Opinion
DOCKET NO. A-3145-12T4
07-29-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN B. DUNLAP, a/k/a 4-PLY DUNLAP, a/k/a JOHN D. DUNLAP, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-05-1164. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant John B. Dunlap appeals the denial of his motions to suppress, to conduct a Franks hearing, and to vacate a protective order entered October 14, 2009. For the reasons that follow, we affirm.
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
I
On June 11, 2012, defendant pled guilty to one count of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), and to two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. On October 5, 2012, the trial court sentenced defendant to a three-year flat term for second-degree aggravated assault, and to a seven-year term, with a five-year period of parole ineligibility, for each count of second-degree certain persons not to have a weapon. All three sentences run concurrently.
The pertinent facts are as follows. On November 4, 2007, defendant was in a bar when he got into a verbal argument with another patron. At one point, defendant punched the patron in the head with a closed fist. Minutes later, he fell unconscious and was taken to a hospital, where he underwent emergency brain surgery due to the traumatic blow to his head and was put into a medically-induced coma. On November 8, 2007, the police obtained an arrest warrant for defendant on charges of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and terroristic threats, N.J.S.A. 2C:12-3(a).
On November 14, 2007, Sergeant Nicholas R. Erman of the Atlantic County Prosecutor's Office applied to the court for a search warrant. In his affidavit, Erman stated three patrons in the bar saw defendant punch the victim in the head. One witness noted that just before he hit the victim, defendant reached "in the small of his back indicating that he had a weapon or gun" and said "I'll be waiting for you outside." Another witness claimed that after he struck the victim, defendant "made a physical movement by reaching into his pants pocket area as if he had a weapon on his person." Another heard defendant yell to the victim, "I'll kill you, I'll beat your ass."
Others in the bar noticed that defendant wore a jacket on which the word "Pagan" was inscribed on the back. Erman stated that, according to records of the Atlantic County Prosecutor's Office, defendant was a member of the Pagan's Outlaw Motorcycle Club of South Jersey. Reports from the Camden County Prosecutor's Office and the Philadelphia Police Department indicated he was a member of the Pagan's Outlaw Motorcycle Gang. Erman mentioned he was familiar with the kind of jacket Pagans wear, and that the jacket the witnesses described defendant wearing in the bar was of a kind members of the Pagan's Outlaw Motorcycle Club wear in order to display their membership in and allegiance to the Pagans. The Philadelphia Police Department provided Erman a photograph of defendant in which he is wearing the subject jacket. Erman asserted the photograph was taken on November 4, 2007, the day of the assault.
Erman also claimed in his affidavit that defendant had been convicted of the following offenses: unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), in 1985; "carrying prohibited weapon by convicted felon, N.J.S.A. 2C:39-3(e)," in 1989; simple assault, N.J.S.A. 2C:12-1(a), in 1991; and manufacturing and distributing a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1), in 2000.
The State wanted to search defendant's house, truck, and the detached garage, travel trailer, and shed on his property. The State sought the clothing defendant wore during the assault, any clothing on which there was blood, and weapons "of such size as may have been concealed in the small of the suspect's pants pocket."
Erman further requested that the search warrant include a "no-knock" provision because defendant's criminal history and the "current violent circumstances at hand" indicated he had a "propensity to possess" deadly weapons. Therefore, Erman contended in his affidavit, defendant posed a severe threat to any officer who attempted to execute the search warrant. Erman also noted there was an ongoing feud between members of the Pagans and the Hell's Angels Outlaw Motorcycle Club, and that members of both groups used police and military tactics, including counter-surveillance techniques, to protect their homes from rival gangs.
A no-knock provision permits law enforcement officers to enter a home without first knocking and announcing their presence. State v. Johnson, 168 N.J. 608, 611 (2001).
On November 14, 2007, the court signed the search warrant the State sought. In preparation for executing the warrant, the Egg Harbor Township Police Department drafted a written operational plan that included the use of "flash-bang" diversionary devices. At approximately 5:00 a.m. on November 15, 2007, the police executed the search warrant, during which they deployed a flash-bang device inside the front door of defendant's home and in the travel trailer.
Defendant's home was in Egg Harbor Township.
After he was indicted, defendant filed a pretrial motion requesting a Franks hearing, claiming Erman's affidavit in support of the search warrant contained material misstatements that invalidated the warrant. Defendant contended Erman falsely represented: (1) that the photograph depicting him wearing a jacket with the word "Pagan" on the back was taken on November 4, 2007; (2) that defendant was convicted of certain persons not to have weapons in 1989; and (3) that one of the witnesses in the bar indicated he had a gun. The trial court denied the motion, finding the inaccuracies immaterial and, further, there would have been sufficient probable cause to issue the search warrant even in the absence of these statements.
Defendant also filed a motion to suppress the evidence seized at his home on the ground the use of the flash-bang devices was an unreasonable use of force. After a four-day evidentiary hearing, the trial court determined that, under the totality of the circumstances, the officers' use of these devices was reasonable to ensure the officers' and defendant's safety. The court's reasons included that defendant had convictions for unlawful possession of a weapon; had been charged with committing a violent crime and, at the time he assaulted the victim, behaved as though he had a gun; and was a member of the Pagan's Outlaw Motorcycle Club, a group known for engaging in armed conflicts with the Hell's Angels Motorcycle Club.
The trial court also noted that, before the flash-bang was deployed in defendant's home, the police entered the home and ascertained that no one was in the vicinity where this device was going to be used. No one was in fact injured from the flash-bang device and the only property damage was some scorching to a portion of a rug.
The last pretrial motion in issue is one defendant filed before the evidentiary hearing. Defendant filed a motion to obtain a copy of the operational plan the police drafted before they executed the search warrant. The court granted the motion but also entered a protective order allowing the State to redact "the names of entry-team members, plan contingencies, sensitive tactical information, and sensitive logistical information such as radio channels and pre-execution preparations."
The trial court found, among other things, the redactions necessary to protect the police officers' safety. It also determined the unredacted portions of the operational plan provided defendant with sufficient information to advance any arguments against the use of the flash-bang devices on his property.
II
On appeal, defendant argues:
POINT I: THE SEARCH WARRANT FOR DEFENDANT'S PREMISES WAS ISSUED WITHOUT PROBABLE CAUSE, AND THE WARRANT WAS EXECUTED IN AN UNREASONABLE MANNER.
POINT II: THE TRIAL COURT'S PROTECTIVE ORDER UNDULY LIMITED THE DEFENSE.
"[A] search executed pursuant to a warrant is presumed valid." State v. Marshall, 199 N.J. 602, 612 (2009) (citing State v. Jones, 179 N.J. 377, 388 (2004)). "Generally, doubt concerning the validity of a search warrant is to be determined in favor of the preference accorded search warrants." State v. Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2006)(citing State v. Sheehan, 217 N.J. Super. 20, 27 (App. Div. 1987)), aff'd in part and modified in part, 189 N.J. 108 (2007). "Once the judge has made a finding of probable cause on the proof submitted and issued the search warrant, a reviewing court . . . should pay substantial deference to his determination." State v. Kasabucki, 52 N.J. 110, 117 (1968). Because a search warrant is presumed to be valid, an "appellate court's role is not to determine anew whether there was probable cause for issuance of the warrant, but rather, whether there is evidence to support the finding made by the warrant-issuing judge." State v. Chippero, 201 N.J. 14, 20-21 (2009).
"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations omitted) (internal quotation marks omitted). Further, "[a]n appellate court should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id. at 244 (citation omitted) (internal quotation marks omitted). "An appellate court should not disturb the trial court's findings merely because it might have reached a different conclusion were it the trial tribunal or because the trial court decided all evidence or inference conflicts in favor of one side in a close case." Ibid. (citation omitted) (internal quotation marks omitted).
To obtain a no-knock search warrant, an officer must have a "reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence." State v. Johnson, 168 N.J. 608, 619 (2001). An officer's suspicion may be based upon the totality of the circumstances, as well as his experience and knowledge. Ibid. With respect to using flash-bang devices, at the time the trial court decided defendant's motion to suppress, the law required that the use of such devices be objectively reasonable in the situation presented. See State v. Fanelle, 385 N.J. Super. 518, 533 (App. Div. 2006).
The trial court issued its written decision on the motion to suppress on April 17, 2012.
In State v. Rockford, 213 N.J. 424 (2013), our Supreme Court provided additional factors that are to be considered to determine if the use of a flash-bang device was appropriate. The Court stated that the
objective reasonableness of law enforcement's execution of a warrant that includes the use of [flash-bang devices] should be determined on a case-by-case basis, considering the totality of the circumstances. Courts should weigh such factors as the scope of any threat of violence presented by the occupant, the physical features of the residence, the presence of others on the premises, the potential loss of evidence if the device is not used and the risk of personal injury and property damage that the deployment would pose. In some circumstances, the use of a flash-bang device may threaten the safety of occupants and undermine the purpose of the knock-and-announce warrant, and a court might properly find that the device cannot reasonably be deployed in a given setting. In other settings, the risk to officer safety or the threat that evidence could be lost may justify the use of the device.
[Id. at 447-48.]
Defendant maintains there was no probable cause to issue the search warrant but, even if there were, the court erred by including a no-knock provision in the warrant. After carefully considering the record and the briefs, we conclude these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). There was ample probable cause to issue the search warrant and, further, to include a no-knock provision in the warrant to protect the officers' safety. Defendant grievously injured and threatened to kill the victim on November 4, 2007; was a member of a group notorious for engaging in violence; and had two previous convictions for unlawful possession of a weapon.
Defendant contends the trial court erred when it denied his motions for a Franks hearing and to suppress evidence on the ground the police used excessive force by deploying the flash-bang devices. We disagree with both contentions and affirm substantially for the reasons set forth by Judge Bernard E. DeLury, Jr., in his thorough and thoughtful written opinions dated January 4, February 2, and April 17, 2012. We add only the following comments.
In Franks, the Supreme Court held,
where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.
[Franks, supra, 438 U.S. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.]
To establish his right to a hearing, defendant was required to show that had any of the misstatements not been included in Erman's affidavit, the issuing judge would not have issued the warrant because of an absence of probable cause. See State v. Howery, 80 N.J. 563, 567-68 (1979), cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424. We agree with the trial court that defendant failed to make that showing. There was sufficient probable cause to issue the warrant even if all three statements had not been included in the affidavit; therefore, there was no basis to hold a Franks hearing.
On the use of the flash-bang devices, after thoroughly reviewing the record, we find the trial judge's credibility determinations well-grounded and his factual findings supported by substantial credible evidence. We briefly highlight some of the pertinent evidence.
According to the witnesses the trial court found credible, although flash-bangs are not to be used if young children or elderly people are in a home, these devices, which are not grenades or explosives, otherwise do not cause injury unless one is in direct contact with the device at the time of deployment. There were neither young children nor any elderly individuals in defendant's home at the time of the search warrant execution, and no one was within direct contact with the flash-bang device when it was deployed because of precautions the police took before setting it off.
Specifically, after surveilling and securing the property, the police used a heavy ram to break the lock on defendant's front door. They announced they were the police and were present to execute a search warrant. One of the officers went inside the front door and looked around. He did not see anyone, let alone anyone who would have been in direct contact with the flash-bang in the area where the police planned to deploy this device.
The officer placed the flash bang device inside the front door, stepped outside, and deployed the device. He and the other officers were within ten feet of the device when it was set off; none believed it necessary to duck or take cover just before the device was deployed. The deployment did cause a "very" loud noise, a momentary bright flash, and a small amount of smoke, but the noise was not so great that the officers wore protective ear guards. After the officers entered the house, they found and arrested defendant, and seized weapons and various articles of clothing.
Sergeant Edward Leon of the Atlantic City Police Department was the State's expert in S.W.A.T. operations, tactics planning, and the use of diversionary devices. He testified the police had a reasonable concern for their safety when executing the search warrant because of the severity of the injury defendant inflicted upon the victim; his convictions for unlawful possession of a weapon; and his affiliation with the Pagans, a group known for inflicting violence upon the police and using weapons against rival gangs. Leon further testified that the manner in which the police used the flash-bang devices was consistent with acceptable police practices.
"S.W.A.T." stands for "special weapons and tactics." --------
The evidence supports the trial court's finding that the use of the flash-bang devices was objectively reasonable. The officers took reasonable measures to protect their safety, avoid endangering the occupants of the house before deploying the flash-bang, and managed to expeditiously arrest defendant and obtain the evidence they sought.
Finally, defendant contends the court mistakenly exercised its discretion when it ordered the redaction of part of the operational plan. Defendant claims the trial court redacted "information necessary to defendant's challenge to the no-knock warrant and the use of flash-bangs," and that our review of the unredacted plan will "demonstrate the mistake of discretion which unduly prejudiced the litigation of defendant's motions to suppress evidence."
We decline defendant's invitation to peruse an unredacted copy of the plan and engage in an open-ended search to determine if the protective order may have prejudiced defendant's ability to litigate its motions to suppress. That is not our role. If defendant wished to challenge the protective order, it behooved him to present an argument articulating how the court erred by ordering the redaction of the information specified in the protective order and why a reversal of that order is warranted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION