 44
N.J. at 353 (noting that many decisions have sustained
a finding that consent was voluntarily given even though the consent was obtained
under the authority of the badge or after the accused had been arrested).
The Constitution protects against unreasonable searches and seizures and against coerced waivers of
constitutional rights. It does not disallow voluntary cooperation with the police.
Our dissenting colleagues claim that a knock and talk encounter between police and
a citizen at his or her home is coercive,
post at __ (slip
op. at 8), despite the
Johnson warnings. That position undermines the very essence
of
Johnson, which is predicated on the principle that informed and voluntary consent
is not coerced consent. Moreover, our dissenting colleagues have failed to explain how,
under their construct, a knock and talk encounter is any less coercive if
based on reasonable and articulable suspicion. The dissent apparently would allow for the
search of defendants home, despite a coerced consent to search, provided there is
reasonable and articulable suspicion for the search.
In this case, after presiding over the suppression hearing, the trial court determined
that the State had proven by clear and convincing evidence that defendant knowingly
and voluntarily gave consent to the police to search his home. The positions
of the parties were hotly contested and the accounts given by Detective Peacock
and defendant were so different and discordant that only one could be telling
the truth. The trial court had the feel of the case, the opportunity
to make observations of the witnesses denied to an appellate court.
State v.
Locurto,
157 N.J. 463, 471 (1999) (quoting
State v. Johnson,
42 N.J. 146,
161 (1964)). Ultimately, the court found Detective Peacock credible. Defendant does not challenge
the sufficiency of the evidence to support that conclusion on the present record.
See Johnson,
supra, 42
N.J. at 162 (stating that aim of appellate review
is to determine whether the findings made could reasonably have been reached on
sufficient credible evidence present in the record).
For the reasons discussed, we decline to extend
Carty to require that the
police have a reasonable and articulable suspicion of criminal activity in a home
to justify requesting consent to conduct a search of the premises.
V.
At the suppression hearing, to bolster his credibility, defendant attempted to introduce testimony
about the results of an unstipulated private polygraph test he took in his
lawyers office eighteen months after the search of his home.
See footnote 9
Defendant called to
the stand Alan Hart, Ph.D., a polygraph examiner, who conducted the polygraph examination
and who, according to his report, was prepared to testify that defendant demonstrated
no reactions indicative of deception when responding to three questions concerning the events
surrounding the search of his home. In response to one such question, defendant
denied that any police officer [told him] that [he] could refuse [the] search.
See footnote 10
The State received Dr. Harts report four days before the suppression hearing.
The trial court declared Dr. Harts testimony irrelevant and barred him from testifying,
presumably based on this Courts decision in
State v. McDavitt,
62 N.J. 36,
46 (1972), in which we held that the results of a polygraph examination
are admissible only in a criminal case when the State and defendant enter
into a stipulation to have defendant submit to a polygraph test. The court
asserted that determining credibility was the motion judges function.
The Appellate Division concluded that the trial court erred by completely excluding the
polygraph evidence at the suppression hearing.
Domicz,
supra, 377
N.J. Super. at 556.
The panel distinguished the jury trial case in
McDavitt, which restricted the admissibility
of polygraph examinations to criminal cases involving stipulations between the State and the
defendant, from the suppression hearing in this case, in which defendant intended to
introduce his unstipulated polygraph examination to a judge.
Id. at 559. The panel
held that in a non-jury setting the admission of [polygraph] evidence, when a
proper foundation has been laid, is not limited by
McDavitts stipulation requirement.
Id.
at 558. The panel maintained that [t]he judge may give that testimony such
weight as it warrants, but the extent to which the judge values that
evidence should not determine its admissibility.
Id. at 560. The panel, however, conceded
that the State would be entitled to offer the same type of evidence
and that its ruling could turn some suppression hearings, where credibility is a
central issue, into battles between polygraphers.
Id. at 560 n.19.
Defendant and the State dispute the reliability and therefore the relevance of the
results of an unstipulated polygraph examination sought to be introduced at a suppression
hearing. Defendant essentially argues that if the results of a stipulated examination are
sufficiently reliable for a jurys consideration, results from an unstipulated examination surely must
be reliable enough for a judges consideration at a motion hearing. The State
stresses that
McDavitt was a singular exception to the general rule that polygraph
evidence is inadmissible, emphasizing that with a stipulated polygraph examination it is the
stipulation between the State and defendant that confers probative value on the polygraph
evidence.
First, it must be mentioned that defendant did not seek to present to
the trial court evidence that the overall reliability of polygraph examinations has achieved
significantly greater acceptance in the scientific and legal community since our decision in
McDavitt. The Court acknowledged in
McDavitt the general rule that lie detector testing
has not yet attained scientific acceptance as a reliable and accurate means of
ascertaining truth or deception. 62
N.J. at 44. In that case, the Court
carved out a narrow exception to that rule, holding that [p]olygraph testing has
sufficient probative value to warrant admissibility only when both the State and the
defendant agree to be bound by the results.
Id. at 46. Thus, limited
to a criminal case involving a stipulation between the parties, the Court concluded
that polygraph testing has been developed to such a point of reliability to
allow the admissibility of the results.
Ibid.
It is instructive to note that the circumstance under which the stipulation came
into existence [in
McDavitt] was a consideration for the Court in deciding that
case.
Id. at 45. In a criminal jury trial, the defendant in
McDavitt,
over the prosecutors objection, testified that he offered to submit to a polygraph
examination after his burglary arrest.
Id. at 41. That testimony, this Court noted,
should not have been permitted.
Id. at 43. But the door was opened.
On cross-examination, in response to a question by the prosecutor, the defendant stated
he would be willing to take a polygraph test that day.
Id. at
41. Eventually, the defendant and the State entered into a court-approved stipulation, agreeing
to the admissibility of the results of a polygraph test.
Id. at 41-42.
Unfortunately for the defendant, the examiner found him to be untruthful.
Id. at
42-43. From those unusual facts was born the
McDavitt exception.
There is a lack of scientific consensus concerning the reliability of polygraph evidence,
which in turn is reflected in the disagreement among state and federal courts
concerning the admissibility of such evidence.
United States v. Scheffer,
523 U.S. 303,
309-12,
118 S. Ct. 1261, 1265-66,
140 L. Ed.2d 413, 419-21 (1998).
In criminal cases, either in a jury or non-jury setting, the vast majority
of states either ban polygraph evidence altogether or do not admit such evidence
absent a stipulation between the State and the defendant.
See Am. Polygraph Assn,
Polygraph: Quick Reference Guide to the Law iii (17th ed. 2002) (noting that
eighteen states