Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Monday, December 18, 2017

No Good faith exception to police mistake in search warrant State v. Boone

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.