No Good
faith exception to police mistake in search warrant
State v. Boone (A-3-16) (077757)
Decided December 18, 2017
In this appeal, the Court considers whether a warrant application that
did not include evidence as to why a specific apartment unit should be searched
fell short of establishing probable cause for the search of that apartment.
Over the course of two months during the summer of 2012, the Bergen
County Prosecutor’s Office Narcotics Task Force set up surveillance of
defendant Akeem Boone for suspected distribution of crack cocaine, marijuana,
and heroin. On August 27, 2012, police observed Boone drive to a parking lot in
River Edge and retrieve a duffel bag from an unoccupied vehicle. He later drove
to an apartment building, 211 Johnson Avenue, where police suspected he lived.
Boone did not bring the bag into the thirty-unit building. An hour later, Boone
went to retrieve the bag but, noticing the vehicle from which police were
monitoring him, returned the bag to the car and drove away. Several times that
day, police saw him drive to and from the Johnson Avenue apartment complex.
That same evening, police followed Boone from Johnson Avenue to Main Street in
Hackensack, where they observed what appeared to be a hand-to-hand drug
transaction. Boone then drove back to the apartment complex.
On August 29, 2012, Detective Dennis Conway of the Bergen County
Prosecutor’s Office applied for a warrant to search Boone, his car, and Unit 4A
of 211 Johnson Avenue—identified as Boone’s apartment—among other things. The
detective did not note that the building was a thirty-unit apartment building,
nor did he provide any details about Unit 4A or how police knew Boone was a
tenant in that unit. Although the warrant application frequently mentions 211
Johnson Avenue, it never discusses the inside of the apartment building, and it
fails to mention Unit 4A other than in passing. However, the detective
concluded that “my investigation reveals that Boone is distributing Controlled
Dangerous Substances, 211 Johnson Avenue, Apartment 4A, Hackensack.”
The trial court subsequently issued a warrant to search Boone, his
residence, and his car. Police executed the search warrant on September 7,
2012, and found between one-half and five ounces of cocaine and an illegal
handgun in Unit 4A. They then arrested Boone. In February 2013, a grand jury
charged Boone with seven counts of drug, weapons, and child endangerment
offenses.
Boone sought
to suppress the evidence found in Unit 4A on the ground that the search warrant
lacked a factual basis to establish probable cause to search his apartment. The
trial court denied the motion. Although the court acknowledged that police
offered no support to justify a search of Unit 4A, it noted that Detective
Conway provided extensive details of the police surveillance of Boone. The
court found that Boone’s activity, coupled with the detective’s investigative
experience and Boone’s criminal history, established probable cause to search
Unit 4A. After the denial of his motion to suppress, Boone pled guilty to two
second-degree drug offenses.
The Appellate Division affirmed the denial of the motion to suppress in
an unpublished opinion. The panel held that the totality of the circumstances
presented in the affidavit justified a finding of probable cause for the
issuance of the search warrant. The panel found that the issuing judge had
“ample grounds to anticipate” that narcotics would be in Boone’s apartment
“given the furtive conduct of defendant the surveilling officers had observed
and his two recent apparent hand-to-hand drug transactions at another
location.”
The Court
granted certification. 227 N.J. 356 (2016).
HELD:
Because the warrant affidavit failed to provide specific information as to why
defendant’s apartment and not other units should be searched, the warrant
application was deficient. 2
1. The
search-and-seizure provision in Article I, Paragraph 7 of New Jersey’s
Constitution affords a higher level of protection for citizens than the Fourth
Amendment of the United States Constitution. Searches without a warrant are
presumed unreasonable unless they fall within an exception to the warrant
requirement.
2. The application for a warrant must satisfy the
issuing authority that there is probable cause to believe that a crime has been
committed, or is being committed, at a specific location or that evidence of a
crime is at the place sought to be searched. The requirement for a search
warrant is not a mere formality, and the showing necessary to secure one should
be based not merely on belief or suspicion, but on underlying facts or
circumstances which would warrant a prudent man in believing that the law was
being violated.
3. Reviewing courts accord substantial deference to
the discretionary determination resulting in the issuance of the search
warrant. Courts consider the totality of the circumstances and should sustain the
validity of a search only if the finding of probable cause relies on adequate
facts. The probable cause determination must be based on the information
contained within the four corners of the supporting affidavit, as supplemented
by sworn testimony before the issuing judge that is recorded contemporaneously.
The analysis into sufficient probable cause to issue a warrant for an arrest or
for a search involves two separate inquiries.
4. In State v. Keyes, the Court held that a
confidential informant’s tip could serve as the basis for issuing a warrant
provided that there is “substantial evidence in the record to support the
informant’s statements.” 184 N.J. 541, 555 (2005). Although police could not
observe the informant enter the home in that case, under the totality of the
circumstances, there was a sufficient basis to issue the warrant based on the
controlled drug buy. Id. at 559-60. The Court credited the informant’s past
contributions to drug sale arrests, his description of the defendant, the
controlled buy, and the fact that known drug users were entering and exiting
the area as contributing to the totality of the circumstances. Id. at 558-60.
Because police had that corroborating evidence and the informant’s tip linking
the defendant to the apartment, the Court held that the warrant had a
sufficient basis.
5. Here, no independent documentary evidence, such as
a voting record, utility bill, or lease, was offered to corroborate Boone’s
address. No neighbor, informant, or controlled transaction demonstrated that
Boone lived in Unit 4A. Police failed to provide the issuing judge a basis of
knowledge from which to conclude that contraband would be found in the
particular apartment. That is true regardless of whether the warrant application
provided a basis for Boone’s arrest because, as noted, probable cause to arrest
a suspect is not synonymous with probable cause to search that suspect’s
apartment. Police lacked the facts important in Keyes, namely a reliable
informant who could identify where Boone lived. Police here listed Boone’s
apartment unit as the targeted property in a conclusory manner, without any
evidential basis as to how they knew that specific unit in a thirty-unit
building contained contraband. The Court recognizes that the error here was
likely an innocent oversight by the police. However, because New Jersey does
not recognize an officer’s good faith alone as an exception to the warrant
requirement, the error demands reversal.
6. Because the
State’s warrant application did not include specific evidence as to why a judge
should issue a search warrant for a specific apartment unit, the search warrant
issued on the basis of that application was invalid. And, because the police
search of Unit 4A was not supported by a valid warrant or justified by an
exception to the warrant requirement, the search was unconstitutional.
Therefore, the Court suppresses all evidence seized from Boone’s apartment. The
Court emphasizes that judges issuing search warrants must scrutinize the
warrant application and tie specific evidence to the persons, property, or
items the State seeks to search. Without that specificity and connection to the
facts, the application must fail.
