Later obtained search warrant does not correct prior illegal warrantless search. State v. Atwood232 N.J. 433 (2018

Later obtained search warrant does not correct prior illegal warrantless search. State v. Atwood232 N.J. 433 (2018). 

       Search warrants are prospective in nature—they authorize the taking of action. A later-obtained search warrant does not retroactively validate preceding warrantless conduct that is challenged through a suppression motion focused on the legitimacy of the seizure that gave rise to a later search. The State must bear the burden of proving the legitimacy of the seizure that led to a later warrant and search—in this case the stop.

State v. Atwood 232 NJ 433(2018) -- Decided March 29, 2018 

TIMPONE, J., writing for the Court. 

In this appeal, the Court considers whether a search warrant granted after police performed an investigatory automobile stop can retroactively validate the stop and insulate the State from bearing, in a suppression hearing, the burden of demonstrating reasonable and articulable suspicion for the initial seizure of the moving vehicle. 

On June 12, 2015, the Lakewood Police Department (LPD) received a call regarding a disturbance. Sergeants Pederson and Miick of the LPD responded to the area and conducted a motor vehicle stop of an automobile driven by defendant Aharon Atwood, in which co-defendant Shalom Mizrahi was a passenger. According to the search warrant affidavit, Sergeant Miick observed Atwood’s vehicle pull “over to the side of the road with a front driver’s side head light out,” then “quickly leave the area as the marked unit was observed.” 

Defendants disputed the basis for the stop, asserting that both headlights were operational and denying any evasive behavior. The Mobile Video Recording (MVR), according to defendants, indicates that Atwood did not commit any motor vehicle violation. 

After Sergeant Miick activated the overhead lights, Atwood immediately pulled the vehicle to the side of the road. Both officers approached the vehicle and questioned defendants about the disturbance on Ford Avenue. Mizrahi explained that he had been the victim of a robbery. The officers then questioned defendants about an apparent marijuana odor emanating from the vehicle. While questioning defendants, Sergeant Miick reportedly detected traces of marijuana, in plain view, on the driver’s side floor. The officers requested an Ocean County Sheriff’s K-9 narcotics dog to respond to the scene and removed defendants from the vehicle. The K-9 gave a “positive hit” on the vehicle’s trunk. Police impounded the vehicle and placed both defendants under arrest.
Later that evening, Officer Nathan Reyes of the LPD obtained a search warrant for the vehicle. Police executed the warrant soon thereafter, uncovering marijuana and cocaine in the rear interior passenger area of the car. On August 26, 2015, an Ocean County Grand Jury handed up an indictment charging each defendant with four drug offenses. 

Defendants filed a motion to suppress evidence seized “without a warrant.” In response, the State challenged that framing of the issue and relied on the search warrant to validate the initial stop. The trial court held a conference with defense counsel and the State. The parties engaged in substantial argument regarding the manner in which the motion should proceed and which party would have the burden at each phase. The court noted the existence of “warrantless aspects” to the suppression motion. Based on the conference, the trial court issued an updated scheduling order and directed the State to establish the legality of the “warrantless aspects” of the motion— namely, the initial motor vehicle stop. Defendants would bear the burden on any challenges to the validity of the subsequent search warrant. 

On the day of the suppression hearing, instead of presenting proofs to establish the legality of the stop, the State again requested that the court shift the entire burden to the defense. The trial court ordered the proceeding to begin with the State having the initial burden of proof. The State announced that it would not go forward with evidential proceedings. The court admonished the State and ordered that it begin with the presentation of testimony. The State called no witnesses. Finding that the State had failed to meet its burden, the court granted defendants’ motion to suppress. The court suppressed all evidence seized—including the evidence seized pursuant to the search warrant under the “fruit of the poisonous tree” doctrine. 

The State filed a motion for leave to appeal to the Appellate Division, which promptly denied that motion. The Court granted the State leave to appeal. 229 N.J. 255 (2017). 

1

HELD: Search warrants are prospective in nature—they authorize the taking of action. A later-obtained search warrant does not retroactively validate preceding warrantless conduct that is challenged through a suppression motion focused on the legitimacy of the seizure that gave rise to a later search. The State must bear the burden of proving the legitimacy of the seizure that led to a later warrant and search—in this case the stop. 

1. Motor vehicle stops are seizures for Fourth Amendment purposes. An officer may stop a motor vehicle only upon articulable and reasonable suspicion that a criminal or motor vehicle violation has occurred. Before trial, a defendant claiming to be aggrieved by an unreasonable search or seizure may apply to suppress the evidence seized, whether the search or seizure was executed with a warrant or constitutes a warrantless search. R. 3:5-7(a).   

2. The proper mechanism through which to explore the constitutionality of warrantless police conduct is an evidentiary hearing. At evidentiary hearings, the State presents witnesses to substantiate its basis for the challenged warrantless conduct, and the defense is afforded the opportunity to confront and cross-examine the State’s witnesses. N.J.R.E. 104 hearings provide an opportunity to probe adverse evidence through cross-examination, and New Jersey courts have recognized the importance of the ability to question witnesses in case of factual disputes.  

3. Here, there was clearly a dispute as to material facts, and that factual dispute directly related to whether defendants were in compliance with the traffic code. The trial court properly directed that an evidentiary hearing be held in order for the State to satisfy its burden of proving that reasonable and articulable suspicion supported the warrantless seizure of defendants’ moving vehicle. At the hearing, the State chose not to present any witnesses to justify the investigatory stop that preceded the application for a search warrant. But because the warrantless conduct of seizing defendants’ car was presumptively unreasonable and therefore invalid, the burden remained on the State to establish by a preponderance of the evidence that there was no constitutional violation. The State had to prove the reasonable and articulable suspicion to justify the initial stop. The statements in the warrant affidavit were not enough to carry that evidentiary burden. Defendants were entitled to cross-examine the officers who made those statements to test, among other things, the officers’ vision and perspective in observing the perceived traffic violation, as well as whether the MVR conflicts with the officers’ account. The warrant affidavit is not a substitute for the officers’ testimony and therefore did not suffice to justify the stop.   

4. On a motion to suppress evidence for which a warrant was obtained, the trial court’s review is limited to the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously. Here, the State properly identified the history leading up to the request for a search warrant in its affidavit. Context is important and helpful to the examining judge. Moreover, in a challenge to the validity of a search warrant, reviewing courts consider significant omissions from affidavits in assessing whether the warrant was supported by probable cause. That does not mean, however, that the grant of a forward-looking warrant can validate actions already taken. The State must provide evidence to support the reasonableness of the suspicion that led to the stop that can be tested through the adversarial process. That process would be defeated if the grant of a warrant could retroactively sanction a warrantless seizure. The trial court here afforded to the State ample opportunity to support the stop and scheduled a motion hearing for the determination of reasonable suspicion. Because the State presented no other evidence, the State did not carry its burden to prove the validity of the stop.   

5. Here, there is no evidence that defendants’ car would have been searched if not for the unsupported stop.
Without the stop, the officers would not have smelled marijuana, would not have called for a canine sniff, and would not have sought a warrant. The search was unquestionably incident to the stop, and the evidence obtained through the search was thus subject to suppression.   

The order of the trial court is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ- 

VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.