John J. Robertelli v. New Jersey Office of Attorney Ethics (075584) ( 2016 )

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
interest of brevity, portions of any opinion may not have been summarized).
State v. Chad Bivins (A-23-14) (074374)
Argued October 13, 2015 -- Decided April 20, 2016
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court considers whether a warrant -- authorizing the search of a residence suspected to
be involved in drug-trafficking activity and “all persons present” -- supported the off-premises search of two
individuals found in a car several houses down the street from the target residence.
On March 29, 2011, State Police officers planned to execute a no-knock search warrant at 1256 Park
Boulevard in Camden. The warrant permitted the police to search the residence for drugs and related contraband as
well as “all persons present reasonably believed to be connected to said property and investigation.” The affidavit
submitted in support of the search warrant stated that the target location was known to be “open for the sale of
narcotics twenty-four (24) hours a day, seven (7) days a week,” and described the process by which an individual
would obtain drugs from the people in the house. According to State Trooper Matthew Moore, a six-year member
of the State Police, the authorities were aware that people were moving “in and out of the house at all times,” and
that there could have been “a lot more occupants in there than what [the officers] had seen.” Therefore, precautions
were taken in the event there were many people to secure and search once the warrant’s execution began.
Trooper Moore testified that, “almost immediately” after being told that “entry was being made” into the
residence, he received another communication from an officer at the scene telling him that “[t]wo guys were leaving
the residence” and were “approaching” a grey Pontiac. As Moore drove up to his designated location, he observed a
grey Pontiac about five or six houses down the street from 1256 Park Boulevard. The vehicle was located on the
same block as the target residence and on the same side of the street. As Trooper Moore approached the grey
Pontiac, he saw two individuals seated in the car, later identified as defendant and his cousin. Trooper Moore did
not personally see defendant or his cousin leave 1256 Park Boulevard and enter the grey Pontiac. Moore and his
partner removed the men from the vehicle, searched them, and found thirty-five bags of cocaine on each of them.
Defendant was indicted for various drug offenses, and later filed a motion to suppress. Moore was the
State’s only witness at the suppression hearing. Defendant also testified, offering a different description of the
events. Defendant stated that he had driven to Camden to pick up his girlfriend, and that he and his cousin were
pulled from their car and arrested within two to five minutes of arriving at that location. Defendant denied having
any cocaine in his possession, but admitted to carrying $220 in cash. After hearing testimony from Trooper Moore
and defendant, the court denied the suppression motion. Notwithstanding that Trooper Moore could not testify to
seeing defendant leave the house, run to the Pontiac, and enter that vehicle, the court concluded that the search was
lawfully conducted pursuant to a warrant because “[m]ost individuals would believe it’s more probable than not”
that defendant and his cousin were the same individuals that were reported as being the persons that “were inside the
house moments before.” Defendant pleaded guilty to third-degree possession of cocaine with the intent to distribute
within 1,000 feet of a school, N.J.S.A. 2C:35-7, and was sentenced to three years of probation.
The Appellate Division reversed the trial court’s denial of defendant’s suppression motion. 435 N.J. Super.
519, 532 (App. Div. 2014). The panel relied on the United States Supreme Court’s recent decision in Bailey v.
United States, 133 S. Ct. 1031 (2013), in which the Court limited the right to detain individuals, in connection with
the search of a residence, to those persons in the immediate vicinity of the place to be searched. The panel
concluded that the probable cause for the warrant to search the premises here could not support the search of
defendant because the search did not take place in the “immediate vicinity” as described in Bailey. The panel also
identified no independent basis upon which defendant’s search and seizure could rest, and rejected the argument that
Trooper Moore had acted in an objectively reasonable manner.
The Court granted the State’s petition for certification. 220 N.J. 98 (2014).
HELD: Because the State did not provide adequate proof that the individuals found in a car had been present at the
targeted residence when the warrant was being executed moments before their apprehension, the warrant did not
provide authority for the search of the two off-premises individuals.
1. Defendant challenges a search that was commenced by a warrant permitting the police to search for drugs and
related contraband at 1256 Park Boulevard, as well as “all persons present reasonably believed to be connected to
[the] property.” The type of warrant involved in this matter was first approved in State v. De Simone, 60 N.J. 319(1972). The De Simone decision explained that the validity of a particular all-persons-present warrant appropriately
turns on whether “there is good reason to suspect or believe that anyone present at the anticipated scene will
probably be a participant [in the criminal operation].” Id. at 322. The Court held in De Simone that, “with regard to
the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general
warrant if the individual is thus identified by physical nexus to the on-going criminal event itself.” Ibid. Most
courts across the country that have considered a particularity challenge to an all-persons-present search warrant have
tracked the compelling rationale for authorizing use of such warrants expressed in De Simone. (pp. 14-15)
2. Defendant claims that the search of his person -- merely because he was sitting in a grey Pontiac located houses
away from the property to be searched -- was beyond the scope of the search warrant issued for 1256 Park
Boulevard. Because he was not found and searched on the premises that were the focus of the warrant, he claims his
search could not possibly have been based on the warrant. That argument proves too much. Nevertheless, the
search cannot be sustained. The State did not provide an adequate evidential basis linking defendant’s presence to
the location for which the all-persons-present search warrant was issued. Accordingly, this must be viewed as a
warrantless search that lacked probable cause to support the search of defendant when he was found in the parked
car. (p. 16)
3. The language of the search warrant bestowed on the executing officers the authority to search all individuals who
were present at the residence covered by the all-persons-present warrant. Practically viewed, that must also
authorize searches of persons seen departing from the scene of the search, provided that their presence at the scene
when the warrant is being executed is proven. The scope of the warrant -- covering searches of persons found at the
location of the criminal activity -- is not limited to the property’s curb or side border. However, there is a hole in the
factual narrative linking defendant to 1256 Park Boulevard: neither the communicating officer nor Trooper Moore
could present any evidentiary support indicating that defendant and his cousin were the same two men that
reportedly were departing the target residence. Because defendant’s presence at 1256 Park Boulevard was not
established, the search of his person fell outside the reach of the all-persons-present warrant. Had the State provided
the necessary factual link to support that defendant had left the premises as the search was unfolding and was found,
shortly thereafter, not far afield in the grey Pontiac, a different result could be supportable based on a reasonable
execution of the all-persons-present warrant. (pp. 16-19)
4. The Court parts company with the Appellate Division to the extent that the panel relied on Bailey, supra, 133 S.
Ct. 1031. Bailey discusses the limited authority to detain an occupant of a premises for which officers had a search
warrant; the case does not circumscribe the authority of officers to search individuals when the executing officers
possess an all-persons-present warrant. Based on the language of the search warrant here, officers were authorized
to search individuals present at the residence, and that could encompass persons fleeing from the execution of the
warrant, provided that their presence at the warrant’s focused location was proven. As already noted, that
connection was not proven, but the outcome of this matter is not and should not be viewed as rooted in Bailey. The
Court’s analysis is constructed from the foundation that De Simone established. (pp. 19-21)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE FERNANDEZ-VINA did
not participate.
2
SUPREME COURT OF NEW JERSEY
A-23 September Term 2014
074374
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CHAD BIVINS,
Defendant-Respondent.
Argued October 13, 2015 – Decided April 20, 2016
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 435 N.J. Super. 519 (App. Div.
2014).
Jane C. Schuster, Deputy Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
Lauren S. Michaels, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey Foundation (Edward L. Barocas,
Legal Director, attorney).
JUSTICE LaVECCHIA delivered the opinion of the Court.
In this appeal, we are called on to determine whether a
warrant -- authorizing the search of a residence suspected to be
involved in drug-trafficking activity and “all persons present”
1
-- supported the off-premises search of two individuals found in
a car several houses down the street from the target residence.
Because the State did not provide adequate proof that those
individuals had been present at the targeted residence when the
warrant was being executed moments before their apprehension, we
conclude that the warrant did not provide authority for the
search of the two off-premises individuals.
I.
The following facts are derived from the hearing on the
suppression motion filed by defendant, Chad Bivins, one of the
two men searched.
On March 29, 2011, State Police officers planned to execute
a no-knock search warrant at 1256 Park Boulevard in Camden
sometime between 11:00 p.m. and midnight. The warrant permitted
the police to search the residence for drugs and related
contraband as well as “all persons present reasonably believed
to be connected to said property and investigation.” The
affidavit submitted in support of the search warrant stated that
the target location was known to be “open for the sale of
narcotics twenty-four (24) hours a day, seven (7) days a week,”
and described the process by which an individual would obtain
drugs from the people in the house. The affidavit also
contained information that a confidential informant had observed
two men with weapons inside 1256 Park Boulevard when purchasing
2
narcotics at the residence. According to the affidavit, one
man, who was near the back door of the house when the
confidential informant went to purchase drugs, was observed to
have an “Uzi” style weapon in his hand; another man, from whom
the informant obtained the drugs, had an “AK-47” style rifle
next to his chair.
On the night that the search warrant was to be executed,
officers planned to enter the house through its back door.
State Trooper Matthew Moore, a six-year member of the State
Police, and his partner were designated to provide security near
the front of the house to ensure that no one entered or exited
the residence during the search. According to Trooper Moore’s
testimony at the suppression hearing, the State Police were
aware that people were moving “in and out of the house at all
times,” and that there could have been “a lot more occupants in
there than what [the officers] had seen.” Therefore,
precautions were being taken in the event there were many people
to secure and search once the warrant’s execution began. Other
officers were positioned around the house to participate in
executing the warrant.
Trooper Moore testified that, prior to the search, he was
in a car six or seven blocks from 1256 Park Boulevard.
According to his instructions, once the search began, he was to
move to his assigned post, which was a location about “five or
3
six houses away” from 1256 Park Boulevard. Trooper Moore was
responsible for securing the street corner of Park Boulevard and
Princess Avenue while the search warrant was being executed and
for monitoring activity at the home’s front door.
When Trooper Moore and his partner received the call that
the warrant’s execution had begun, they drove to the corner of
Park Boulevard and Princess Avenue. Moore testified that,
“almost immediately” after being told that “entry was being
made” into the residence, he received another communication via
radio or cell phone from a fellow officer at the scene telling
him that “[t]wo guys were leaving the residence” and were
“approaching” a grey Pontiac.1 The officer who made the call did
not testify and was not identified.
As Trooper Moore pulled up to his designated location, he
observed a grey Pontiac about five or six houses down the street
from 1256 Park Boulevard. The vehicle was located on the same
block as the target residence and on the same side of the
street. As Trooper Moore approached the grey Pontiac, he saw
two individuals seated in the car, later identified as defendant
1 At various points in his testimony, Trooper Moore referred to
being told “two guys” were, or “somebody” was, leaving the
residence. This discrepancy was not resolved as the
unidentified communicating officer never testified at the
suppression hearing.
4
and his cousin, Saiyd2 Jordan. Trooper Moore and his partner
removed defendant and Jordan from the vehicle, searched them,
and found thirty-five bags of cocaine on each of them.
According to Trooper Moore’s testimony, he did not personally
see defendant or Jordan leave 1256 Park Boulevard and enter the
grey Pontiac. Moore was the State’s only witness at the
suppression hearing.
Defendant also testified at the suppression hearing,
offering a different description of the events on March 29,
2011. Defendant stated that on that day he and his cousin drove
from Philadelphia to Camden to pick up defendant’s girlfriend,
and that he parked his vehicle on Park Boulevard, near where his
girlfriend lived and waited for her. Within two to five minutes
of arriving at that location, he and his cousin were pulled from
their car and arrested. According to defendant, the officers
then brought him and his cousin to a house that he had never
been to before. Defendant denied having any cocaine in his
possession that evening, but he admitted to carrying $220 in
cash on him.
Defendant was indicted for third-degree possession of
cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of
2 The Appellate Division referred to co-defendant as Sayid
Jordan; however, we are spelling co-defendant’s name as it
appears in the indictment.
5
cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1)
and 2C:35-5(b)(3); third-degree possession of cocaine with the
intent to distribute within 1,000 feet of a school, N.J.S.A.
2C:35-7; second-degree possession of cocaine with the intent to
distribute within 500 feet of a public housing facility, park,
or building, N.J.S.A. 2C:35-7.1 and 2C:35-5(a)(1); and third-
degree conspiracy to possess cocaine with the intent to
distribute, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), and 2C:35-5(b)(3).
In the pretrial proceeding conducted on defendant’s motion
to suppress, the motion court determined that defendant had to
prove that the search of his person was unconstitutional
“because there was a Search Warrant . . . and most important,
because the State’s theory is, is that the search was pursuant
to the explicit authority in that Warrant.” Accordingly, the
court placed on defendant “the initial burden of production . . .
not persuasion, of producing some evidence” to show that the
search fell “outside of the parameters of the Warrant.” If
defendant met that burden, according to the court, then the
“burden of persuasion [would] shift[] to the State.”
After hearing testimony from Trooper Moore and defendant,
but before making its determination, the court addressed
credibility. The court found Trooper Moore “highly credible.”
As for defendant, the court stated:
6
[W]hile [defendant] made a good witness, he
lost me when he indicated he had no cocaine on
him at all, he denied he had the thirty-five
packets of cocaine, he denied he had any of
the cash.3 So while I was with him to some
extent when he said that he was texting his
girlfriend and he had no involvement in it,
and the lack of the State’s evidence with
eyewitness testimony connecting him
specifically from the house to the vehicle,
remember there’s only hearsay that connects
[defendant] from the house to the vehicle, he
lost me when he testified he had no cocaine on
him.
The court does not believe that the State
Police would simply lie about cocaine being on
people.
In its analysis, the court explained that if the search
fell under the purview of the search warrant, then it was
lawful; however, if the search fell outside of the warrant’s
scope, then the search was unlawful because the State failed to
present any independent basis to justify the search. The court
reasoned that, when broken down into its “simplest parts,” the
case consists of “an allegation that two people ran from the
scene of a house where allegedly there was criminal activity,
. . . they ran to a specified car, a grey Pontiac, [and] moments
later two individuals were found inside the grey Pontiac.”
Notwithstanding that Trooper Moore could not testify to seeing
defendant leave the house, run to the Pontiac, and enter that
3 Contrary to this finding, defendant admitted that he had $220
on his person at the time of his arrest.
7
vehicle, the court concluded that the search was lawfully
conducted pursuant to a warrant because “[m]ost individuals
would believe it’s more probable than not” that defendant and
his cousin were the same individuals that were reported to
Trooper Moore in the second call as being the persons that “were
inside the house moments before.” Thus, the court denied the
suppression motion.
Defendant thereafter pleaded guilty to third-degree
possession of cocaine with the intent to distribute within 1,000
feet of a school, N.J.S.A. 2C:35-7. He was sentenced to three
years of probation.
The Appellate Division reversed the trial court’s denial of
defendant’s suppression motion. State v. Bivins, 435 N.J.
Super. 519, 532 (App. Div. 2014). The panel framed the issue as
“whether the scope of the permissible area and persons to be
searched, pursuant to a search warrant, extends to the location
where defendant . . . [was] found, seated in a Pontiac, parked
five or six houses away from the premises where a search warrant
was being executed.” Id. at 521-22. In resolving that issue,
the panel relied on the United States Supreme Court’s recent
decision in Bailey v. United States, __ U.S. __, 133 S. Ct.
1031, 185 L. Ed. 2d 19 (2013), in which the Court limited the
right to detain individuals, in connection with the search of a
residence, to those persons in the immediate vicinity of the
8
place to be searched. Id. at 522. The panel concluded that the
probable cause for the warrant to search the premises here could
not support the search of defendant because the search did not
take place in the “immediate vicinity” as described in Bailey.
Id. at 529.
In support of its decision, the panel noted that Trooper
Moore did not personally observe the two men leaving the target
residence or entering the grey Pontiac; rather, he simply found
defendant and Jordan sitting in the Pontiac, which was parked
five or six houses away from the target residence. Id. at 528.
Additionally, the panel emphasized that all parties agreed that
the affidavit in support of the search warrant did not
specifically identify defendant, Jordan, or the grey Pontiac.
Ibid. And, although the panel acknowledged that “defendant was
in closer proximity to the residence being searched than the
petitioner in Bailey, who was one mile away from the scene of
the search, he was spatially still ‘beyond the immediate
vicinity of the premises to be searched.’” Ibid. (quoting
Bailey, supra, __ U.S. at __, 133 S. Ct. at 1041, 185 L. Ed. 2d
at 32).
Moreover, the panel identified no independent basis upon
which defendant’s search and seizure could rest. Id. at 530-31.
The officers did not observe defendant engaging in any
suspicious, let alone illegal, activity. Ibid. The panel
9
further noted that “there is no indication that either defendant
or Jordan were aware the premises were being searched.” Id. at
530.
Finally, the panel rejected the argument that Trooper Moore
had acted in an objectively reasonable manner. Id. at 531.
According to the panel, the information conveyed to Trooper
Moore -- that two men were leaving the target residence and
approaching a Pontiac -- was insufficient to demonstrate
“whether the person(s) seen approaching the grey Pontiac
actually entered it.” Id. at 528. The panel concluded that,
given the information that Trooper Moore had received, “it may
have been reasonable to detain defendant, but it was not
objectively reasonable to seize him and conduct the full search
that followed.” Id. at 531-32.
Based on those reasons, the panel reversed the denial of
defendant’s suppression motion. Id. at 532. We granted the
State’s petition for certification. State v. Bivins, 220 N.J.
98 (2014). We also granted amicus curiae status to the American
Civil Liberties Union of New Jersey (ACLU-NJ).
II.
The State argues that the Appellate Division’s application
of Bailey was in error because here the search warrant
authorized not just the search of premises but also the search
of “all persons present reasonably believed to be connected to
10
said property and investigation.” The State contends that “the
same probable-cause finding that justified a search of the ‘two
guys’ at the property did not dissipate merely because they were
beyond the curtilage of the property.” To hold otherwise, the
State maintains, would encourage flight: if the subjects of a
warrant can only manage to get beyond the property’s curb line
before being apprehended, then they earn the windfall of
suppression.
Defendant emphasizes that the terms of the warrant
permitted a search only of those present at 1256 Park. An off-
premises search, according to defendant, especially one based on
only a vague notion connecting the occupants of a nearby car
with the premises, reaches “far beyond both the language of the
warrant itself, and the justification underlying the
authorization to search unnamed individuals based on their
presence.” Moreover, defendant contends that the trial court
erred by placing a burden on defendant in the suppression
hearing, forcing him to prove a negative. Last, defendant
challenges the sufficiency of the trial court’s factual finding
that defendant was present at 1256 Park when police began
executing the warrant. Because there was no testimony that
identified defendant as the person leaving the house, defendant
argues that the trial court’s finding lacked substantial
credible evidence.
11
The ACLU-NJ emphasizes that the State should bear the
burden of proof and production when challenging a search that
occurs outside of the location specified in a search warrant.
The ACLU-NJ also bolsters the arguments of defendant, contending
that there was no probable cause to believe that defendant had
been at the location described in the warrant because (1) there
was no description of the people leaving the house that would
have indicated that defendant and Jordan resembled the
unidentified individuals, and (2) evidence that someone is
“approaching” a vehicle does not mean that the person actually
entered it.
III.
A.
The Fourth Amendment of the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution offer
protection against “unreasonable searches and seizures” carried
out by government officials. U.S. Const. amend. IV; N.J. Const.
art. I, ¶ 7. “[O]ur constitutional jurisprudence expresses a
preference that . . . officials secure warrants issued by
neutral and detached magistrates before executing a search,
particularly of a home.” State v. Frankel, 179 N.J. 586, 597-98
(citations omitted), cert. denied, 543 U.S. 876, 125 S. Ct. 108,
160 L. Ed. 2d 128 (2004), overruled in part by State v. Edmonds,
211 N.J. 117, 131-32 (2012). Fundamental to both the federal
12
and state right is the idea that “[a] search conducted without a
warrant is presumptively invalid.” Id. at 598. Thus, the State
has the burden of showing that one of the “judicially cognizable
exception[s] to the warrant requirement” applies to the
warrantless search. State v. Valencia, 93 N.J. 126, 133 (1983);
see also State v. Brown, 132 N.J. Super. 180, 185 (App. Div.
1975) (“It is well settled that in warrantless search cases the
ultimate burden of proof rests upon the State to justify the
propriety of its actions.”).
Conversely, when a search is based on a warrant, the search
is presumptively valid. Valencia, supra, 93 N.J. at 133. When
contesting the search at a suppression hearing, the defendant
must prove that the warrant was based on insufficient probable
cause to justify its issuance or that the execution of the
search was unreasonable. Ibid. “When a search or seizure is
made pursuant to a warrant, the probable cause determination
must be made 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.” Schneider v. Simonini, 163 N.J. 336, 363
(2000) (citations omitted), cert. denied, 531 U.S. 1146, 121 S.
Ct. 1083, 148 L. Ed. 2d 959 (2001). A particularity requirement
governs the scope of search warrants, mandating that the warrant
specifically describe the search location so that an officer can
13
reasonably “ascertain and identify the place intended” to be
searched, as authorized by the magistrate’s probable cause
finding. State v. Marshall, 199 N.J. 602, 611 (2009) (quoting
Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416,
69 L. Ed. 757, 760 (1925)).
B.
Defendant challenges a search that was commenced by a
warrant permitting the police to search for drugs and related
contraband at 1256 Park Boulevard, as well as “all persons
present reasonably believed to be connected to [the] property.”
State v. De Simone, 60 N.J. 319 (1972), first approved of
the type of warrant involved in this matter. Chief Justice
Weintraub, the author of De Simone, dissected the argument that
all-persons-present warrants should be universally condemned as
blanket or general warrants because such warrants authorize the
search of an indeterminate number of people without naming
persons specifically. Id. at 321. The De Simone decision
explained that the validity of a particular all-persons-present
warrant appropriately turns on whether “there is good reason to
suspect or believe that anyone present at the anticipated scene
will probably be a participant [in the criminal operation].”
Id. at 322.
On principle, the sufficiency of a warrant to
search persons identified only by their
presence at a specified place should depend
14
upon the facts. A showing that lottery slips
are sold in a department store or an
industrial plant obviously would not justify
a warrant to search every person on the
premises, for there would be no probable cause
to believe that everyone there was
participating in the illegal operation. On
the other hand, a showing that a dice game is
operated in a manhole or in a barn should
suffice, for the reason that the place is so
limited and the illegal operation so overt
that it is likely that everyone present is a
party to the offense.
[Id. at 321-22.]
Thus, the location “furnishes not only probable cause but
also a designation of the persons to be searched which
functionally is as precise as a dimensional portrait of them.”
Id. at 322. The Court held in De Simone that, “with regard to
the Fourth Amendment demand for specificity as to the subject to
be searched, there is none of the vice of a general warrant if
the individual is thus identified by physical nexus to the on-
going criminal event itself.” Ibid.Most courts across the country that have considered a
particularity challenge to an all-persons-present search warrant
have tracked the compelling rationale for authorizing use of
such warrants expressed in De Simone. See Wayne R. LeFave,
Search and Seizure: A Treatise on the Fourth Amendment, §4.5(e)
(5th ed. 2012) (“Most of the decisions either upholding or
striking down particular warrants of the De[]Simone variety
15
conform, at least in terms of the result reached, to the
analysis of that case.”).
IV.
A.
In this matter, defendant claims that the search of his
person –- merely because he was sitting in a grey Pontiac
located houses away from the property to be searched -- was
beyond the scope of the search warrant issued for 1256 Park
Boulevard. Because he was not found and searched on the
premises that were the focus of the warrant, he claims his
search could not possibly have been based on the warrant. That
argument proves too much. Nevertheless, we agree with the
Appellate Division that this search cannot be sustained. We
conclude that the State did not provide an adequate evidential
basis linking defendant’s presence to the location for which the
all-persons-present search warrant was issued. Accordingly,
this must be viewed as a warrantless search that lacked probable
cause to support the search of defendant when he was found in
the parked car.
To begin, the language of the search warrant bestowed on
the executing officers the authority to search all individuals
who were present at the residence covered by the all-persons-
present warrant. Practically viewed, that must also authorize
searches of persons seen departing from the scene of the search,
16
provided that their presence at the scene when the warrant is
being executed is proven. The particularity requirement for
such warrants depends on presence at a location where criminal
activity is reasonably believed to involve all persons present.
See De Simone, supra, 60 N.J. at 321-22. The scope of the
warrant -- covering searches of persons found at the location of
the criminal activity –- is not limited to the property’s curb
or side border. However, there is a hole in the factual
narrative linking defendant to 1256 Park Boulevard, a gap that
proves fatal to the State’s argument that it had the right under
the all-persons-present warrant to search defendant.
Trooper Moore received a communication from another officer
who was executing the search warrant at 1256 Park Boulevard that
two men were leaving the house and approaching a grey Pontiac.
But the communicating officer did not testify at the suppression
hearing, and nothing in the record indicates that the
communicating officer actually saw the two men enter the
Pontiac. By the time Trooper Moore arrived at his designated
post in the vicinity of the premises to be searched, defendant
and his cousin were seated inside a grey Pontiac. However,
Trooper Moore did not see them leave 1256 Park Boulevard and
enter the Pontiac. Moore –- the lone testifying officer at the
suppression hearing -- could not provide the evidential links
necessary to support the conclusion that defendant and his
17
cousin, seated in the car, had been among the persons present in
the premises authorized to be searched. That gap in observation
cannot be overcome by an inference that these two men “must have
been” the two men who, according to the communicating officer
radioing Trooper Moore, were leaving by the front door of the
residence as the search began. The gap leaves open the
reasonable possibility that defendant may not have been a person
present at the property subject to the search warrant authorized
for 1256 Park Boulevard.
Our decision focuses, as it must, on the evidence presented
at the suppression hearing. Had the communicating officer seen
the two men leave the target residence and enter the grey
Pontiac, his statement to that effect to Trooper Moore, although
hearsay, would have been admissible through Moore’s testimony at
the suppression hearing. Indeed, “hearsay is permissible in
suppression hearings, subject to N.J.R.E. 104(a).” State v.
Watts, 223 N.J. 503, 519 n.4 (2015); see also State v. Gibson,
429 N.J. Super. 456, 466 (App. Div. 2013) (stating that
suppression hearing “may include evidence inadmissible in the
trial on the merits,” and that “[t]he Rules of Evidence do not
apply in the suppression hearing, except as to N.J.R.E. 403 and
claims of privilege” (citing N.J.R.E. 104(a))), rev’d on other
grounds, 219 N.J. 227 (2014). However, a key evidential link is
missing in this case: neither the communicating officer nor
18
Trooper Moore could present any evidentiary support indicating
that defendant and Jordan were the same two men that reportedly
were departing the target residence.
Because defendant’s presence at 1256 Park Boulevard was not
established, we hold that the search of his person fell outside
the reach of the all-persons-present warrant. See De Simone,
supra, 60 N.J. at 322. A different holding would be contrary to
De Simone’s principles. We will not stretch De Simone’s careful
support for satisfaction of the particularity requirement to
“fix” the evidential problem created by the inadequate record in
this case. This defendant simply was not sufficiently tied to
the location that provided probable cause for a search based on
the warrant. Importantly, our holding is not based on the mere
fact that the search took place off of, but not far from, the
property covered by the warrant. Had the State provided the
necessary factual link to support that defendant had left the
premises as the search was unfolding and was found, shortly
thereafter, not far afield in the grey Pontiac, a different
result could be supportable based on a reasonable execution of
the all-persons-present warrant.
B.
We part company with the Appellate Division to the extent
that it relied on Bailey, supra, __ U.S. __, 133 S. Ct. 1031,
185 L. Ed. 2d 19.
19
In Bailey, police officers obtained a warrant to search a
residence for a handgun and used that search warrant as a basis
for justifying the detention and pat-down search of two men who
were observed leaving the target residence, but who were not
stopped and searched until they were about one mile away. Id.at __, 133 S. Ct. at 1036, 185 L. Ed. 2d at 26-27. The United
States Supreme Court held that, although Michigan v. Summers,
452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), permits
officers to detain occupants of a residence during the execution
of a search warrant for the premises, even absent individualized
suspicion, that rule was necessarily circumscribed by a “spatial
constraint” to the premises to be searched. Bailey, supra, __
U.S. at __, 133 S. Ct. at 1041-42, 185 L. Ed. 2d at 33. As the
Court explained, “[o]nce an individual has left the immediate
vicinity of a premises to be searched, . . . detentions must be
justified by some other rationale.” Id. at __, 133 S. Ct. at
1043, 185 L. Ed. 2d at 34.
In the present matter, the Appellate Division utilized
Bailey’s rationale when analyzing the search of defendant. In
applying Bailey to the facts of this case, the panel determined
that defendant and his co-defendant, who were searched when they
were approximately six houses away from the residence where the
search warrant was being executed, were beyond the spatial
constraint of the “immediate vicinity of the premises.” Bivins,
20
supra, 435 N.J. Super. at 528 (citation omitted). We disapprove
of the part of the panel’s reasoning that relies on Bailey
because it is an inapt fit for the present matter.
The search warrant in Bailey contained no language
permitting officers to search anyone present at the residence;
thus, the officers were able to detain an individual at the
residence only for the purposes of protecting officer safety,
facilitating the completion of the search, and preventing
flight. See Bailey, supra, __ U.S. at __, 133 S. Ct. at 1038,
185 L. Ed. 2d at 29. Bailey discusses the limited authority to
detain an occupant of a premises for which officers had a search
warrant; the case does not circumscribe the authority of
officers to search individuals when the executing officers
possess an all-persons-present warrant. Based on the language
of the search warrant here, officers were authorized to search
individuals present at the residence, and that could encompass
persons fleeing from the execution of the warrant, provided that
their presence at the warrant’s focused location was proven. As
already noted, that connection was not proven, but the outcome
of this matter is not and should not be viewed as rooted in
Bailey.
V.
In sum, our analysis is constructed from the foundation that De
Simone established. With De Simone as our guide, we conclude
21
that the State did not demonstrate that the all-persons-present
search warrant for 1256 Park Boulevard covered the search of
defendant, who was found several houses away seated in a parked
car. The proofs did not provide the factual links necessary to
demonstrate that defendant had been present at the unfolding
scene of the warrant’s execution, which could have made him
subject to search under the all-persons-present warrant. The
inferences relied on to supply missing links in the narrative do
not satisfy the particularity requirement in this setting.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
LaVECCHIA’s opinion. JUSTICE FERNANDEZ-VINA did not
participate.
22
SUPREME COURT OF NEW JERSEY
NO. A-23 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CHAD BIVINS,
Defendant-Respondent.
DECIDED April 20, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRMED
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6