State v. Nieves

476 N.J.Super. 405

300 A.3d 291

STATE of New Jersey, Plaintiff-Respondent, v. Tyshon M. NIEVES, a/k/a Tyshon Nieves, Defendant-Appellant.

DOCKET NO. A-3379-21

Superior Court of New Jersey, Appellate Division.

Argued May 3, 2023

Decided August 9, 2023

Margaret Ruth McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret Ruth McLane, of counsel and on the brief).

Boris Moczula, Deputy Attorney General, argued the cause for respondent ( Matthew J. Platkin, Attorney General, attorney; Boris Moczula, of counsel and on the brief).

Before Judges Accurso, Vernoia and Natali. ¹

The opinion of the court was delivered by

VERNOIA, J.A.D.

In this matter we determine whether law enforcement officers executing a knock-and-announce search warrant on a residence in the early morning hours violated defendant Tyshon M. Nieves's constitutional rights by failing to wait a reasonable time after knocking and announcing their presence to forcibly enter the residence. We also consider whether a violation of the constitutional requirement that officers executing a knock-and-announce search warrant wait a reasonable time after knocking and announcing their presence requires exclusion of the evidence seized during the subsequent search. Based on our review of the record, we determine the law enforcement officers did not wait a reasonable time after knocking and announcing their presence to forcibly enter the residence, and, as a result, the evidence seized during the subsequent search should have been suppressed.

I.

Police arrested defendant following the execution of a knock-and-announce search warrant and seizure of heroin and a handgun at an Atlantic City home in which he occasionally stayed with his girlfriend, her child, her two juvenile brothers, and her mother. ² A grand jury returned an indictment charging defendant with third-degree possession of heroin, third-degree distribution of heroin, second-degree distribution of heroin within 500 feet of the Atlantic City boardwalk, and second-degree possession of a firearm by a certain person prohibited from possessing weapons.

Defendant filed a motion to suppress the evidence seized from the residence, arguing the police did not wait a reasonable time prior to forcibly entering the premises after knocking and announcing their presence. The trial court denied the suppression motion, and defendant later pleaded guilty to the possessory weapons offense in exchange for the State's recommendation of a five-year sentence with a five-year period of parole ineligibility and dismissal of the remaining charges. Following the court's imposition of the recommended sentence, defendant filed this appeal challenging the court's denial of the suppression motion.

The New Jersey Division of Criminal Justice and the New Jersey State Police obtained a warrant to search the Atlantic City residence, which the warrant affidavit described as a "two story duplex" with a front and rear door and a detached garage with a side door and a "garage door ...." The warrant authorized execution of the search warrant "between the hours of 5:00 a.m. and 11:59 p.m. by first knocking and announcing [the officers’] presence" and the seizure of items concerning controlled-dangerous-substance-related offenses.

At the hearing on defendant's motion to suppress the seized evidence, New Jersey State Police Sergeant Bernard Tennant testified he was not involved in the investigation that resulted in the application for, and issuance of, the search warrant. Instead, Sergeant Tennant led a team of fifteen officers who were assigned to execute the search warrant. Sergeant Tennant understood the warrant required the officers first knock-and-announce before entering the home, and he explained he did so by knocking loudly on the home's front door and stating, "State Police, search warrant. State Police, search warrant."

Sergeant Tennant further explained the officers gained entry to the home by using a breaching element — a battering ram — to "knock-in" the home's front door. The fifteen officers entered the home after the door was breached.

Sergeant Tennant did not know "how long a period of time" elapsed from when he first knocked and announced the officers’ presence to the breach of the door with the battering ram. Sergeant Tennant explained he does not "think of time" while "out there." Sergeant Tennant acknowledged there is a "legal requirement" that officers "need to wait a period of time before [they] knock, announce, and then breach the door[.]" He also said he had "no idea how long" after he first knocked and announced the officers’ presence that they breached the front door with the battering ram.

Sergeant Tennant was "one of the last" officers to enter the home after the door was breached. As a result, he did not have "any idea" who was in the home or what their circumstances were at the time of the officers’ entry. He testified there were "people" in the residence, but he did not recall their ages or how many there were.

Defendant called Lavida Jones as a witness at the suppression hearing. ³ Lavida Jones testified she rented the residence police searched and resided there with her fourteen-year-old and seven-year-old sons, her two-year-old granddaughter, and her daughter, Kanaya Jones. Lavida Jones explained defendant is Kanaya Jones's boyfriend. Lavida Jones testified defendant did not reside at the home but would "come[ ] over sometimes," and he was present at her home when the police executed the search warrant.

Lavida Jones testified the officers executed the search warrant "[a]t about five in the morning ...." At that time, she was asleep with her seven-year-old son on a sectional couch located about two feet from the front door. She first heard a "bang[,]" then heard the officers "announce[,]" and, "by the time she jumped up and got to the door[,]" the door was "already off the hinges." Lavida Jones explained she did not have pants on, and the officers who entered would not let her put clothes on. When asked how much time passed between her hearing the officers’ first announcement and their forcible entry into her home, Lavida Jones stated only that "it wasn't even five minutes ...."

Lavida Jones identified a video and audio recording she obtained from a security camera from an adjacent home owned by her landlord. She testified the recording shows the officers knocking and announcing themselves until they knocked her "door down." The recording was admitted in evidence at the suppression hearing.

Kanaya Jones also testified. She explained defendant is her boyfriend and she and defendant shared a bedroom at the rear of the home's second floor when the officers executed the search warrant. She heard a bang at about 5:00 a.m. and then next heard officers rushing into the home and up the stairs. She testified the officers then broke through her locked bedroom door. The officers immediately took defendant from her bed, removed him from the room, and told her to put pants on before also removing her from the room. Kanaya Jones testified that from her bedroom's location at the rear of the home's second floor, she could "[p]robably not" hear anyone speaking from outside the front door.

The court issued a written decision on defendant's motion. The court noted defendant's argument the search was unlawful because the officers waited only six seconds after first knocking and announcing their presence before forcibly entering the home. Defendant claimed the purported six seconds the officers waited to enter the home following the first knock-and-announce was an unreasonably short period of time and therefore the ensuing search was unlawful.

The court explained the State argued entry into the home was lawful because Sergeant Tennant knocked and announced the officers’ presence three separate times prior to the entry. The court also determined the evidence rendered it "unclear" whether the entry occurred within six seconds of the first knock-and-announce as defendant claimed. The court also noted the State's argument that even if the officers did not wait a reasonable time to enter the home following the first knock-and-announce, suppression of the evidence was not the appropriate remedy.

The court made credibility determinations, finding the three witnesses — Sergeant Tennant, Lavida Jones, and Kanaya Jones — "testified concisely and believably." The court further explained it reviewed the video recording and determined it showed the following:

[T]he executing officers knock[ed] six bangs on the front door. The officer then shout[ed], "State Police! Search Warrant." The officer then immediately follow[ed] up with knocking on the door with five more bangs, and again repeat[ed], "State Police! Search Warrant!" The officer then knock[ed] on the door with four more bangs. Finally, the officer announc[ed] a third time, "State Police! Search Warrant!" At that point, what sound[ed] like a K-9 dog can be heard barking and the video footage ends.

Based on its review of the recording, the court determined it could not "ascertain ... the exact time between the initial knocking and announcing of the police's presence and their entry into the home." The court noted defendant claimed the time between the first knock-and-announce and entry into the home was six seconds. Based on its review of the recording, however, the court found only that there "appears to be eight seconds from the first knock until the video abruptly ends." According to the court, "[w]hat is clear from the footage, however, is that the [officers] effectuated several rounds of knocks and several rounds of announcing, ‘State Police! Search Warrant!’ at a high volume."

The court also explained "[t]he Fourth Amendment requires that the police must knock and announce on the door of the premises to be searched before using force to enter the location," and that, "[u]nder New...