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. Quinn Marshall (A-33-08)
Argued March 24, 2009 -- Decided July 21, 2009
WALLACE, J., writing for a majority of the Court.
The issue in this appeal is whether the trial court properly issued a search warrant, conditioned on verification by the police of the particular apartment to be searched inside a two-unit apartment building.
The facts are derived from the affidavit submitted in support of the contested search warrant. In August and September 2004, an informant made controlled drug buys from Allen Daniels at several locations. On October 20, Detective Michael Novembre applied for search warrants for Daniels, his car, and those locations. In a subsequent controlled buy, Daniels drove the informant to new location, 105 Wayne Avenue in Trenton. Shortly after entering the building, Daniels returned with a person later identified as defendant, Quinn Marshall. The informant, who had remained in the car, did not know the apartment inside the building from which Daniels retrieved the drugs. He identified the other person as Daniels' cousin, known as King Zeke. Public utility records did not list Daniels on either of the two accounts at 105 Wayne Avenue. Neither the Division of Motor Vehicles nor the Sate Bureau of Identification was able to assist in identifying which unit Daniels had entered. On October 25, 2004, Novembre requested a warrant to search 105 Wayne Avenue. Because the specific unit that Daniels had entered was not known, Novembre requested that the warrant permit a search of the apartment to which Daniels had "possession, custody, control, or access." Novembre also requested conditional language stating that the warrant will be executed only if (1) Daniels is secured outside 105 Wayne Avenue and (2) a search of Daniels reveals an item identifying the specific apartment to which he has possession, custody, control, or access, or he divulges that information to the police. The trial court approved the warrant to search the premises and included the requested conditional language.
On October 29, the police executed the search warrants for the locations other than 105 Wayne Avenue. They found Daniels at one of the locations, placed him under arrest, and informed him of his Miranda rights. In response to questioning, Daniels replied that he did not stay at 105 Wayne Avenue. He stated that King Zeke stayed in the first floor apartment. When asked how many times he had been there, Daniels told them "you don't need to ask me that question. You know I been over there." Based on that information, the police executed the search warrant on the first floor at 105 Wayne Avenue, and found defendant there. The search revealed cocaine, marijuana, and several firearms.
Defendant was arrested and charged with various drug and weapons offenses. He moved to suppress the evidence seized during the search at 105 Wayne Avenue. Daniels testified that he did not know whether defendant was living at 105 Wayne Avenue, but he had been in both apartments. He said the police never asked him whether he had access to the second floor apartment. Defendant testified that Daniels was his cousin and that they had visited both apartments. The trial court denied the motion to suppress, finding that the conditions contained in the warrant were satisfied and that there was probable cause to issue the warrant for the apartment at 105 Wayne Avenue.
The Appellate Division reversed. State v. Marshall, 398 N.J. Super. 92 (App. Div. 2008). The court held that the warrant was invalid because the affidavit failed to sufficiently describe the premises to be searched and directed the police to ascertain the facts needed to accurately describe the place to be searched without further judicial oversight or review. The Court granted the State's petition for certification. 196 N.J. 461 (2008).
HELD: The search warrant was issued in violation of the constitutional requirement to describe the place to be searched with particularity. Because police were authorized to determine if the conditions in the warrant were satisfied, the role of the neutral, detached magistrate was delegated to the police. The failure to comply with the particularity requirement and the failure to have a neutral and detached magistrate determine whether the conditions in the warrant were satisfied are constitutional violations, not technical insufficiencies justifying overlooking the deficiencies in the warrant.
1. Under the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, a warrant should not issue unless there is probable cause to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place sought to be searched. There must be a fair probability that evidence of a crime will be found in a particular place. (pp. 7-8)
2. The probable cause determination must be made based on the information contained within the supporting affidavit, to assure that the judge can adequately perform the constitutional function of providing independent judicial review prior to executive intrusions on individual privacy. The particularity requirement mandates that the description is such that an officer can identify the place intended. It is widely recognized that when a multi-unit building is involved, the affidavit in support of the search warrant must exclude the units for which police do not have probable cause. Also, the warrant must be issued by a neutral and detached magistrate. (pp. 8-11)
3. The State's affidavit in support of the search warrant clearly indicated that the police did not know in which of the two apartments at 105 Wayne Avenue the asserted criminal activity took place. The warrant was issued in violation of the constitutional requirement that the warrant particularly describe the place to be searched. The probable cause determination could not be made within the four corners of the affidavit because the anticipated conditions were to be satisfied after the warrant was issued. Because police were authorized to determine if the conditions were satisfied, the role of the neutral and detached magistrate was delegated to the police. (pp. 11-12)
4. In support of its position that the warrant was valid, the State cites Maryland v. Garrison, 480 U.S. 79 (1987), State v. Wright, 61 N.J. 146 (1972), and State v. Ratushny, 82 N.J. Super. 499 (App. Div. 1964). In Garrison, the Supreme Court found no Fourth Amendment violation where a court authorized a warrant to search a third-floor apartment, and police discovered contraband before realizing there were two units on that floor and they were in the wrong unit. Garrison does not control this case; in any event, the Court rests its opinion on the New Jersey Constitution. (pp. 13-14)
5. In Wright, the warrant authorized a search of a top floor without specifying the apartment. The affidavit stated that the intended apartment was the one the suspect occupied. When they sought the warrant, police knew the apartment in which the suspect resided, and the suspect was found there when the warrant was executed. Here, unlike in Wright, when the warrant issued the police did not know in which apartment the alleged criminal activity took place, and Daniels, the focus of the investigation, did not reside at that address. The Court finds no justification for expanding Wright beyond the particular facts of that case, where police knew in which apartment the suspect resided but failed to designate it in the affidavit. (pp. 14-16)
6. In Ratushny, the Appellate Division suggested that when a the apartment number is not known and police justifiably fear alerting a suspect if they try to obtain a more specific description, the affidavit should include a phrase such as "the premises occupied by the defendant and over which he has possession and control." That dictum does not support the State's assertion that it was sufficient to refer only to the apartment to which Daniels had "possession, custody, control or access." The State failed to establish why a specific description could not have been obtained before seeking the warrant. There was no effort to determine King Zeke's legal name or the apartment he resided in at 105 Wayne Avenue. Again, a neutral and detached magistrate must determine probable cause that contraband will be found or an offense is being committed at a particular location. Because that did not occur here, the warrant was deficient. (pp. 16-18)
7. The failure to comply with the particularity requirement and the failure to have a neutral and detached magistrate determine whether the conditions in the warrant were satisfied are constitutional violations, not technical insufficiencies or irregularities justifying overlooking the deficiencies in the warrant. (pp. 18-20)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE RIVERA-SOTO, DISSENTING, expresses the view that when the actual apartment harboring illegal conduct cannot be ascertained without jeopardizing the investigation or its participants, the particularity requirement of the warrant clause is satisfied by a detailed description of the building modified by a phrase such as the premises occupied by the defendant and over which he has possession and control.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, and HOENS join in JUSTICE WALLACE's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.