Opinion
DOCKET NO. A-6166-09T2
08-09-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN J. ROCKFORD, III, a/k/a JOHN ROCKFORD, Defendant-Appellant.
Steven E. Nelson argued the cause for appellant (Nelson, Fromer, Crocco and Jordan, attorneys; Mr. Nelson, of counsel and on the brief; Jeffrey Zajac, on the brief). Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Baxter and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-11-02609.
Steven E. Nelson argued the cause for appellant (Nelson, Fromer, Crocco and Jordan, attorneys; Mr. Nelson, of counsel and on the brief; Jeffrey Zajac, on the brief).
Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief). PER CURIAM
After a negotiated plea of guilty, defendant John J. Rockford, III appeals the March 10, 2010 denial of his motion to suppress the large quantity of various controlled dangerous substances (CDS) found in his home on August 24, 2007. Defendant argues that the planned use of a flash-bang device outside his open garage door before knocking and announcing at the front door violated the knock-and-announce warrant issued by a Superior Court judge who denied the police request for a no-knock warrant. Defendant argues that this violation should result in the suppression of the evidence. After reviewing the record in light of the contentions advanced on appeal, we find the police disregard of the knock-and-announce provision of the warrant and use of a flash-bang device requires the suppression of all evidence.
On November 19, 2008, a Monmouth County Grand Jury indicted defendant on all fourteen counts of Indictment No. 08-11-2609, charging defendant with: fourth-degree possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10a(3) (count one); third-degree possession of more than an ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(11) (count two); attempted distribution of more than an ounce of marijuana, N.J.S.A. 2C:35-5b(11) (count three); third-degree possession of psilocybin, N.J.S.A. 2C:35-10a(1) (count four); third-degree possession of psilocybin with intent to distribute, N.J.S.A. 2C:35-5b(13) (count five); third-degree possession of lysergic acid diethylamide (LSD), N.J.S.A. 2C:35-10a(1) (count six); first-degree possession of LSD with intent to distribute, N.J.S.A. 2C:35-5b(6) (count seven); third-degree possession of methylenedioxymethamphetamine or "Ecstasy" (MDMA), N.J.S.A. 2C:35-10a(1) (count eight); third-degree possession of MDMA with intent to distribute, N.J.S.A. 2C:35-5b(3) (count nine); third-degree possession of prescription drugs (count ten); third-degree possession of prescription drugs with intent to distribute, N.J.S.A. 2C:35-5b(5) (count eleven); fourth-degree interception of emergency communications for unlawful purposes, N.J.S.A. 2C:33-21 (count twelve); fourth-degree possession of a radio to intercept emergency communications while committing or attempting to commit a crime, N.J.S.A. 2C:33-22 (count thirteen); and fourth-degree unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3j (count fourteen).
The indictment incorrectly charged defendant with unlawful possession of CDS on August 24, 2008, although the record clearly established that the search took place on August 24, 2007.
After his motion to suppress was denied, defendant entered a guilty plea to count seven, first-degree possession of LSD with intent to distribute, and count eleven, third-degree possession of prescription drugs with intent to distribute, in return for the dismissal of the remaining charges. Defendant reserved the right to appeal the denial of his motion to suppress pursuant to Rule 3:5-7(d).
On July 9, 2010, pursuant to the Brimage Guidelines, the court sentenced defendant to a term of ten years in prison with a three-year period of parole ineligibility and a twelve-month driver's license suspension on count seven. The court sentenced defendant on count eleven to a concurrent term of five years in prison and an additional six-month driver's license suspension. The court imposed various fees and penalties totaling $3380 and stayed the sentence pending appeal.
See State v. Brimage, 153 N.J. 1 (1998) (where the Court found that plea-bargaining guidelines for drug offenses then in existence were inconsistent throughout the state and directed the Attorney General to develop uniform statewide guidelines, now known as the Brimage Guidelines).
I
Manalapan Police Detective Michael A. Ratta prepared an affidavit seeking a no-knock search warrant for defendant's parents' home, where defendant lived, a shed on the property, defendant's 1996 Ford Mustang and his father's Toyota Sequoia. Ratta attested to his knowledge of the following facts. In August 2007, a Manalapan Township Police Officer told Ratta that an anonymous informant reported that defendant was selling marijuana and prescription pills from the garage of his house, located in a residential neighborhood the police described as not "hostile," where he lived with his elderly parents, a short distance from the Manalapan Police Department. Defendant had previously been arrested for possession of less than fifty grams of marijuana, less than five grams of hashish, and drug paraphernalia. Additionally, the police had previously investigated him in 2004 for criminal mischief, as well as allegedly stealing $2500 in cash from a friend, who also reported seeing large quantities of pills and marijuana while shooting a BB gun in defendant's garage.
Defendant's father had four firearms registered in his name: three handguns and a Daisy BB gun. Defendant's father also had two additional pending handgun applications. Defendant often accompanied his father to the police station to inquire about the status of these applications. Because defendant lived with his father and evidenced an interest in his father's gun applications, Ratta believed that defendant likely had access to the firearms.
The police began video surveillance of defendant and his home, which over the course of five days revealed a pattern strongly indicative of drug trafficking. Defendant frequently opened the garage door to allow entry to visitors, who would leave after a short period of time, clutching objects handed to them by defendant. Defendant would then close the garage door. On other occasions, groups of people would sit in the garage smoking what Ratta suspected to be marijuana. Ratta's search warrant affidavit requested a no-knock search warrant based on the probable presence and accessibility of firearms to defendant.
Lieutenant Michael Fountain, who had attended "a [SWAT (special weapons and tactics)] command and decision-making school," testified at the suppression hearing to the following facts. The police department first obtained flash-bang devices in February 2006. This was the only time through July 2008 that one was detonated during any operation, other than for training purposes. Based on indications of drug trafficking activity, the Manalapan Police Department decided to conduct the search with a special unit, the six-member Emergency Response Team (ERT), which the department put together to deal with "higher risk operations." Originally, the ERT was put together for "active shooter acts and violent response." Fountain is commander of the Manalapan ERT, and all ERT members have SWAT training. They were also trained in the use of flash-bang devices, and each member was issued a device to be used in the appropriate circumstances.
The police department completed a "raid action plan" involving the use of a flash-bang device. The plan involved entering defendant's house through the garage while the garage door was open and defendant was engaged in a CDS transaction. The plan identified the "primary target" as defendant and "secondary targets" as defendant's father and mother as well as "unknown buyers." The police walked through a similar home in order to familiarize themselves with the general layout they were likely to face once inside defendant's home.
The police action plan involved twelve officers who were divided into three teams. Team one consisted of Lieutenant Fountain, Sergeant Paul Seetoo and three other officers. Seetoo was to drive to the suspect's home and park on the adjacent neighbor's driveway, while Fountain was to throw the flash-bang device onto the Rockford's neighbor's driveway from the window of the police car. Then, the three other officers on the team were to proceed immediately into the garage to detain anyone in the driveway and garage, then clear and secure the rest of the first floor.
Team two consisted of four officers, three of whom were to knock and announce themselves at the front door, then proceed to the second floor, and secure the foyer and the second floor. The third, or patrol, team, made up of three officers, was to stay at the back of the residence and stop anyone attempting to flee.
Based on the Manalapan Police Department's application, on August 23, 2007, the judge approved a search warrant for defendant's residence, which was described as having a shed on the property, but declined to include the no-knock provision. No arrest warrant was issued. After the issuance of the knock-and-announce warrant, the police filled out a "threat assessment matrix" as they do after the issuance of every search warrant, assigning points for various relevant factors. The threat matrix added up to nine, consisting of one point for a drug warrant, three points for the suspect's history of drug involvement, one point because only minimal force would be required to effect an entry through the open garage door, and four points because the suspect had easy access to firearms. On its face, within a box designated as "Decision Ma[tr]ix," the pre-printed standardized matrix indicates:
The warrant itself does not authorize a search of the vehicles nor mention them in any way.
01-14 Points Service/execution may be handled by unit supervisor.
15-24 Points Consultation with the Monmouth County Emergency Response Team (MOCERT) Coordinator is required. MOCERT service of the warrant is optional.
25 plus Points Monmouth County Emergency Response Team (MOCERT) is required for service/execution of the warrant.
Although the police matrix indicated only nine points, based on that matrix and "other factors," Fountain decided to execute the search warrant according to the plan they had already drafted involving the use of the Manalapan ERT and a flash-bang device. Fountain responded to questions concerning why the police continued to use a strategy involving the planned use of a flash-bang after the no-knock provision of the warrant was disapproved, stating:
[O]nce I knew I had a knock-and-announce, I knew we really had no element of surprise. They knew that we were going to be going to the door. At that point, it became maybe even more important for me to utilize the flash-bang, to divert the attention of the suspects.Fountain acknowledged that the police could have executed the warrant when defendant was gone, as they had seen him drive away during their surveillance of the residence. They chose to execute the warrant when defendant was in the process of a drug transaction to catch him during a sale.
On August 24, 2007, a sunny afternoon, the police carried out their plan. Ratta, the officer conducting surveillance, notified the team when the garage door was opened. The rest of the plan was then followed with one inadvertent deviation. Because Sergeant Seetoo overshot the neighbor's driveway, he parked directly in the driveway of the Rockford residence. Despite this error, Fountain proceeded to detonate the flash-bang in defendant's driveway rather than the neighbor's driveway.
The officers then approached two men standing at the open garage entrance, loudly announcing their presence by shouting: "Police, search warrant. Police, we have a search warrant. Police, we have a search warrant." Although the purpose of the flash-bang was to "draw them out," in fact, the two men went back into the shadow of the garage. As the two men retreated into the dark garage, which was difficult for the officers to see into because of the bright sunshine outside and the effects of the flash-bang, the officers continued loudly announcing their presence and ordering: "Don't move. Police, don't move. Police, don't move." Fountain immediately recognized Rockford from his description as a tall white male weighing about 300 pounds. Fountain had also seen defendant before.
All of the officers were dressed in dark blue police uniforms over which they wore black vests with "Police" written across the chest in white, three-inch letters. Some of the officers wore helmets as well. Fountain aimed a service weapon at the garage, while Seetoo illuminated the inside of the garage with a light mounted on his rifle. Rockford and the other man then complied with the orders of the police, placing their hands in the air. However, when Fountain ordered the two men to come out of the garage, only the other suspect complied, while Rockford did not. Fountain then entered and grabbed one of Rockford's arms to drag him outside, and Rockford then complied with police orders. Fountain then joined Seetoo and two other officers at the garage door leading into the house. Fountain knocked for three to four seconds. After hearing the other team of officers at the front door, he opened the unlocked door leading from the garage into the home.
After Fountain and Seetoo entered, they clearly heard team two, whose leader was carrying a machine gun, knocking on the front door while loudly announcing their presence. Six or seven seconds later, team two began an unsuccessful attempt to breach the front door with a battering ram, during which team two heard a woman screaming.
Seetoo went upstairs to check for other occupants, pointing his rifle and wearing his helmet and black police vest. He encountered defendant's approximately sixty-nine-year-old mother, an "elderly female . . . in a state of disbelief" who was screaming and crying while team two tried to batter down her front door. Fountain directed team two to stop battering the front door and to go around the outside of the house and enter through the interior garage door.
In February 2010, defendant's father testified that he was seventy-seven and that defendant's mother was seventy-two years old.
Defendant's approximately seventy-four-year-old father discovered the police at his home when he returned from a walk shortly thereafter. The police discovered the CDS and other evidence in the garage, defendant's bedroom and the two vehicles.
II
Twenty-two-year FBI veteran Christopher K. Curran, a member of its Hostage Rescue Team, testified as an expert in SWAT operations, tactics, planning and deployment, and use of diversionary devices, including flash-bang devices. In addition to extensive military experience involving explosives, Curran has specialized experience in "close quarter battle" situations such as hostage rescues, in which police engage in armed confrontation with criminal suspects following planned movements to seize control of the situation. He has experience in training others in the proper use of the flash-bang and chooses which flash-bangs the FBI will purchase and deploy, a process that requires extensive research into available flash-bang models, their properties and suitability for use.
Curran testified to the following information. A "flash-bang," as its name suggests, is a device that, when deployed, emits a bright flash and a loud bang, distracting, disorienting, and momentarily blinding and deafening those exposed to its effects. It is often used by police agencies in executing warrants, in order to defuse resistance and regain the element of surprise before potentially dangerous suspects recover their wits. It is designed to "distract, disorient and surprise."
According to the "product specifications" of the flash-bang device used here, it emits approximately six to eight million candela and one-hundred seventy-five decibels at five feet for a period of nine milliseconds. It "produces a loud report, brilliant flash and heat of short duration."
A flash-bang is not a firearm nor does it emit projectiles or fragments when deployed properly. It is not intended to cause any permanent harm and is generally safe for humans and animals at a distance of five or six feet. While a flash-bang is not a weapon, it can be dangerous if it is used improperly. Indeed, the specifications for the device used in this case state in bold print: "Improper use can result in death or serious bodily injury."
Based on his review of the records relating to the use of the flash-bang in this case, Curran concluded that the Manalapan Police's written plan for executing the search warrant was "safe and proper" and "tactically sound." Curran determined that deployed as it was in this case, the flash-bang did not "pose any danger to a person" or "danger to property" and "was not used as a weapon." Curran also did not consider it significant that the flash-bang was not deployed precisely as described in the written plan, as it was detonated in the Rockfords' driveway and not the neighbor's driveway.
Curran opined that the use of the flash-bang "was not only prudent but necessary" under the circumstances. In his opinion, under these circumstances the type of search warrant obtained made no difference with regard to the use of the flash-bang device.
Defendant raises the following issues on appeal:
POINT I:
BECAUSE THE UTILIZATION OF THE ERT TEAM AND FLASH BANG DEVICE CONSTITUTED AN UNREASONABLE EXERCISE OF THE POLICE WARRANT POWER, THE LAW DIVISION'S DENIAL OF THE DEFENDANT'S MOTION TO SUPPRESS SHOULD BE VACATED AND REVERSED.
A. The Use of the Flash Bang Device Constituted An Abuse of Discretion and Represents An Unreasonable Use of the Police Authority.
B. The Defendant Urges the Appellate Division To Adopt the Cogent and Logical Reasoning Employed By the Appellate Division in State versus Robinson (399 N.J. Super. 400), Which Was Reversed On Technical Grounds Having Nothing To Do With the Flash Bang Issue In That Case.
C. Flash Bang Devices Are Inherently Dangerous, and Should Be Utilized With Due Caution By Law Enforcement
Personnel, Especially In SWAT Type Militaristic Executions of Search Warrants.POINT II:
D. The Instant Case Represents An Example of the Inappropriate Militarization of Local Police Departments In the Execution of Search Warrants.
E. The Trial Court's Closing Comments Indicate An Attitude Critical of the State's Execution of the Search Warrant In This Case.
F. The Law Division's Dicta Opining That Suppression Does Not Represent An Appropriate Remedy In This Case Represents Clear Error.
IN ONLY WAITING THREE TO FOUR SECONDS BEFORE ENTERING THE RESIDENCE DOOR FROM THE GARAGE, THE POLICE VIOLATED THE CONSTITUTIONAL "KNOCK AND ANNOUNCE" RESTRICTIONS PLACED UPON THE SEARCH WARRANT.
III
The trial court found that the police did not violate the knock-and-announce provision and denied the motion to suppress the evidence. In its decision, the trial court summarized Curran's opinion as follows: "He concluded that the plan developed by the officers . . . . in his opinion did not violate the 'knock and announce' provision[] of the warrant." The court further stated that it "relie[d] heavily on the expert opinion of Special Agent Christopher Curran of the F.B.I. . . . [that] [a]ll were sensitive to Constitution considerations, re: the type of force used . . . ." Although not objected to by defense counsel or raised as an issue on appeal, opinion testimony from Curran that the police use of the flash-bang device was consistent with the knock-and-announce warrant was impermissible. The trial court should not rely on legal opinions of a federal law enforcement officer. Moreover, legal conclusions "are not appropriate objects of expert testimony." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 702 (2011); see also State v. Moore, 273 N.J. Super. 118, 127-28 (App. Div.) (concluding that expert testimony of an experienced appellate lawyer was inadmissible on a motion for post-conviction relief alleging ineffective assistance of appellate counsel), certif. denied, 137 N.J. 311 (1994). The court appropriately accorded weight to Curran's expertise in the safe and proper use of the flash-bang device. Because we review the application of the law to the facts de novo, we disregard Curran's view that a flash-bang device did not violate the knock-and-announce warrant in these circumstances.
IV
"The knock-and-announce rule renders unlawful a forcible entry to arrest or search 'where the officer failed first to state his authority and purpose for demanding admission.'" State v. Robinson, 200 N.J. 1, 13-14 (2009) (quoting Miller v. United States, 357 U.S. 301, 308, 78 S. Ct. 1190, 1195, 2 L. Ed. 2d 1332, 1337 (1958)). Although "[t]he rule is firmly embedded in our common law heritage[,]" id. at 14, "the Supreme Court has not yet directly addressed the substantive issue regarding the use of flash-bang devices with a knock-and-announce warrant." Kevin G. Byrnes, N.J. Arrest, Search & Seizure, § 9:2-2 (Gann 2011-12).
In State v. Robinson, 399 N.J. Super. 400 (App. Div. 2008), rev'd on other grounds, 200 N.J. 1 (2009), we considered the legality of the use of a flash-bang device with a knock-and-announce warrant. In Robinson, we reversed the denial of defendant's motion to suppress evidence concluding that the police did not wait long enough after announcing before forcibly breaking down the defendant's door, and the flash-bang device detonated upon entry in connection with a knock-and-announce warrant "absent unforeseen exigent circumstances supporting the use of force, . . . nullifie[d] the legal efficacy of such warrant[.]" 399 N.J. Super. at 413, 417. The Supreme Court reversed our decision holding that the twenty- to thirty-second delay between announcement and forced entry was not unreasonable, and the objection to the use of a flash-bang device was raised for the first time on appeal, and should therefore not be considered. Robinson, supra, 200 N.J. at 18-19.
Taking into account that the device, as described by the State's experts, essentially deprives its target of the sense of vision and hearing and can cause serious bodily injury or death if misused, it may well qualify as a "use of force," even when used as directed, and its use must be reasonable. See Boyd v. Benton Cnty., 374 F.3d 773, 779 (9th Cir. 2004).
We have held that although the police need not obtain prior judicial approval for the use of a flash-bang device, the use of such a device must be "objectively reasonable . . . in the situation presented." State v. Fanelle, 385 N.J. Super. 518, 533-34 (App. Div. 2006). The planned use of a flash-bang device such as the one used here might well be appropriate in this situation if the judge had approved a no-knock warrant. The existence of four firearms in the home, with a report of discharging a BB gun in the garage in the past, coupled with defendant's prior criminal history, although minor in nature, and evidence of frequent drug distribution from the garage would have provided a reasonable basis for the use of a distraction device prior to the police entering the home unannounced.
Our concern arises from the planned use of the flash-bang device before knocking and announcing, after the judge denied the no-knock warrant and without the occurrence of any unexpected danger or resistance on the part of defendant. The State frankly conceded at oral argument that it believed the judge erred in requiring the police to knock on the door and announce their presence before entering the residence to execute the search warrant. The State chose not to seek an emergent appeal of the judge's denial of the no-knock provision of the warrant. R. 2:9-8; R. 2:8-1. The police are not free to violate a provision in a warrant they do not agree with. The use of a flash-bang distraction device right outside of a home before knocking on the door makes it extremely difficult for people inside the home to respond promptly and calmly to a knock on the door. The device is intended to startle and alarm people, emitting a deafening sound and blinding light. Defendant's mother was found on the second floor of the home, distraught and frightened. She testified that when the flash-bang went off she thought the furnace had exploded and did not hear the police knocking on or announcing their presence at the front door. She may well have not heard the police knocking due to the deafening sound of the flash-bang. The next thing she heard after the explosion was the police using a battering ram in an attempt to break down her front door.
In finding that the police did knock and announce at the front door, the trial court did not reject defendant's mother's testimony that she did not hear them, explaining that she was "confused" due to being "startled by the loud noise she heard."
The police had the garage under surveillance for several days during which defendant at times left the home. They chose not to execute the warrant when defendant was absent, but rather when defendant opened the garage door to facilitate a drug transaction. Although this decision to execute the warrant during a sale had some tactical advantages, it also exposed the officers to dangers that would not otherwise be present. Had they chosen to wait until defendant left the premises, the use of the flash-bang would have been completely unnecessary. It appears to us that the police chose this tactic in part to enable them to use the flash-bang device for the first time, as they had been trained in its use, but never had an opportunity to use the device in an actual operation.
Pursuant to their detailed plan, the police waited until the garage door opened to set off the flash-bang and raid the home. One team entered the garage while another knocked on the front door. This planned execution of the warrant violated its knock-and-announce provision. By entering the garage, the police entered defendant's home. See State v. Nikola, 359 N.J. Super. 573, 585 (App. Div.) (indicating that an attached garage is part of the home, not its curtilage), certif. denied, 178 N.J. 30 (2003). The police entry into the garage after detonating the flash-bang nullified the knock-and-announce warrant, converting the search of the home into a warrantless one, which was not justified by exigent circumstances. The State does not argue any other exception to the warrant requirement justified the search. Police may not stake out a home and wait for a door to open to justify an entry without knocking. If the police were permitted to wait for a door to open and then enter unannounced to bypass the knock-and-announce requirement, that requirement would lose all efficacy. Neither may the police detonate a flash-bang before announcing, absent an unanticipated danger presenting itself. See Robinson, supra, 399 N.J. Super. at 417 (explaining the need for an unanticipated dangerous condition where the police detonated the flash-bang after announcing). Knocking and announcing became a sham in this matter once the flash-bang was detonated and the garage was entered.
The police entered through the garage into the rest of the home, after defendant and his customer were secured, with a machine gun, rifles and handguns, dressed in helmets and police vests. The police knew that the only other occupants of the home were defendant's elderly parents. Under the totality of the circumstances, the execution of this warrant was objectively unreasonable and therefore fatally defective. Fanelle, supra, 385 N.J. Super. at 533; see Boyd, supra, 374 F.3d at 779 (explaining that "it cannot be a reasonable use of force under the Fourth Amendment to throw a flash bang device 'blind' into a room occupied by innocent bystanders absent a strong governmental interest, careful consideration of alternatives and appropriate measures to reduce the risk of injury"). See also State v. Lashley, 353 N.J. Super. 405, 412 (App. Div. 2002) (explaining that "the warrantless entry of the dwelling was not only unlawful in the absence of both probable cause and exigent circumstances, but the method of entry was unjustified in the record, and therefore the evidence must be suppressed").
V
The State argues that even if the warrant was improperly executed, the exclusionary rule should not be applied because the police had a warrant. We disagree. The trial court found no violation of the knock-and-announce provision, but opined that even had a violation occurred, it should not result in the exclusion of evidence based on Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). The issue in Hudson concerned what constituted a reasonable "wait time" after knocking and before forcibly entering the home. Here, the violation of the knock-and-announce provision was pre-planned and more egregious than waiting too short a period between announcing and entering. Moreover, we have stated that "[a]lthough conclusive as to the application of the Fourth Amendment, even if by the barest of margins, Hudson by no means governs the application of our state constitution to a knock and announce violation." State v. Rodriguez, 399 N.J. Super. 192, 203 (App. Div. 2008). Additionally, New Jersey courts frequently find greater protections in our constitutional provisions than the federal courts find in the United States Constitution. See id. at 203-04; see also State v. Cooke, 163 N.J. 657, 666-67 (2000); State v. Novembrino, 105 N.J. 95, 145 (1987).
The police officers' pre-planned unannounced entry into the open garage after using a flash-bang device without waiting to knock and announce themselves at the front door constitutes a flagrant violation of the requirements of the warrant and requires the exclusion of all evidence found in the home. Any evidence found in the vehicles must also be suppressed because the warrant did not authorize such a search. We do not consider the issue raised by defendant in Point II of his brief regarding the length of time the police waited after knocking before entering the living quarters of the home from the attached garage because we conclude that the police unreasonably entered the home when they entered the garage after detonating a flash-bang device.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
___________________________
CLERK OF THE APPELLATE DIVISION
BAXTER, J.A.D., dissenting.
Faced with the daunting prospect of knocking and announcing at a home where police knew the occupants possessed at least three firearms, law enforcement deployed a flash-bang device to distract the occupants and thereby protect themselves from the risk of gunfire. Against that backdrop, my colleagues have concluded that the use of such a device rendered the ensuing search and seizure unconstitutional. They have also determined that the execution of the knock-and-announce warrant was defective, both because the police did not comply with the caselaw governing such warrants and because, in the view of the majority, the planned use of the device was a deliberate attempt to circumvent the knock-and-announce requirement.
Moreover, without ever concluding that the use of the flash-bang device here constituted a use of force, and without reaching the question of whether the police waited long enough before entering the home, the majority has determined that the search was accomplished in an unreasonable manner. My colleagues have concluded that, standing alone, the use of the flash-bang device rendered the search unlawful, regardless of whether the use of the device was justified by officer safety and regardless of whether the police complied with the time requirement applicable to a knock-and-announce warrant. I dissent, as I cannot agree with those conclusions or with the underlying reasoning.
First, I disagree with my colleagues' unwillingness to address one of the central questions presented by this appeal, namely, whether the use of the flash-bang device here constituted a use of force. The majority is willing to state only that because the device "essentially deprives its target of the sense of vision and hearing and can cause serious bodily injury or death if misused, it may well qualify as a 'use of force[.]'" (emphasis added).
Lieutenant Fountain described the device as a cartridge that "creates a loud sound and an intense light." It ejects no shrapnel, shards or other projectile that could cause injury; and unlike a firearm, knife or other weapon the purpose of which is to hurt, maim or kill, the purpose of a flash-bang is merely to temporarily distract the suspect. The flash-bang device was detonated here on a concrete driveway, where it posed no danger to any person or to property. Only when the device is deployed near a flammable material, or deployed inside a home or building, does it pose a risk of fire or smoke inhalation to bystanders. No such improper use occurred here. The device was deliberately deployed thirty to thirty-five feet from the threshold of the garage where defendant and the buyer were positioned, which was far enough away to avoid any chance of injury.
The circumstances here are not consistent with the commonly understood definition of "force," which "means the exercise of strength or power." State v. Brannon, 178 N.J. 500, 510 (2004). While there might be circumstances when a flash-bang device could constitute the use of force, if it were deployed inside a home near where the occupants are positioned, for example, the facts here do not warrant the conclusion that a use of force occurred. In my view, in light of the deployment of the device on an asphalt driveway thirty-five feet away from defendant and his buyer, where it posed no risk of harm to persons or property, the device served merely as a distraction, and was not a use of force. My colleagues' unwillingness to address this issue as part of their overall analysis of the reasonableness of the use of the device strikes me as an analytical flaw that weakens the majority's ultimate conclusion that the use of the device, and the search itself, were unreasonable.
Indeed, three federal circuits, in four opinions, have held that the use of such devices in close proximity to suspects who might be injured thereby is an unreasonable use of force. See Estate of Escobedo v. Bender, 600 F.3d 770, 773 (7th Cir. 2010) (deciding that the deployment of the device against a suicidal individual was an excessive use of force when police had already used tear gas and set fire to the apartment); Boyd v. Benton County, 374 F.3d 773, 777-79 (9th Cir. 2004) (holding, in the context of an action brought under 42 U.S.C. § 1983, that the use of the device was an excessive use of force where police deployed it inside a home without either looking or sounding a warning when there were innocent bystanders in the room as well as the suspected robbers); Estate of Smith v. Marasco 318 F.3d 497, 515-18 (3rd Cir. 2003) (determining that the use of the device was not protected by qualified immunity where police used the device inside the home and its occupant was non-threatening, mentally unstable and suicidal); and United States v. Jones, 214 F.3d 836, 837-38 (7th Cir. 2000) (finding the deployment of the device unreasonable when used inside a drug dealer's home with his girlfriend and her child present).
Second, I disagree with my colleagues' determination that the "planned use" of the flash-bang device amounted to "police . . . violat[ing] a provision in a warrant they do not agree with." The majority has concluded that the police used the flash-bang device in a deliberate attempt to circumvent the knock-and-announce requirement of the search warrant. Stated differently, the majority has concluded that the police acted in bad faith. The record tells us otherwise. Lieutenant Fountain, whom the judge found credible, and who testified in a "clear, concise" and "consistent" manner, stated without contradiction that the Manalapan Township police began planning how they would execute the warrant days before the search warrant was even approved. Fountain met with the entry team two days before the warrant was issued, conducted a "walk-through" of a similar house to determine the layout, and "planned for both" a no-knock and a knock and announce entrance. He explained:
We always prepare for different types of warrant situations, just like in the training. As we run through these mock warrants, if you will, we'll do some as a no-knock. We'll do some as a knock-and-announce.
Even more important is Fountain's uncontradicted testimony on cross-examination that the use of a flash-bang diversionary device was under consideration in the "original plans" that were
formulated days before the warrant was issued as a knock-and-announce on August 23, 2007. Moreover, the use of a flash-bang was considered and discussed at a planning meeting Fountain conducted with the entry team on August 22 -- before the search warrant was issued -- to discuss various entry options. The possible use of a distraction device remained in some of the plans until August 24, when the "final draft" was prepared and the decision to use the device was made. Fountain testified on
cross-examination:
Q: Other than the change in personnel, . . . do you recall any other particulars of the changes that were made in the original proposed plans before this final draft?
A: Yeah, we made several changes to the plan.
Q: What?
A: We had -- well, up until the date of the 23rd when we knew what type of warrant it was, we had put plans into effect for knock-warrant, no-knock warrant. As I said before, entering together at the front of
the house, entering together from the garage of the home. We made several different plans.
Q: But the fact of the matter was that the use of a flash-bang device was in the original plans and remained there until the final draft; true?
A: The use of the flash-bang was implemented into some of the plans, not every single one of them.
[(Emphasis added).]
While it is true that the final decision to use a diversionary device was not made until after the search warrant had been issued as a knock-and-announce, the fact that the advance planning for the execution of the warrant included the possible use of a flash-bang calls into question the majority's conclusion that the decision to use a diversionary device was the result of bad faith by the police.
I also part company with another portion of the majority's determination that law enforcement acted in bad faith. In particular, my colleagues have stated that the police chose to use the flash-bang device because they were curious about the impact of the device on a suspect. The majority states:
It appears to us that the police chose this tactic in part to enable them to use the flash-bang device for the first time, as they had been trained in its use, but never had an opportunity to use the device in actual operation.This broadside attack on police motivation finds absolutely no support in the record. While the majority is correct that the Manalapan Police Department had not had the occasion to use the device until the day in question, there is no record support for the majority's speculation that the police used the flash-bang on the day in question because they were eager to, in effect, try out their new gadget. The majority's conclusion is contrary to the detailed testimony provided by Lieutenant Fountain, whom the trial judge found credible. Lieutenant Fountain testified that the reason he chose to utilize the device was to distract defendant and reduce his opportunity to "get to a gun:"
[M]y diversion device [was] used to create a distraction to [defendant]. My hope and attempt [was] for him to come and be momentarily bewildered at -- what's going on in my driveway, this is unusual, . . . check, okay, it's the police. [And so] [t]here's no time for him to get a gun.
. . . .
It would cause a distraction. It would cause a lapse in time for us, for the Emergency Response Team to get to defendant and feel comfortable that he's not able to produce a weapon.
The Emergency Response Team is a special unit of the Manalapan Township Police Department utilized in a variety of high-risk situations, including the execution of search warrants that are perceived to present an increased danger to officer safety.
The judge accepted Lieutenant Fountain's testimony and found as a fact that the device was utilized "as a diversion" and "as a distraction for the police to approach the home safely, without giving the defendant time to procure any of the weapons . . . that . . . were located in the house."
Where, as here, a trial judge has observed and heard the witnesses, evaluated their credibility, and has then made detailed findings of fact that are amply supported by the record, appellate judges are not free to ignore those findings and substitute their own. State v. Elders, 192 N.J. 224, 243 (2007). As the Court pointedly observed in Elders, only where a trial court's findings "are so clearly mistaken that the interests of justice demand intervention and correction" is an appellate court free to discard the trial judge's factual findings. Ibid. (internal quotation marks and citation omitted). Doing so here, where the trial judge's meticulous findings deserve our respect, was unwarranted. I therefore decline to subscribe to the majority's conclusion that the use of the device was a deliberate strategy to circumvent the knock-and-announce requirement. I also cannot join in the majority's conjecture that the use of the device here sprung from law enforcement's eagerness to see their new equipment in actual use, especially where the evidence of legitimate reasons was so abundant.
Third, the majority understates the serious threat to officer safety posed by this particular search warrant execution. The majority correctly notes that there were at least three handguns in the house that were registered to defendant's father, that defendant had fired a weapon, namely, a BB gun, in the garage, and that defendant had expressed a keen interest in firearms when he accompanied his father to the police station. Yet the majority appears to ignore the real and legitimate threat to officer safety that such firearms posed. In any search warrant execution, there is a risk that the occupants possess a firearm, and if so, there is a correlative risk that the occupants will fire at police as soon as police gain entry. State v. Alvarez, 238 N.J. Super. 560, 570 (App. Div. 1990). Here, in contrast, there was not merely a risk that the occupants possessed firearms. It was an absolute certainty.
Moreover, Lieutenant Fountain testified to his, and Detective Ratta's, concern about the risks those weapons posed in the context of the high "level of narcotic[s] activity that [Ratta] believed was occurring in the home," especially because police had no way of knowing whether "other weapons", or the BB gun, were being stored in the garage within arm's reach of defendant. A factor that exacerbated these already-heightened concerns was the physical layout of the house, a "bi-level" home "where you come in the front door [and] [i]mmediately you have to make a decision to either go downstairs or upstairs" without being able to visually scan either level of the home. This factor "concern[ed]" Fountain from a "tactical" and safety point of view. Suffice it to say, the circumstances facing the entry teams on the afternoon of August 24, 2007 posed grave risks to their safety.
Ever since the United States Supreme Court held in Terry v. Ohio in 1968 that "it would . . . be clearly unreasonable to deny . . . [police] officer[s] the power to take necessary measures . . . to neutralize the threat of physical harm" from armed suspects, courts have respected the right of officers to protect their safety, or their very lives. As we observed in Alvarez:
Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 1881, 20 L. Ed. 2d 889, 908 (1968).
[T]he [premises were] not conducive to further surveillance without the possibility of being detected. We know of no constitutional doctrine that would compel the officers to risk the possibility of being detected and the correlative danger to their safety in the event their investigation were to go awry. We acknowledge that there was no evidence suggesting that defendants might have
reacted in a violent way had they discovered the presence of the detectives in the hallway. However, we would be short on realism were we to fail to note that police work is dangerous work.
[Alvarez, supra, 238 N.J. Super. at 570 (emphasis added).]
For that reason, I part company with the majority's holding that "the police entry into the garage after detonating the flash-bang nullified the knock-and-announce warrant, converting the search of the home into a warrantless one, which was not justified by exigent circumstances or any other exception to the search warrant requirement." Such a conclusion ignores the day-to-day realities of police work and the unmistakable danger such work presents. I see no basis for depriving police of the opportunity to protect their lives and safety. To conclude, as the majority does, without any precedential support, that the use of a flash-bang device nullifies a knock-and-announce warrant and converts the search into a "warrantless one" strikes me as insensitive to these realities and to the right of police to take measures for their own protection. Moreover, because the use of a flash-bang device here was not a "use of force," its deployment is of no constitutional significance, and therefore cannot convert an otherwise valid warrant execution into one that is constitutionally offensive.
Rather than squarely address the real danger to officer safety that was presented here, my colleagues have chosen instead to suggest other methods of executing the warrant that they believe would have made the use of the flash-bang device "completely unnecessary." The majority posits that if the police had waited to execute the warrant until a time when defendant was absent from the home, they would have faced no danger and would not have needed to deploy the device at all. This conclusion ignores the risk that defendant's father, who was the owner of the three guns, and had applications pending for the purchase of two more, might use the guns to fire upon the officers as they entered the home. Lieutenant Fountain testified:
I can tell you, from my perspective, that anybody in the house where there's guns could be a threat, and anybody in the house could destroy the evidence.Lieutenant Fountain also observed that he and Detective Ratta wanted to execute the warrant when defendant was home "to ensure that there was [sic] narcotics on location."
[(Emphasis added).]
In its attempt to devise a better time for the police to have executed the warrant, the majority has ignored the very factors of which the police, based upon their experience and training, are keenly aware. Thus, I cannot agree with the majority's conclusion that had the police picked a different time to execute the warrant, the use of the flash-bang device would have become unnecessary. The guns were in the house whether defendant was home or not. The circumstances facing the police that day were infused with a clear threat to officer safety, a threat the majority has not adequately addressed.
I turn now to the question of whether the police violated the warrant's knock-and-announce requirements. Because the majority concludes that the use of the flash-bang device constituted a per se violation of the warrant's knock and announce requirement, the majority has not decided whether the police waited a sufficient time before entering the home. Instead, the majority broadly concludes that the execution of the search warrant "was objectively unreasonable and therefore fatally defective." I do not agree.
The record contains considerable detail concerning the measures police took to announce their presence. A careful review of the record demonstrates that before entering the main living area of the house through the door in the garage, the police had been announcing their presence both at the garage and at the front door for a period of between twenty to thirty seconds, the very period of time that the Court in Robinson, supra, 200 N.J. at 18, deemed constitutionally sufficient. I also part company with the majority's premise that the only legitimate means of entrance into the house was through the front door, and that nothing occurring in the garage or the driveway should be considered in evaluating the validity of the execution of the knock-and-announce requirement of the warrant.
I quote from the record at some length to support my conclusion that under the totality of the circumstances the execution of the warrant complied with the Court's insistence in Robinson that police must "first . . . state [their] authority and purpose for demanding admission" before forcibly entering the home. Supra, 200 N.J. at 13-14 (internal quotation marks and citation omitted). Lieutenant Fountain testified as follows:
Q: When you say [Sergeant Seetoo] pulled in[to the driveway], how did he pull in?After Lieutenant Fountain demonstrated for the judge the volume and tone he used on the day in question, the judge stated:
A: . . . [He] pulled in on an angle into the driveway.
. . . .
Q: Now, how far away [were] you from the garage?
A: I would say 30, 35 feet from the garage.
Q: And that's while you're seated in the passenger's seat of the car Sergeant Seetoo is driving?
A: Yes.
Q: At this point, what observations do you make?
A: . . . I did see two individuals up by the garage.
Q: Okay. What do you do?
A: I detonate the device. . . . I hold the body of the device, . . . remove the pin, and drop the device out the window. . . . A small toss.
. . . .
Q: So, at this point, you get out of the vehicle. What do you see?
A: Myself and Sergeant Seetoo meet at the front of the [police vehicle], with Sergeant Dobbin, and we begin to make our way towards the garage. . . . We begin to move forward to the garage door, [saying]: "Police, search warrant. Police, we have a search warrant. Police, we have a search warrant."
As we get closer to the garage, the two individuals . . . retreated back into the garage. . . .
So, at that point, when the subjects retreated into the garage we told them -- and I again said: "Police, search warrant. Police, search warrant. Don't move. Police, don't move. Police, don't move."
. . . .
Q: How are you [officers] in relation to each other?
A: I'm kind of along Sergeant Seetoo's right side, somewhat behind him, and Sergeant Dobbin is behind me.
Q: Are all three of you dressed in the class B2 uniforms?
A: Yes.
Q: And do you have anything in your hand?
A: I definitely have a gun in my hand.
Q: And where is that pointed?
A: Towards the area of my concern, the garage.
Q: And you said you got out of the car, and said something?
A: Yes.
Q: What did you say?
A: "Police, we have a search warrant."
Q: And I'd like you to demonstrate for the court right now how you said it.
THE COURT: For the record, since we're not on tape, he loudly explained those words in a voice much louder than the voice he's been testifying to.The testimony continued:
Q: And [did] you hear the other officers around you saying anything?At this point, as he had done before, the judge described the volume and tone that Lieutenant Fountain had demonstrated:
A: Yes.
Q: What are they saying?
A: Same thing.
Q: And is their tone similar to yours? A: Yes.
. . . .
Q: Now, at this point, are you continuing to yell, "Police, search warrant" as you approach the garage?
A: Yes.
Q: And what are the two individuals, [defendant] and the other person, doing in relation to you?
A: They kind of backed into the garage.
. . . .
Q: [H]ow long did it take you to get to the garage door?
A: From exiting the vehicle to the garage door?
Q: Yes.
A: Maybe three or four seconds.
. . . .
Q: And when you see them . . . what do you say?
A: "Police, don't move. Police, don't move. Put your hands in the air. We have a search warrant."
Q: And what do they do?
A: They complied. They put their hands in the air. . . . The individual who I don't know, I don't know his name, he started to walk towards me. I met him in the garage, passed him onto the officers behind me to
detain him, and then said the same thing to [defendant].
Q: And what does [defendant] do?
A: He complied by keeping his hands in the air, really didn't move, but at the same time, he didn't come to the sound of my voice. He was kind of reluctant to leave that area.
. . . .
Q: At this point, what do you do?
A: I continue into the garage and grab, grab one of [defendant's] arms and begin to pull him back towards the officers, and while he wasn't resisting, he also wasn't complying.
. . . .
Q: What do you do with [defendant] at that point?
A: Again, I passed him off to the officers behind me, and their role and responsibility was to hold onto [him], to secure him.
. . . .
Q: How long does it take you to get both of those individuals now out?
A: I would say about 15 seconds or so.
Q: They're out. What do you do?
A: When I know that the individuals are out of the garage and secured, I then re[-]form with the team that's going to make entry on the bottom floor, which is myself, Sergeant Dobbin, Sergeant Seetoo and Officer Cruz as well. And we get to the interior door that's in the garage that leads to the main
living area of the home and . . . we form up on the door and prepare to make entry into the home.
. . . .
Q: Now what do you do when you get to that door?
A: Well, I'm the first officer through the door. Before I go in, I knock on the door and announce that we're police, and we have a search warrant.
Q: You say you knock on the door. I'd like you to demonstrate what you do.
A: Just kind of, "Police, we have a search warrant. Open the door. Police, search warrant."
THE COURT: For the record, the officer knocked very loudly on the desktop in front of him and again raised his voice to the volume that it was raised earlier when he exited the vehicle, and he rapped twice, repeated the words, "Police, we have a search warrant" twice.The testimony continued:
Q: How long do you do that?After hearing the officers at the front door trying to breach the door, Fountain instructed them to stop and directed them to come through the garage as he had done, go up the steps and "clear" the upstairs.
A: Maybe three or four seconds.
Q: Do you hear anything inside?
. . . .
A: I could hear the other group of officers banging on the front door.
Q: Banging?
A: Banging, similar to what I was doing.
Q: Like the knocking thing you just demonstrated?
A: Uh-huh.
Q: And do you hear any words, any voices, anything like that?
A: From the officers?
Q: From anybody.
A: Yeah, I hear the officers saying the same thing, "Police, we have a search warrant, Police, search warrant, Police, open the door," and banging on the door.
. . . .
Q: Okay. What do you do?
A: I see if I can open the door, and the door is unlocked, and we make entry into the downstairs part of . . . the home.
Q: And then what happens?
A: Our assignment is to clear the bottom floor. . . . [I]n the process of doing that, I then hear the front door officers change from the knocking with the hand to them trying to get access into the door with use of a ram.
Q: Now, you heard them change. Is that after you quit at the first floor?
A: It was in the process of us clearing.
Q: How long were you in the house before you heard that change?
A: Three or four seconds.
Q: And now you say you hear a change. What do you hear?
A: Well, the loud knocking that I demonstrated turned into considerably louder banging on the door, and instead of, "Police, we have a search warrant," it was, "Police, stay away from the door, get away from the door."
Thus, as is evident from Lieutenant Fountain's detailed testimony, Fountain himself loudly announced "Police, we have a search warrant" a total of three times when he first stepped out of the vehicle, and twice more when defendant and the buyer began to retreat into the garage. The other officers who were with him, Seetoo and Dobbin, were saying "the same thing," in the same commanding and loud tone that Fountain was using. The record therefore demonstrates that the phrase "Police, we have a search warrant" was uttered extremely loudly by Fountain a minimum of five times while in the driveway and several more times by the other officers.
Turning to an evaluation of the elapsed time before police entered the home, the record reveals that it took Fountain and the other officers "15 seconds or so" to get defendant and the buyer out of the garage, all the while yelling "Police, we have a search warrant." Fountain also loudly uttered that phrase several times in the driveway (before ordering the two men to step out of the garage), which would have taken a minimum of another five seconds. Fountain banged on the interior door in the garage for "three or four" more seconds while again loudly announcing, "We have a search warrant" before he opened the door. Thus, for a total of twenty-three to twenty-four seconds police announced "we have a search warrant" before actually opening the door inside the garage and gaining entry to the home's living area.
While all of this was occurring, a second team was loudly banging on the front door announcing the same thing. In evaluating the adequacy of the announcement by police that they have a warrant, we must remember, as the Court cautioned in Robinson, supra, 200 N.J. at 14, "[t]he burden of making an express announcement is certainly slight" (quotation marks and citation omitted). A "reasonable time" must elapse between the announcement and the forced entry into the home whenever the announcement is "'greeted with silence.'" Id. at 16 (quoting State v. Johnson, 168 N.J. 608, 621 (2001)). Here, defendant certainly heard Lieutenant Fountain's announcements in the driveway, but assuming that his mother did not, the "reasonable time" requirement would be triggered.
In evaluating whether a "reasonable time" elapsed preceding forced entry by police, the Court has observed that the time "need not be extensive in length" and the "calculus of reasonableness" is fact-sensitive:
In the calculus of reasonableness, the time lapse preceding forced entry need not be extensive in length, depending on the circumstances of a given case. This standard is necessarily vague, and turns on the circumstances existing when the police execute the warrant. The facts relevant to that determination are circumscribed, as the facts known to the police are what count in judging reasonable waiting time. Hence, the crucial fact in examining law enforcement's actions is not time to reach the door but the particular exigency claimed. Particularly, in narcotics cases, reasonableness in delay is not a function of merely how long it would take the resident to reach the door, but how long it would take to dispose of the suspected drugs. . . .
There are common factors to be applied in determining the reasonableness of the delay between knocking and announcing and a forcible entry. They include, but need not be limited to: a suspect's violent criminal history, an informant's tip that weapons will be present; the risks to officers' lives and safety; the size and layout of defendant's property; whether persons other than defendant reside there; whether others involved in the crime are expected to be present; and the time of day.
[Id. at 16-17 (internal quotation marks, citations and alterations omitted) (emphasis added).]
Applying the Robinson factors, I find, unlike my colleagues, that the execution of the knock and announce warrant was in compliance with the governing caselaw. In light of the known presence of firearms in the house; the risk to the officers' lives and safety; the bi-level layout of the house; the presence of a CDS buyer in the garage who might have threatened the safety of the officers; and the mid-afternoon time of the day, during which occupants of the house would have been awake and able to hear the banging, I conclude the amount of time that elapsed -- from the moment Fountain first announced police presence in the driveway, and the other officers began banging on the front door -- to the time Fountain opened the interior garage door was reasonable.
In conclusion, I would hold that the use of a flash-bang device here did not constitute the use of force; the use of such device does not convert a search with a warrant into a warrantless search; and the execution of the knock-and-announce warrant satisfied all constitutional requirements.
Moreover, the decision to use the flash-bang device was fully justifiable and the manner of its use was reasonable. In particular, the threat to officer safety posed by the three firearms in the house justified the use of the device, and the device was used in a safe manner -- in the driveway thirty-five feet away from the suspects. It bears noting that unlike Fanelle, supra, 358 N.J. Super. at 524, where the device was detonated inside the home to facilitate entry, here, as the trial judge found, "the device was not used in conjunction with entering the home" but was used "as a diversion."
For all of these reasons, I believe the judge's denial of defendant's motion to suppress was correct and should have been affirmed.
The majority has ordered the suppression not only of the CDS found in the home, but also the CDS found in defendant's vehicle, because the "warrant did not authorize such a search." As the parties have not briefed that issue, and the trial judge did not address it, the better practice, and the one I would have chosen, is to remand for further proceedings on that issue. We should not address an issue not raised by the parties themselves. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Thus, I dissent from this portion of the majority opinion as well.
I hereby certify that the foregoing is a true copy of the original on file in my office.
___________________________
CLERK OF THE APPELLATE DIVISION