NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1577-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

May 13, 2014 v. APPELLATE DIVISION CHAD BIVINS,

Defendant-Appellant. ______________________________

Argued January 8, 2014

Before Judges Sapp-Peterson and Lihotz.

Telephonically reargued March 27, 2014 - Decided May 13, 2014

Before Judges Sapp-Peterson, Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-06-1396.

Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Michaels, of counsel and on the briefs).

Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Schuster, of counsel and on the brief).

The opinion of the court was delivered by

SAPP-PETERSON, P.J.A.D. In this appeal, we consider whether the scope of the

permissible area and persons to be searched, pursuant to a

search warrant, extends to the location where defendant Chad

Bivins and his co-defendant Sayid Jordan were found, seated in a

Pontiac, parked five or six houses away from the premises where

a search warrant was being executed. The motion judge denied

the motion to suppress the evidence seized following the search

of the two men, finding that Bivins's and Jordan's removal from

the vehicle and the contemporaneous search of the two men were

actions within the scope of the warrant being executed. Based

upon our review of the record in light of Bailey v. United

States, __ U.S. __,

,

(2013), a

decision rendered after the trial court denied the motion, we

now reverse.

I.

We derive the facts from the suppression motion at which

defendant and Trooper Matthew Moore testified. Our standard of

review requires that we accord deference to the motion judge's

credibility assessments. State v. Rockford,

(2013) ("An 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." (citations and internal

2 A-1577-12T2 quotation marks omitted)). Although defendant also testified,

we consider the legal issues implicated in this appeal based

upon the testimony of Trooper Moore, whose testimony the trial

court credited in upholding the search.

On March 29, 2011, police executed a "no-knock" warrant at

a residence located on Park Boulevard in Camden. The search

warrant identified the residence as a "two (2) story single

family dwelling located on the south side of Park Boulevard,

between Haddon Avenue and Princess Street," and described that

"[t]here are multiple concrete steps that lead to the front

door." The search warrant commanded police executing the

warrant to enter the premises and to search for property

specified in the warrant and "all persons present reasonably

believed to be connected to said property and investigation."

Neither defendant, co-defendant Jordan, nor the grey Pontiac

from which they were removed, were identified, in the affidavit

submitted in support of the search warrant application, as

persons or property suspected of being connected to the

residence or investigation.

Trooper Moore was assigned as part of scene security, which

he described as ensuring that no one entered or left the "crime

scene" during the execution of the search warrant. Before the

officers executing the search warrant entered the premises,

3 A-1577-12T2 Trooper Moore positioned his vehicle about six or seven blocks

away, near Camden High School. He explained that once execution

of the search warrant was underway, he was asked to "come down

to the corner of Park and Princess and make sure nobody entered

the sidewalk approaching the house or left the area." He stated

the plan called for the officers to enter the premises from its

rear. When he received the call that the search warrant was

being executed, he proceeded towards his assigned location and

testified: "[A]s we were approaching, we got notification that

somebody[1] was leaving the residence and they were approaching, I

believe it was a Pontiac, and at that time somebody called out

the description of the Pontiac[.]"

When Trooper Moore received the alert, he had not yet

arrived at his assigned post, but as he pulled up, he noticed

the "description of the vehicle they were talking about was

sitting at the corner of Park and Princess[,] which is where

[he] was assigned to go." He "observed the grey Pontiac sitting

there" and "believe[d] two individuals were in the car." He

testified that "we got them out, we checked them, and then I

took them over to the case agent and turned them over to them."

In response to a question from the motion judge whether he found

1 The record is not clear if there was one or more than one person observed leaving the residence.

4 A-1577-12T2 anything on the two men, he stated that he believed "there was

some crack on both individuals . . . approximately thirty

[bags]" on each man. He described the location of the vehicle,

in relation to the residence being searched, as five or six

houses away, on the same side of the street. Finally, in

response to the court's question whether he observed the two men

"run into the vehicle," the trooper said: "No[,] I didn't. By

the time I came in contact with them they were already where

they were[.]"

The court denied the motion, finding that the search was

within the "rubric" of the search warrant. The present appeal

followed. Defendant raises a single point for our

consideration:

TROOPER MOORE DID NOT HAVE PROBABLE CAUSE TO PULL MR. BIVINS AND MR. JORDAN FROM THE CAR AND SEARCH THEM BASED ONLY ON INFORMATION THAT "TWO GUYS" HAD LEFT A HOUSE WHICH POLICE WERE SEARCHING PURSUANT TO A WARRANT, AND THAT THE GUYS WERE "APPROACHING" A GREY PONTIAC. ACCORDINGLY, THE FRUITS OF THE SEARCH MUST BE SUPPRESSED.

II.

When evaluating the constitutionality of police conduct in

executing a search warrant, "[i]t is well settled that officers

searching a person's home, car or belongings under authority of

a search warrant are authorized to use only those investigatory

methods, and to search only those places [or persons],

5 A-1577-12T2 appropriate in light of the scope of the warrant." State v.

Reldan,

(1985) (citing Harris v. United

States,

,

,

(1947)). "An analysis of the reasonableness of the methods

used in a search, as well as the areas searched, should focus

upon whether the search in its totality was consistent with the

object of the search."

That analysis begins first with an examination of the terms

of the search warrant, which must be strictly respected.

. Thereafter, the analysis

focuses upon police conduct in accomplishing the object of the

search. State v. Rodriguez,

(App. Div.

2008). Thus, in State v. Carlino,

(App.

Div. 2004), certif. denied,

(2005), we found the

warrant was strictly respected and the officers' conduct

objectively reasonable. Id. at 396. There, a warrant issued to

search a suspected drug dealer's residence and Lexus authorized

the officers to search "any and all persons arriving at,

departing from and located therein reasonably believed to be

associated with the investigation." Id. at 382 (internal

quotation marks omitted). Plainclothes officers searching the

garage and Lexus noticed an individual approach the residence

and, without knocking or ringing the bell, open the door and

6 A-1577-12T2 walk into the residence. Id. at 383. One of the officers

followed the individual into the house, and the individual asked

the whereabouts of the suspected drug dealer. Ibid. When the

individual realized, however, that he was speaking to a police

officer, he became visibly nervous and started clutching even

harder a fanny bag he was holding in his hand. Ibid. In

finding the seizure of the fanny bag justified, we did so based

upon a number of factors, including that the individual appeared

at the house after midnight, walked directly into the house

without knocking, and became nervous and started to firmly

clutch the bag he was holding once he realized he was speaking

to a police officer, whose police badge was visible. Id. at

394-95.

More importantly, we concluded the "[d]efendant

mischaracterize[d] the scope and meaning of the search warrant."

Id. at 392. We noted:

The search warrant did not authorize a search of "all persons present." Rather, the warrant provided for the police to determine on-the-spot whether or not a person's presence at the time and given the circumstances establishes a reasonable belief that the individual is involved in criminal activity. The search warrant was issued for a home allegedly used for the continued distribution of cocaine and other narcotics. Defendant's presence was more than just a mere coincidence. Defendant appeared at the home at midnight when a merely social visit would be unlikely.

7 A-1577-12T2 Defendant arrived at the residence and walked directly inside. Under these facts, the police had probable cause to search defendant upon entering the home after midnight.

[Id. at 392-93.]

Our reasoning in Carlino was consistent with the United

States Supreme Court's decision in Michigan v. Summers,

,

,

(1981),

where the Court held that a "warrant to search for contraband

founded on probable cause implicitly carries with it the limited

authority to detain the occupants of the premises while a proper

search is conducted." Thus, unless the search warrant

authorizes the search of particular persons, the issuance of a

search warrant does not necessarily authorize the search of

persons found on or near the premises during the execution of

the warrant; rather, police may detain such persons while

evidence is sought.

In other words, beyond detaining

persons present during the execution of the search warrant, the

search of persons present during the search requires that police

establish more than their mere presence. See, e.g., Ybarra v.

Illinois,

,

,

(1970) (stating "a person's mere propinquity to others

independently suspected of criminal activity does not, without

8 A-1577-12T2 more, give rise to probable cause to search that person"). This

point was most recently highlighted in Bailey.

In Bailey, the Court clarified its decision in Summers by

holding that the limited authority to detain an occupant of a

premises being searched is spatially constrained.

___ U.S. at ___,

,

.

The Court stated: "Once an individual has left the immediate

vicinity of a premises to be searched, . . . detentions must be

justified by some other rationale."

at ___,

,

.

There, police observed the petitioner and another

individual leaving a gated area above a basement apartment for

which police had obtained a search warrant to search for a

weapon previously observed by a confidential informant during a

drug purchase.

at ___,

,

. Both men matched the general description of the individual

from whom the informant alleged he had purchased drugs.

The two men entered a vehicle, and police followed the vehicle

for approximately one mile before pulling it over.

During questioning, the petitioner initially told police he had

been coming from his apartment.

When he was told police

were executing a search warrant at that apartment, the

petitioner denied living there.

He later moved to

9 A-1577-12T2 suppress the statement he made to police and a key to the

apartment police seized from him.

The District Court denied the motion, concluding the

petitioner's detention was justified under Summers.

at ___,

,

. The Second Circuit

affirmed and the Supreme Court reversed.

The Court

discussed the three law enforcement interests that justify the

detention of an occupant who is on the premises during the

execution of a search warrant: officer safety, facilitating the

completion of the search, and preventing flight.

at ___,

,

. The Court concluded

none of those interests were impacted by petitioner's detention.

at ___,

,

.

In addressing the first interest, officer safety, the Court

noted

"the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence," and "[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation."

[Id. at ___,

,

(quoting

,

,

).]

10 A-1577-12T2 Turning to the second interest, the Court stated that "'the

orderly completion of the search may be facilitated if the

occupants of the premises are present.'"

at ___,

,

(quoting

,

,

). Finally, as

to the third law enforcement interest, "preventing flight in the

event that incriminating evidence is found[,]" the Court

explained this interest must be spatially constrained.

at

___,

,

(quoting

,

,

-

50). The Court reasoned:

A spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for detentions incident to the execution of a search warrant. . . . Limiting the rule in Summers to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification. Once an occupant is beyond the immediate vicinity of the premises to be searched, the search-related law enforcement interests are diminished and the intrusiveness of the detention is more severe.

. . . .

. . . A suspect's particular actions in leaving the scene, including whether he appears to be armed or fleeing with the evidence sought, and any information the officers acquire from those who are

11 A-1577-12T2 conducting the search, including information that incriminating evidence has been discovered, will bear, of course, on the lawfulness of a later stop or detention. For example, had the search team radioed Detectives Sneider and Gorbecki about the gun and drugs discovered in the Lake Drive apartment as the officers stopped Bailey and Middleton, this may have provided them with probable cause for an arrest.

[Id. at ___,

,

.]

Applying the Court's reasoning in Bailey to the present

matter compels reversal. Trooper Moore did not witness the two

men fleeing from the residence or entering the vehicle, in which

they were seated, parked five or six houses away from the

residence being searched. As noted earlier, it was undisputed

the affidavit submitted in support of the search warrant

application and the search warrant issued did not identify

defendant, Jordan, or the grey Pontiac as persons or property to

be searched. Additionally, the information conveyed by the

search team to Trooper Moore did not report that the search team

had found incriminating evidence related to defendant or that

the individual(s) leaving the residence were suspected of being

armed or possessing incriminating evidence. While 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

12 A-1577-12T2 vicinity of the premises to be searched."

___

U.S. at ___,

,

.

Moreover, at the point when defendant and Jordan were

removed from the Pontiac and searched, there was no legitimate

law enforcement interest at stake to justify Trooper Moore's

actions.

at ___,

,

.

Rather, dispatch had merely conveyed that "somebody was leaving

the residence and they were approaching . . . a Pontiac,"

described as grey. Based upon this information, it was not

clear whether the person(s) seen approaching the grey Pontiac

actually entered it. Further, positioned six or seven blocks

away at the time he received this information, and without other

identifying information, Trooper Moore could not confirm that

defendant and Jordan were the same person(s) observed leaving

the premises and approaching the grey Pontiac.

The State urges that because defendant does not challenge

the validity of the search warrant, "[p]robable cause is thus no

longer in doubt[.]" Since, however, we conclude the search of

defendant was "beyond the immediate vicinity of the premises

being searched," probable cause to search defendant cannot rest

upon the search warrant.

at ___,

,

. Rather, justification for the search can only be

upheld by application of traditional standards by which such

13 A-1577-12T2 intrusions into a person's liberty are governed.

at ___,

,

.

As our Court has often stated, probable cause to search an

individual "is not susceptible of precise definition." State v.

Moore,

(2004). Rather, it is "'a fluid concept

— turning on the assessment of probabilities in particular

factual contexts — not readily, or even usefully, reduced to a

neat set of legal rules.'" State v. Basil,

(2010) (quoting Illinois v. Gates,

,

,

(1983)). Probable cause

entails a "'practical, nontechnical conception' addressing 'the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act.'"

(quoting

,

,

). Thus, courts must determine whether the

State has met its burden in establishing that the warrantless

search of an individual was justified by considering the

totality-of-the-circumstances test set forth in

,

,

. The

test is fact specific to each case and

requires the court to make a practical, common sense determination whether, given all of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The factors to be considered in applying

14 A-1577-12T2 that test include a police officer's common and specialized experience, and evidence concerning the high-crime reputation of an area[.] Although several factors considered in isolation may not be enough, cumulatively these pieces of information may become sufficient to demonstrate probable cause.

[Moore, supra,

(citations and internal quotation marks omitted).]

During oral argument, the motion judge noted that absent

the search warrant, the search "may have been an invalid arrest

because [] defendants didn't do anything unlawful even assuming

they ran from the house." Trooper Moore testified he had no

independent involvement in the investigation, his role was

limited to securing the "crime scene," and he had not observed

defendant and Jordan leaving the premises or entering the car.

Further, he did not testify the two men appeared nervous or made

any furtive movements once he approached them seated in the

vehicle. See State v. Jones,

(App.

Div. 1996) (upholding the search of a canister in the

defendant's car where the defendant made furtive gestures,

appeared nervous, exhibited bloodshot and dilated eyes, and was

unable to produce driving credentials). Additionally, there is

no indication that either defendant or Jordan were aware the

premises were being searched. Even assuming that defendant,

like the petitioner in Bailey, had just left the premises, this

was insufficient in this instance "to justify an expansion of

15 A-1577-12T2 the rule in Summers" to permit his seizure and the search that

followed.

___ U.S. at ___,

,

.

To uphold defendant's seizure and the subsequent search

under these factual circumstances "would give officers too much

discretion. The categorical authority to detain incident to the

execution of a search warrant must be limited to the immediate

vicinity of the premises to be searched."

Parked five or

six houses away from the premises being searched, arguably may

have placed defendant within the line of sight of the premises

and justified his detention.

at ___,

,

. Trooper Moore, however, did more than

simply detain defendant. He seized him and immediately searched

him. Neither defendant's nor Jordan's conduct or the

information Trooper Moore possessed supported defendant's

seizure and the search that followed.

at ___,

,

(noting that "[t]he interest in

preventing escape from police cannot extend this far without

undermining the usual rules for arrest based on probable cause

or a brief stop for questioning under standards derived from

Terry2").

2 Terry v. Ohio,

,

,

(1968).

16 A-1577-12T2 Finally, we reject the State's argument that Trooper

Moore's conduct was objectively reasonable under State v. Handy,

(2011), and State v. Green,

(App. Div. 1999). The State urges there is ample support in the

record to apply the proposition that a reasonable, but mistaken

belief leading to an arrest does not render Trooper Moore's

actions constitutionally deficient to warrant suppression of the

evidence seized.3 Neither decision supports the State's

position.

In Handy, the Court acknowledged that "'room must be

allowed for some mistakes by police.'"

(quoting Illinois v. Rodriguez,

,

,

, 159–60 (1990)). The Court

qualified this principle by stating that police must have acted

reasonably.

The Court found the police dispatcher, who

the Court agreed the Appellate Division appropriately

characterized as the "crucial link between the officer in the

field and police headquarters," acted unreasonably because she

was aware of discrepancies between the warrant and the

3 Following the first oral argument, the State sought leave to file a supplemental letter brief, which we denied. At oral argument, the State nonetheless advanced the "objectively reasonable belief" position and we therefore, sua sponte, vacate the order denying leave to file the supplemental brief and have considered it.

17 A-1577-12T2 information provided by the officer but took no further steps.

Id. at 53. The Court affirmed the Appellate Division judgment

reversing the trial court order denying the suppression motion.

Id. at 54. Here, based upon the limited information Trooper

Moore 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.

In Green, investigators from the Camden County Sheriff's

Department had an arrest warrant for a fugitive named Corey

Lovett. Green, supra,

. The defendant's

appearance closely matched the description of the fugitive

described in the warrant and just before the arrest, the

defendant was standing directly in front of the residence where

the fugitive reportedly resided.

When the investigators

identified themselves, the defendant fled into the home, where

he was pursued and arrested.

Once at the police station,

the investigators learned that defendant was not the fugitive.

The defendant moved to suppress drugs he discarded while

fleeing from the investigators. Finding striking similarities

between the defendant's appearance and that of Lovett, as well

as considering the defendant's conduct when the investigators

identified themselves, the court found that the investigators

18 A-1577-12T2 acted reasonably and denied defendant's motion. On appeal, we

agreed and affirmed.

.

In contrast, Trooper Moore knew only that somebody or two

men had left the premises and they were walking towards a grey

Pontiac. He was not told these persons had fled the premises

with evidence sought in the search warrant.

___

U.S. at ___,

,

. Nor did

the two men act suspiciously or nervously when the trooper

approached the grey Pontiac. Carlino, supra,

. Under these circumstances Trooper Moore's conduct was not

objectively reasonable justifying defendant's seizure and the

subsequent search.

Reversed and remanded for further proceedings. We do not

retain jurisdiction.

19 A-1577-12T2