State v. Boone

• Decision Date: 18 December 2017
• Docket Number: A–3 September Term 2016,077757
• Citation: 232 N.J. 417,180 A.3d 1110
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Akeem BOONE, Defendant–Appellant.
• Court: New Jersey Supreme Court

232 N.J. 417

180 A.3d 1110

STATE of New Jersey, Plaintiff–Respondent,

v.Akeem BOONE, Defendant–Appellant.

A–3 September Term 2016

077757

Supreme Court of New Jersey.

Argued September 25, 2017

Decided December 18, 2017

Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Daniel V. Gautieri, of counsel and on the briefs).

Suzanne E. Cevasco, Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Bergen County Prosecutor, attorney; Suzanne E. Cevasco, of counsel and on the briefs, and Catherine A. Foddai, of counsel).

Jenny M. Hsu, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Christopher S. Porrino, Attorney General, attorney; Jenny M. Hsu, of counsel and on the brief).

JUSTICE FERNANDEZ–VINA delivered the opinion of the Court.

In this appeal, we consider whether a warrant application that did not include evidence as to why a specific apartment unit should be searched fell short of establishing probable cause for the search of that apartment, in violation of the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution.

Defendant Akeem Boone faced seven charges related to drugs and a weapon found during an August 2012 search of his apartment in Hackensack. He sought to suppress the evidence seized pursuant to a search warrant police had secured for his apartment, Unit 4A, because the warrant application did not include any evidence as to why that specific unit should be searched.

The trial court denied Boone's motion to suppress. It found, based on the totality of the circumstances, that the warrant application sufficiently detailed hand-to-hand transactions, counter-surveillance techniques, and past interactions with Boone to establish probable cause for a search. Subsequently, Boone pleaded guilty to possession of a controlled substance with intent to distribute and a related weapons offense. The Appellate Division affirmed, finding that the application contained "adequate circumstantial indicia" to support issuing a warrant to search Boone's apartment unit.

We disagree. Although police submitted a detailed warrant application that included information about Boone's alleged drug-dealing in the general area, nothing in the application specified how police knew Boone lived in Unit 4A or why that unit—one of thirty units in the building—should be searched. Because the warrant affidavit failed to provide specific information as to why Boone's apartment and not other units should be searched, the warrant application was deficient. Accordingly, we reverse the judgment of the Appellate Division and vacate Boone's convictions.

I.

A.

Over the course of two months during the summer of 2012, the Bergen County Prosecutor's Office Narcotics Task Force set up surveillance of Boone for suspected distribution of crack cocaine, marijuana, and heroin. Police observed Boone engage in drug-related activities in Englewood, River Edge, and Hackensack.

On August 27, 2012, police observed Boone drive to a parking lot in River Edge and retrieve a duffel bag from an unoccupied vehicle. He later drove to an apartment building, 211 Johnson Avenue, where police suspected he lived. Boone did not bring the bag into the thirty-unit building. An hour later, Boone went to retrieve the bag but, noticing the vehicle from which police were monitoring him, returned the bag to the car and drove away. Several times that day, police saw him drive to and from the Johnson Avenue apartment complex.

That same evening, police followed Boone from Johnson Avenue to Main Street in Hackensack, where they observed what appeared to be a hand-to-hand drug transaction between Boone and a man in a black Acura. Police checked the license plates on the Acura and learned the car was registered to a person who had previously been arrested for narcotics possession. Boone then drove back to the Johnson Avenue apartment complex.

On August 29, 2012, Detective Dennis Conway of the Bergen County Prosecutor's Office applied for a warrant to search Boone, his car, and Unit 4A of 211 Johnson Avenue—identified as Boone's apartment—among other things. Specifically, Conway described Boone's residence as a "multi-family dwelling, constructed of tan brick.... The [principal] entrance for the premise[s] has the number # 211 on the front glass door. There are three (3) steps to get to the glass front doors."

The detective did not note that the building was a thirty-unit apartment building, nor did he provide any details about Unit 4A or how police knew Boone was a tenant in that unit.

In describing the basis of his knowledge, the detective stated that he had been investigating Boone since July 29, 2012. He indicated that he learned that Boone had been arrested in April 2011 in New York for burglary. He wrote that police had observed Boone entering an Englewood apartment where a known drug dealer lived. He also included information about Boone's August 27, 2012 activity. Although the warrant application frequently mentions 211 Johnson Avenue, it never discusses the inside of the apartment building, and it fails to mention Unit 4A other than in passing. However, the detective concluded that "my investigation reveals that Boone is distributing Controlled Dangerous Substances, 211 Johnson Avenue, Apartment 4A, Hackensack."

The trial court subsequently issued a warrant to search Boone, his residence, and his car. Police executed the search warrant on September 7, 2012, and found between one-half and five ounces of cocaine and an illegal handgun in Unit 4A. They then arrested Boone.

B.

In February 2013, a grand jury charged Boone with first-degree operating a facility used to manufacture a controlled substance, contrary to N.J.S.A. 2C:35–4 (count one); second-degree possession of cocaine with the intent to distribute, contrary to N.J.S.A. 2C:35–5(a)(1) and (b)(2) (count two); second-degree possession of a firearm while committing a controlled substance offense, contrary to N.J.S.A. 2C:39–4.1(a) (count three); third-degree receiving stolen property, contrary to N.J.S.A. 2C:20–7 (count four); second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24–4(a) (count five); third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24–4(a) (count six); and second-degree certain persons not permitted to have a weapon, contrary to N.J.S.A. 2C:39–7 (count seven).

Boone sought to suppress the evidence found in Unit 4A on the ground that the search warrant lacked a factual basis to establish probable cause to search his apartment.

The trial court denied the motion in a written opinion. Although the court acknowledged that police offered no support to justify a search of Unit 4A, it noted that Detective Conway provided extensive details of the police surveillance of Boone. The court found the detective credible. Despite the lack of specificity, the court found that "[t]here is no binding authority that prompts the officer to state a reason why Apartment 4A was the subject of the search warrant and not any other apartment in the complex."

The court noted that police established "suspicious circumstances" based on Boone's furtive movements, hand-to-hand drug transactions, use of the apartment building—"a common factor in the surveillance"—and erratic driving to justify probable cause to search his apartment unit. In denying the motion, the court found that Boone's activity, coupled with the detective's investigative experience and Boone's criminal history, established probable cause to search Unit 4A.

After the denial of his motion to suppress, Boone pled guilty to second-degree possession of a controlled substance with the intent to distribute, contrary to N.J.S.A. 2C:35–5(a)(1) and (b)(2), and second-degree possession of a weapon while committing a controlled substance crime, contrary to N.J.S.A. 2C:39–4.1(a). He was sentenced to three years of imprisonment with one year of parole ineligibility for the drug offense, to run consecutively with the sentence of five years of imprisonment with three years of parole ineligibility on the weapons offense. In total, Boone faced eight years of imprisonment with four years of parole ineligibility, in addition to concurrent sentences for unrelated offenses.

The Appellate Division affirmed the denial of the motion to suppress in an unpublished opinion. The panel held that the totality of the circumstances presented in the affidavit justified a finding of probable cause for the issuance of the search warrant. Further, the panel noted that "[t]here were adequate circumstantial indicia here to support a reasonable belief that the apartment that was searched was indeed defendant's." Specifically, the panel found that the issuing judge had "ample grounds to anticipate" that narcotics would be in Boone's apartment "given the furtive conduct of defendant the surveilling officers had observed and his two recent apparent hand-to-hand drug transactions at another location."

We granted certification, 227 N.J. 356, 151 A.3d 964 (2016), and also granted the Attorney General amicus curiae status.

II.

Boone argues that the warrant application was deficient because it listed Unit 4A as Boone's residence in a conclusory manner, without a sufficient factual basis. He argues that police could have easily verified his residence through surveillance or government records. Additionally, he argues that there was similarly no basis to conclude that narcotics were in his apartment because the affidavit never established a nexus linking the hand-to-hand drug transactions with Boone's residence.

Although the State concedes that it did not provide a factual basis to indicate why Unit 4A should be searched, it counters that the totality of the circumstances justified the issuance of a search warrant because surveillance placed Boone at 211 Johnson Avenue before and after drug transactions. The State...