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Date: 12-21-2017

Case Style:

STATE OF NEW JERSEY v. AKEEM BOONE

Case Number: (A-3-16) (077757)

Judge: Faustino J. Fernandez-Vina

Court: SUPREME COURT OF NEW JERSEY

Plaintiff's Attorney: Suzanne E. Cevasco
Assistant Prosecutor

Suzanne E. Cevasco

Catherine A. Foddai

Defendant's Attorney: Daniel V. Gautieri
Assistant Deputy Public Defender

Joseph E. Krakora
Public Defender

Daniel V. Gautieri

Description: 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


3

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.


4

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


5

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


6

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.


7

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.”


8

We granted certification, 227 N.J. 356 (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 argues that omission of facts supporting the apartment
unit does nothing to diminish the direct evidence of those
transactions.
Amicus curiae, the Attorney General, further argues that
Boone did not overcome the presumption of validity attached to
search warrants. Amicus argues that the omission of facts


9

connected to the apartment unit is a technical error that should
not invalidate an otherwise well-supported warrant application.
III.
A.
An appellate court reviewing a motion to suppress evidence
in a criminal case must uphold the factual findings underlying
the trial court’s decision, provided that those findings are
“supported by sufficient credible evidence in the record.”
State v. Scriven, 226 N.J. 20, 40 (2016). The suppression
motion judge’s findings should be overturned “only if they are
so clearly mistaken ‘that the interests of justice demand
intervention and correction.’” State v. Elders, 192 N.J. 224,
244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
However, we owe no deference to conclusions of law made by lower
courts in suppression decisions, which we instead review de
novo. State v. Watts, 223 N.J. 503, 516 (2015).
B.
The search-and-seizure provision in Article I, Paragraph 7
of New Jersey’s Constitution affords a higher level of
protection for citizens than the Fourth Amendment of the United
States Constitution. See State v. Johnson, 193 N.J. 528, 541
(2008). Great protection applies especially in one’s home, the
sanctity of which “is among our most cherished rights.” State
v. Bryant, 227 N.J. 60, 69 (2016) (quoting State v. Frankel, 179


10

N.J. 586, 611 (2004)). Therefore, our courts have announced a
preference for law enforcement to secure warrants from detached
judges prior to a search, and searches without a warrant are
presumed unreasonable unless they fall within an exception to
the warrant requirement. Id. at 69-70; see also State v.
Edmonds, 211 N.J. 117, 129 (2012); Johnson, 193 N.J. at 552.
The application for a warrant must satisfy the issuing
authority “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. Jones, 179 N.J. 377, 388 (2004)
(emphases added) (quoting State v. Sullivan, 169 N.J. 204, 210
(2001)). A neutral magistrate, not the police, should determine
whether an application for a search warrant is based on
sufficient probable cause. State v. Chippero, 201 N.J. 14, 26
(2009). The “requirement for a search warrant is not a mere
formality,” and the showing necessary to secure one should be
based “not merely [on] belief or suspicion, but [on] underlying
facts or circumstances which would warrant a prudent man in
believing that the law was being violated.” State v.
Novembrino, 105 N.J. 95, 107 (1987) (brackets removed) (quoting
State v. Macri, 39 N.J. 250, 255 (1963)).
A search that is executed pursuant to a warrant is
“presumptively valid,” and a defendant challenging the issuance


11

of that warrant has the burden of proof to establish a lack of
probable cause “or that the search was otherwise unreasonable.”
Watts, 223 N.J. at 513-14 (quoting State v. Keyes, 184 N.J. 541,
554 (2005)). Reviewing courts “accord substantial deference to
the discretionary determination resulting in the issuance of the
[search] warrant.” Jones, 179 N.J. at 388 (quoting Sullivan,
169 N.J. at 211 (alteration in original)). Courts consider the
“totality of the circumstances” and should sustain the validity
of a search only if the finding of probable cause relies on
adequate facts. Id. at 388-89. “[T]he probable cause
determination must be . . . 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.” State v. Marshall, 199 N.J. 602,
611 (2009) (quoting Schneider v. Simonini, 163 N.J. 336, 363
(2000)).
As this Court recognized in Chippero, the analysis into
sufficient probable cause to issue a warrant for an arrest or
for a search involves two separate inquiries. 201 N.J. at 28.
In adopting Professor LaFave’s language, we noted that
[t]wo conclusions necessary to the issuance of the [search] warrant must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. By comparison, the right of arrest


12

arises only when a crime is committed or attempted in the presence of the arresting officer or when the officer has “reasonable grounds to believe” -- sometimes stated “probable cause to believe” -- that a felony has been committed by the person to be arrested. Although it would appear that the conclusions which justify either arrest or the issuance of a search warrant must be supported by evidence of the same degree of probity, it is clear that the conclusions themselves are not identical.

[Ibid. (emphases added) (quoting 2 Wayne R. LaFave, Search & Seizure § 3.1(b) at 9-10 (4th ed. 2004) (footnotes omitted)).]

Ultimately, we determined that “a probable cause
determination to search a home where the suspect lives may be
valid irrespective of whether probable cause to arrest that
particular individual has crystallized.” Id. at 31.
We have upheld the issuance of a search warrant for an
apartment unit based only on an informant’s description of that
unit. Keyes, 184 N.J. at 548-49, 555. There, police conducted
surveillance of a housing project but could not view the
entrance of a suspected drug house where an informant engaged in
a controlled narcotics buy. Id. at 548-49. An informant
provided the description of a “two (2) story red brick apartment
row home . . . . 236 Rosemont Place is a one story apartment
and is on the ground floor.” Id. at 549. The police included
the informant’s statement in their warrant application, which
was granted by the municipal court. Id. at 550. The Appellate


13

Division reversed the trial court’s denial of the motion to
suppress, holding that, among other reasons, police did not
independently verify the informant’s description of the property
and did not actually observe him entering the defendant’s
apartment. Id. at 551.
In Keyes we reversed, holding that a confidential
informant’s tip could serve as the basis for issuing a warrant
provided that there is “substantial evidence in the record to
support the informant’s statements.” Id. at 555. Although
police could not observe the informant enter the home, under the
totality of the circumstances, there was a sufficient basis to
issue the warrant based on the controlled drug buy. Id. at 559
60. We credited the informant’s past contributions to drug sale
arrests, his description of the defendant, the controlled buy,
and the fact that known drug users were entering and exiting the
area as contributing to the totality of the circumstances. Id.
at 558-60. Because police had that corroborating evidence and
the informant’s tip linking the defendant to the apartment, we
held that the warrant had a sufficient basis. Id. at 560.
IV.
With those principles in mind, we now evaluate the factual
basis underpinning the issuing judge’s decision to authorize a
search warrant for Unit 4A. We conclude that, because there


14

were no facts specifically pointing to that unit, the warrant
application failed to establish probable cause.
The State concedes that there are no facts in the warrant
application related to Unit 4A, and the Attorney General agrees
that a warrant authorizing a search of an entire apartment
complex rather than an individual unit would be invalid.
Instead, the State relies on a more general totality-of-the
circumstances argument to justify the issuance of the warrant
here. That argument, however, ignores the obligation of courts
to independently verify an officer’s submissions as to each
aspect of the application that must be supported by probable
cause for a warrant to issue; we cannot infer facts that are not
supported in an affidavit, even something as simple as a missing
address.
No independent documentary evidence, such as a voting
record, utility bill, or lease, was offered to corroborate
Boone’s address. No neighbor, informant, or controlled
transaction demonstrated that Boone lived in Unit 4A. The State
argued that it could have learned Boone’s residence from past
arrests, but at oral argument defense counsel asserted that
Boone’s criminal record indicates an Englewood address. Beyond
that, nothing in the warrant affidavit ties Unit 4A to the
criminal activity alleged elsewhere in the affidavit. Police
failed to provide the issuing judge a basis of knowledge from


15

which to conclude that contraband would be found in the
particular apartment.
The State, in its submission and at oral argument, has
asserted that it presented voluminous evidence based on a month
long investigation that established sufficient probable cause
implicating Boone in drug dealing. That may be sufficient to
issue a warrant to arrest Boone; however, there was nothing in
the affidavit to indicate where Boone lived, how police knew
which apartment was his, or how the apartment was connected to
his drug dealing. As we recognized in Chippero, 201 N.J. at 30,
probable cause to secure an arrest warrant and probable cause to
secure a warrant to search are distinct inquiries. Though
Chippero dealt with a lawfully issued search warrant that
insufficiently stated a basis for probable cause to arrest, the
inverse logic holds true here. Because the warrant application
lacks a basis for knowledge of Boone’s address, the application
in this case is not sufficient to support a warrant to search
Unit 4A. That is true regardless of whether the warrant
application provided a basis for Boone’s arrest because, as
noted, probable cause to arrest a suspect is not synonymous with
probable cause to search that suspect’s apartment. Thus,
although police may arguably have demonstrated in the
application that they had probable cause to believe Boone had
committed a crime, nothing on the face of the warrant


16

application gave rise to probable cause to believe that evidence
of any of Boone’s wrongdoing might be specifically found in Unit
4A rather than any of the other thirty units in the Johnson
Avenue building.
Unlike in Keyes, 184 N.J. at 559-60, where police included
in their warrant affidavit an informant’s description from a
controlled drug buy directing them to a specific apartment unit,
here no evidence points to Boone’s apartment unit. Police
lacked the facts important in Keyes, namely a reliable informant
who could identify where Boone lived. Police here listed
Boone’s apartment unit as the targeted property in a conclusory
manner, without any evidential basis as to how they knew that
specific unit in a thirty-unit building contained contraband.
We recognize that the error here was likely an innocent
oversight by the police. However, because New Jersey does not
recognize an officer’s good faith alone as an exception to the
warrant requirement, Novembrino, 105 N.J. at 120, the error
demands reversal.
Because the State’s warrant application did not include
specific evidence as to why a judge should issue a search
warrant for a specific apartment unit, the search warrant issued
on the basis of that application was invalid. And, because the
police search of Unit 4A was not supported by a valid warrant or
justified by an exception to the warrant requirement, the search


17

was unconstitutional. Therefore, this Court suppresses all
evidence seized from Boone’s apartment. See id. at 148.
We emphasize that judges issuing search warrants must
scrutinize the warrant application and tie specific evidence to
the persons, property, or items the State seeks to search.
Without that specificity and connection to the facts, the
application must fail.

Outcome: Accordingly, we reverse the judgment of the Appellate
Division and vacate Boone’s convictions.

Plaintiff's Experts:

Defendant's Experts:

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