State v. Marshall

delivered the opinion of the Court.

This is a search and seizure case. The question is whether the trial court properly issued a search warrant, conditioned on verification by the police of the particular apartment to be searched inside a two-unit apartment building. The Appellate Division held that the warrant was invalid and suppressed the evidence because the trial court “directed the police to ascertain the facts needed to accurately describe the place to be searched without further judicial oversight or review.” State v. Marshall, 398 N.J.Super. 92, 97, 939 A.2d 813 (App.Div.2008). We agree and affirm.

I.

The facts are largely undisputed and derived in part from the affidavit Detective Michael Novembre of the Mercer County Prosecutor’s Office submitted in support of the search warrant. On October 25, 2004, Novembre requested a warrant to search 105 Wayne Avenue in Trenton. There were two separate units in the building and Novembre did not know which unit Allen Daniels, the principal suspect, had entered to obtain drugs on one occasion. Consequently, Novembre requested that the warrant be issued to search the apartment at 105 Wayne Avenue to which Allen Daniels had “possession, custody, control, or access.”

In the affidavit, Novembre related the background leading up to the search warrant request. He explained that during the months of August and September 2004, the Trenton police, with the assistance of an unproven confidential informant, focused their investigation on Daniels. During that period, the informant made a controlled buy from Daniels and his brother “Booby” at 150 Hoffman Avenue, Trenton.

*607Sometime in September 2004, the Prosecutor’s Office took over the investigation of Daniels’ drug activities. On September 21, 2004, Novembre and Sergeant Fraseella met with the informant. At that time the informant indicated that Daniels had moved his residence to an apartment in Lawrence Township and also utilized a different apartment at or around 9 Sanhican Drive, Trenton, to store heroin and cocaine. Following that meeting, the police arranged for the informant to make a series of controlled buys of drugs from Daniels. As a result of those controlled buys, the police obtained evidence of Daniels’ drug activity at three locations: 150 Hoffman Avenue; his residence in Lawrence Township; and an apartment at 9 Sanhican Drive.

On October 20, 2004, Novembre applied for search warrants for Daniels, his brother “Booby,” Daniels’ car, and the three locations where the controlled buys occurred. In anticipation of executing the search warrants, on October 21, 2004, Novembre arranged for surveillance of Daniels’ residence while the informant attempted a buy of cocaine and heroin. The informant contacted and met Daniels at the Hoffman Avenue address. While there, Daniels told the informant that they needed to “take a ride” to obtain the heroin. The police observed Daniels and the informant enter Daniels’ car and drive to 105 Wayne Avenue. Once there, Daniels exited the car, walked to the front door, waited for someone to open it, and entered. After approximately five minutes, Daniels returned to the car accompanied by another person, unknown to the police at that time but later identified as defendant, Quinn Marshall. The informant, who had remained in the car, paid Daniels and received the drugs. The occupants in the car drove back to the Hoffman Street location.

Later in the debriefing with the police, the informant identified the other person with Daniels as Daniels’ cousin, known as King Zeke, but the informant did not know the location inside the building from which Daniels retrieved the drugs. The informant also recounted that Daniels had indicated that he would be taking drugs to the Sanhican Drive location.

*608Novembre obtained information from Public Service Gas and Electric that there were two apartment units inside 105 Wayne Avenue and that Daniels was not listed on either account. No-vembre also related that neither the Division of Motor Vehicles nor the State Bureau of Identification was able to assist in identifying which unit within 105 Wayne Avenue Daniels had entered.

Novembre requested a search warrant for the apartment within the premises of 105 Wayne Avenue to which “Allen Daniels, A/K/A ‘Marty1 has possession, custody, control or access.” In addition, Novembre requested that the warrant include the following conditional language:

[t]he search warrant for the premise[s] will be executed if and only if the following specifically described events which give rise to probable cause actually occur so as to protect against premature execution of the search warrant, namely: (1) that Men Daniels is secured outside 105 Wayne Avenue and (2) that a search of Men Daniels reveals documentation or keys which identify the specific apartment inside 105 Wayne Avenue to which Men Daniels has possession, custody, control, or access, or if he divulges such information to the officers executing the search warrant for his person. In the event that the officers are unable to identify the apartment utilized by Men Daniels through the abovementioned means, this premises warrant will not be executed.

The trial court approved the search warrant for the premises and included virtually identical conditional language to that proposed in Novembre’s affidavit. The court signed the search warrant on October 25, 2004, at 8:40 a.m.

B.

Four days later, on October 29, 2004, at approximately 8:10 a.m., the police executed the search warrants for the multiple locations other than 105 Wayne Avenue and sought to satisfy the conditions on the warrant for 105 Wayne Avenue. The police found Daniels and his girlfriend at the Lawrenceville address. They immediately placed Daniels under arrest and informed him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Lieutenant Straniero then asked Daniels which apartment he frequents at 105 Wayne Avenue. *609Daniels replied that he does not stay there. After further questioning, Daniels revealed that King Zeke stayed in the first floor apartment. When Straniero asked how many times he had been to 105 Wayne Avenue, Daniels responded, “I been over there, you don’t need to ask me that question. You know I been over there.” Based on that information, Straniero instructed other officers to execute the search warrant in the first floor apartment at 105 Wayne Avenue. The officers did so and found defendant there. The search of the apartment revealed cocaine, marijuana, and several firearms. Defendant was arrested and charged with various drug and weapons offenses.

C.

Defendant was subsequently indicted. He filed a motion to suppress the evidence seized during the search of the apartment at 105 Wayne Avenue. At the hearing, Lieutenant Straniero testified to the facts previously related. Defendant presented the testimony of Daniels, who by then had reached a plea agreement with the State. Daniels testified that at the time he was arrested, he refused to answer Straniero’s question regarding whether King Zeke lived at 105 Wayne Avenue. Daniels stated that he did not know defendant was living at 105 Wayne Avenue, but that he had been in both apartments. Daniels said the police never asked him whether he had access to the second floor apartment.

Defendant also testified. He said that Daniels was his cousin and that at various times he and Daniels had visited both apartments at 105 Wayne Avenue.

The trial court found that the conditions contained in the warrant were satisfied and that there was probable cause to issue the search warrant for the apartment at 105 Wayne Avenue. The court rejected defendant’s argument that the conditions in the warrant delegated the court’s fact finding functions to the police. Consequently, it denied the motion to suppress.

On appeal, the Appellate Division reversed in a reported decision. Marshall, supra, 398 N.J.Super, at 111, 939 A.2d 813. The *610panel held that the warrant should not have been issued because the affidavit failed to sufficiently describe the premises to be searched and “directed the police to ascertain the facts needed to accurately describe the place to be searched without further judicial oversight or review.” Id. at 97, 989 A.2d 813. We granted the State’s petition for certification. 196 N.J. 461, 957 A.2d 1170 (2008).

II.

The legal principles controlling this dispute are straightforward. Both the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution provide in nearly identical language that “no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.” N.J. Const, art. I, If 7. Thus, a warrant should not issue unless the court is satisfied that there, is “probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched.” State v. Sullivan, 169 N.J. 204, 210, 777 A.2d 60 (2001).

We recently explained that

[t]he probable cause standard is a well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within ... [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.

[State v. O’Neal, 190 N.J. 601, 612, 921 A.2d 1079 (2007) (quoting State v. Moore, 181 N.J. 40, 45-46,853 A.2d 903 (2004) (alterations in original)).]

The test 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.’ ” Ibid, (quoting Moore, supra, 181 N.J. at 46, 853 A.2d 903).

*611When a search warrant is sought, “the probable cause determination must be made based on the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously.” Schneider v. Simonini, 163 N.J. 336, 363, 749 A.2d 336 (2000); see also State v. Jones, 179 N.J. 377, 403, 846 A.2d 569 (2004) (same). As one commentator explained, “[Ijimiting consideration to the ‘four corners’ of the evidence before the issuing magistrate assures that the magistrate was in a position to adequately perform the constitutional function of providing independent judicial review prior to executive intrusions on individual privacy.” Kevin G. Byrnes, New Jersey Arrest, Search, & Seizure § 5:2-5 at 78 (2008-09); see also State v. Wilson, 178 N.J. 7, 14, 833 A.2d 1087 (2003) (same); State v. Evers, 175 N.J. 355, 383-85, 815 A.2d 432 (2003) (finding probable cause based upon “four corners” examination of search warrant application materials).

The particularity requirement is uncomplicated. Generally it mandates that “the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.” Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, 760 (1925). It is widely recognized that when a multi-unit building is involved, the affidavit in support of the search warrant must exclude those units for which police do not have probable cause. Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72, 81 (1987). In Garrison, the Court declared that:

The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is “defined by the object of the search and the places in which there is probable cause to believe that it may be found.”

[Id. at 84, 107 S.Ct. at 1016, 94 L.Ed.2d at 80-81 (quoting United States v. Ross, 456 U.S. 798, 824,102 S.Ct. 2157,2172, 72 L.Ed.2d 572, 593 (1982)).]

Additionally, both the Federal and New Jersey Constitutions require that the warrant be issued by a “neutral and *612detached magistrate.” See United States v. U.S. Dist. Ct., 407 U.S. 297, 316, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752, 765 (1972); State v. Frankel, 179 N.J. 586, 597-98, 847 A.2d 561 (2004). As reasoned by Justice Jackson, the purpose behind that rule is relatively simple:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

[Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948).]

Although all warrantless searches are presumptively invalid unless they fall ‘“within one of the few well-delineated exceptions to the warrant requirement,’ ” State v. Johnson, 193 N.J. 528, 552, 940 A.2d 1185 (2008) (quoting State v. Pineiro, 181 N.J. 13,19-20,853 A.2d 887 (2004)), a search executed pursuant to a warrant is presumed valid, Jones, supra, 179 N.J. at 388, 846 A.2d 569. As a consequence, a defendant challenging a warrant “has the burden to prove ‘that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.’ ” Ibid, (quoting State v. Valencia, 93 N.J. 126, 133, 459 A.2d 1149 (1983)). We accord substantial deference to a trial court’s determination that there was probable cause to issue a warrant. Id. at 388-89, 846 A.2d 569.

III.

A.

With the above framework in mind, we turn to the issues in the present case. Before the Appellate Division, the State sought to justify the warrant based essentially on its contention that probable cause existed to search the apartment at 105 Wayne Avenue to which Daniels had “possession, custody, control or access,” and that the warrant sufficiently described the place to be searched. The Appellate Division disagreed and concluded that “[a] warrant that describes the premises to be searched without *613enough clarity to preclude an indiscriminate search of other uninvolved units cannot pass constitutional muster.” Marshall, supra, 398 N.J.Super. at 110, 939 A.2d 813.

The State’s affidavit in support of the search warrant clearly indicated that the police did not know in which of the two apartments at 105 Wayne Avenue the asserted criminal activity took place. As a result, the search warrant was issued in violation of the requirement in our constitution that the warrant particularly describe the place to be searched.

Moreover, the terms of the warrant that delineated the conditions that needed to be satisfied prior to the police execution of the warrant were deficient in at least two ways. First, the probable cause determination could not be made within the four corners of the affidavit as the anticipated conditions listed were to be satisfied after the warrant was issued. Second, because the police were authorized to determine if the conditions were satisfied, the role of the neutral and detached magistrate was delegated to the police. That is, “[t]he validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate.” Garrison, supra, 480 U.S. at 85, 107 S.Ct. at 1017, 94 L.Ed.2d at 81. The failure of the police, prior to the issuance of the warrant, to inform the court by affidavit, by telephone, or in person, of the evidence it developed to determine the particular apartment unit that Daniels entered to retrieve drugs rendered the search warrant invalid.

B.

In urging this Court to reach a contrary conclusion, the State cites Garrison, supra, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72, and this Court’s opinion in State v. Wright, 61 N.J. 146, 293 A.2d 380 (1972), which cited approvingly State v. Ratushny, 82 N.J.Super. 499, 198 A.2d 131 (App.Div.1964). We turn now to discuss those three cases.

*614Although the State recognizes that the United States Supreme Court has not previously ruled on the validity of a search warrant similar to the one issued here, it urges that Garrison supports its position. In Garrison, supra, the trial court authorized a search warrant for a third-floor apartment, not knowing there were two apartments on the third floor. 480 U.S. at 80,107 S.Ct. at 1014, 94 L.Ed.2d at 78. The police searched the apartment unit that was not occupied by the suspect and found contraband before they realized they were searching the wrong apartment. Ibid. The Supreme Court found that the “officers’ conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment.” Id. at 88, 107 S.Ct. at 1019, 94 L.Ed.2d at 83. However, in a footnote, the Court explained that if the police know there are two apartments, but do not know which one contains the illegal activity, then “[a] search pursuant to a warrant authorizing a search of the entire floor ... would present quite different issues from the ones before us in this ease.” Id. at 89 n. 13, 107 S.Ct. at 1019 n. 13, 94 L.Ed.2d at 83 n. 13.

To be sure, Garrison does not control the case before us. Nor do we know how the United States Supreme Court would decide a case with facts similar to those presented here. In any event, we need not concern ourselves with any prediction on that score because we rest our opinion on our interpretation of the New Jersey Constitution.

The State also relies on this Court’s opinion in Wright and argues that the particularity requirement was satisfied in the present case by the reference in the warrant to the unit to which Daniels had “possession, custody, control, or access.” In Wright, supra, the affidavit in support of the warrant outlined that the police had observed four known drug users enter and leave the premises. 61 N.J. at 148, 293 A.2d 380. The affidavit merely referred to the top floor of 203 Spruce Street and did not describe that the top floor contained three separate apartments. Id. at 148-49, 293 A.2d 380. The trial court approved the search war*615rant. Id. at 147-48, 293 A.2d 380. The defendant challenged the search on the grounds that the affidavit in support of the warrant failed to adequately describe the premises to be searched. Id. at 148, 293 A.2d 380. In rejecting that argument, this Court found no inaccuracy in the description in failing to indicate which of the three apartments was intended because “the affidavit did state that the intended apartment was the one that was in fact occupied by the defendant.” Id. at 149, 293 A.2d 380. The Court then stated, “[w]e take this to have been the holding in State v. Ratushny.” Ibid. We explained that the “underlying reason for the requirement that there be an adequate description of the premises in a search warrant is to prevent the police officer from entering property which he has no authority to invade.” Ibid. Further, the Court found support for its decision from the evidence at the suppression hearing demonstrating that several months before, the same police officers had searched that same apartment. Ibid.

We disagree that Wright dictates that we find the search warrant in the present case was valid. In Wright, at the time the warrant was sought, the police were aware of the actual apartment in which the defendant resided, and the defendant was found in that apartment when the warrant was executed. Here, unlike in Wright, at the time the warrant was issued the police did not know in which of the two apartments the alleged criminal activity took place, and Daniels, the focus of the investigation, did not reside at that address. We find no justification to expand the holding in Wright beyond the particular facts of that case. That is, in Wright the police at the time of seeking the warrant knew in which of the three apartments the defendant resided but failed to designate that apartment in the affidavit.

Additionally, the State contends that the warrant complied with the conditions delineated in Ratushny. We disagree. In Ratushny, supra, the police sought a warrant to search an apartment in which the defendant was allegedly engaged in illegal gambling activity. 82 N.J.Super. at 502, 198 A.2d 131. The trial court *616suppressed the evidence from the search because the facts set forth in the affidavit were insufficient to justify a warrant. Ibid. The Appellate Division affirmed. Id. at 507, 198 A.2d 131. The panel observed that the affidavit failed to mention that there were four apartments in the building and that when probable cause is shown for searching only one apartment but the warrant authorizes a search of the entire building, the warrant is void. Id. at 504-05,198 A.2d 131. The panel explained that “[t]he validity of a search warrant depends upon the showing made before the magistrate or judge who issues it.” Id. at 506, 198 A.2d 131. Despite that conclusion, the panel offered guidance when the particular apartment number or location is not known and the police are justified in not inquiring for fear of alerting a suspect. Ibid. The panel suggested that in addition to a detailed description of the entire building, the affidavit should include “a phrase such as ‘the premises occupied by [the defendant] and over which he has possession and control.’ ” Id. at 506-07, 198 A.2d 131 (alteration in original). The panel emphasized that such a general description “will pass muster only when it appears that a more specific description could not be obtained without endangering the secrecy of surveillance or the efficacy of an arrest, or there are equivalent justifying circumstances.” Id. at 507,198 A.2d 131.

The Appellate Division in this case rejected, as do we, the argument that the dictum in Ratushny supports the State’s position that it was sufficient to generally describe the apartment unit in a multiple unit structure by referring only to the apartment to which Daniels had “possession, custody, control or access.” Moreover, even if we were to accede to a broad reading of Ratushny, the State failed to establish why a more specific description of the apartment for which the warrant was sought could not have been obtained prior to seeking the warrant. According to the affidavit, the informant advised police that he knew King Zeke and that both King Zeke and Daniels exited the property at 105 Wayne Avenue. Yet, there was no evidence of any effort by the police to determine King Zeke’s legal name or which, if any, apartment he resided in at 105 Wayne Avenue. The reference in the affidavit *617was limited to investigations of Daniels’ relationship with that address, not defendant’s. Further, mere access to a particular apartment is not the kind of possession or control we believe the Ratushny panel required. Thus, even if we were to apply the dictum in Ratushny, the general description here would not pass muster because the nature of the circumstances either permitted the police to discover the specific apartment unit prior to obtaining the search warrant, or at minimum, would have allowed the police to return to the court to amplify the affidavit with the precise unit prior to executing the warrant.

We reiterate that a neutral and detached magistrate must determine probable cause that contraband will be found at a particular location, or that an offense is being committed there. Because that did not occur here, the search warrant was deficient.

IV.

The State also asserts that, irrespective of any infirmities in the affidavit or warrant, suppression is not justified where the police follow the procedure approved by the trial court. The State urges that we not follow our rejection of the good-faith exception in State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (1987). In contrast, defendant argues that the particularity and probable cause requirements are inexorably intertwined and that the failure to comply with the particularity requirement is not a technical error.

We agree with defendant’s position. In State v. Valencia, 93 N.J. 126, 132, 459 A.2d 1149 (1983), we addressed a similar argument by the State in the context of a telephonic warrant request in which the officer read his unsworn affidavit to a judge and was not placed under oath. We explained that “[cjourts in this State consistently have maintained that strict adherence to the protective rules governing search warrants is an integral part of the constitutional armory safeguarding citizens from unreasonable searches and seizures.” Id. at 134, 459 A.2d 1149. We concluded that the “deviations from the rules governing search *618warrants in the aggregate constitute material noncompliance with the rules governing search warrants.” Id. at 136, 459 A.2d 1149. See also State v. Johnson, 168 N.J. 608, 623, 775 A.2d 1273 (2001) (noting that “to permit a good-faith exception to apply in respect of one element of the warrant, i.e. the no-knoek provision, but not in respect of other elements would lead ultimately to a patchwork of incongruous case law”).

In short, the failure to comply with the particularity requirement and the failure to have a neutral magistrate or judge determine whether the conditions in the warrant were satisfied are constitutional violations. We do not view those violations as “technical insufficiencies or irregularities,” R. 3:5-7(g), justifying overlooking the deficiencies in the warrant. “We serve the criminal justice system best by enforcing clear and uniform rules whenever appropriate under the circumstances.” Johnson, supra, 168 N.J. at 623, 775 A.2d 1273.

V.

The judgment of the Appellate Division is affirmed.