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Decided September 20, 2006
ALBIN, J., writing for a majority of the Court.
After a search of his home resulted in the seizure of marijuana and growing equipment, defendant Keith R. Domicz was indicted on charges of operating a controlled dangerous substance (CDS) production facility, possession with intent to distribute a CDS (marijuana), and possession of CDS (marijuana and methamphetamine).
Six months before defendant�s home was searched, Detective William Peacock of the New Jersey State Police Marijuana Eradication Unit learned that defendant had received specialized horticultural equipment commonly used to grow marijuana. Pursuant to a grand jury subpoena, the police obtained electrical use records of defendant�s residence. Those records did not provide any useful investigative information. Two months later, without a warrant, Detective Peacock conducted a thermal scan of defendant�s home to determine whether there was an unusual amount of heat, which might indicate the use of specialized marijuana growth equipment. The thermal scan also did not provide any leads.
At the suppression hearing, the State and defendant presented conflicting accounts of what occurred on the day of the search. According to the State, five detectives dressed in plain clothes went to defendant�s home. Three detectives went to the front door. Along with another officer, Detective Peacock went to the back door, which he believed was used as an entrance because of the location of the cars in the driveway. When defendant answered the front door, those two detectives joined the others at the front of the house. One detective identified himself and told defendant, �We need to speak to you.� Defendant replied, �Come on in, get out of the rain.� When they entered, Detective Peacock noticed a strong odor of raw marijuana. He introduced himself as a member of the State Police Marijuana Eradication Unit and said, �We�re here to request permission to search your residence.� He presented a consent-to-search form, which he read and explained to defendant. At one point, defendant put his head down and said, �I have 40 plants in the basement.� Detective Peacock responded, �We�ll get to that in a minute,� and finished reading the consent form, while defendant listened and looked at the form. Detective Peacock advised defendant that the right to refuse to give consent to the search. The other officers did not surround or intimidate defendant. Defendant authorized the search by signing the form under a statement that read: �I have knowingly and voluntarily given my consent� and �fully understand that I have the right to refuse giving my consent to search.� The detectives then searched the house and found nearly 100 plants in the basement and growing next to the garage, an apparatus for cultivating marijuana plants, bags of processed marijuana, a digital scale, and a bag of methamphetamine.
Defendant�s version of the events was very different. He testified that three detectives came to his front door, where the �head guy� showed a badge and said he had a search warrant. Without permission, they came into the house and let the two other officers in the back door. Defendant was handcuffed, told to sit on a couch, and read his rights. An hour later, the detectives gave defendant a form to sign, but they did not read it or explain it to him.
At the hearing, the trial court did not allow testimony from a polygraph examiner who would have testified for the defense about the results of a polygraph examination taken by defendant. The trial court denied defendant�s motion to suppress the evidence seized from his home. The court accepted Detective Peacock�s testimony and rejected defendant�s testimony as unbelievable, and determined that the State had proven by clear and convincing evidence that defendant knowingly and voluntarily consented to the search. Defendant pled guilty to operating a CDS production facility. He was sentenced to 10 years in prison with a 40-month period of parole ineligibility. The remaining charges were dropped.
The Appellate Division, in an opinion published at 377 N.J. Super. 515 (2005), reversed the suppression order, vacated defendant�s conviction, and remanded for a new suppression hearing. The panel found that the warrantless thermal scan of defendant�s home and warrantless seizure of his utility records were unconstitutional, may have �tainted� defendant�s consent, and could cast doubt upon the credibility of Detective�s Peacock�s version of events. Although not previously raised by defendant, the panel also held that police officers must have a reasonable and articulable suspicion that criminal activity is occurring inside a residence before requesting consent to search the home. Finally, the panel would have allowed testimony about the polygraph test.
The Supreme Court granted certification. 185 N.J. 268 (2005). The Court also granted the motion of the Criminal Defense Lawyers of New Jersey to participate as amicus curiae.
HELD: Under the circumstances, the warrantless thermal scan and seizure of electricity records did not constitute prior unlawful conduct that could have tainted the later search. Grand jury subpoena procedures adequately protect any privacy interest in utility records. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence.
1. The record does not support a conclusion that the detectives engaged in prior unlawful conduct that tainted the consent search. At the time Detective Peacock conducted the thermal scan, a majority of federal courts had ruled that a thermal scan was not a �search� requiring a warrant under the Fourth Amendment. The detective�s failure to predict that one year later the United State Supreme Court would reach the opposite conclusion cannot be considered part of a pattern of illegality or used to impair his credibility. (pp. 12-15)
2. A grand jury subpoena is sufficient to satisfy whatever privacy interest defendant had in his electricity records under Article I, Paragraph 7 of the State Constitution. The Court previously held that grand jury subpoena procedures sufficiently protect citizens� reasonable expectation of privacy in bank records. There is no persuasive reason why utility records should be given more protection than bank records, which expose more about a person�s private life. (pp. 15-20)
3. The area around a home to which the public is welcome, such as a walkway leading to an entrance, is not given Fourth Amendment protection because the resident has given implied consent to visitors to approach the home that way. When a law enforcement officer walks to a back door of a home to make contact with a resident and, as the trial court found in this case, reasonably believes that the door is used by visitors, there is no unconstitutional trespass. (pp. 21-23)
4. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence. The Court does not extend its decision in State v. Carty, 170 N.J. 632 (2002), which requires a reasonable and articulable suspicion of criminal wrongdoing before seeking consent to search a lawfully stopped motor vehicle, to the search of a home. Carty addressed concerns about racial profiling on New Jersey highways and widespread abuse of consent searches of vehicles stopped for minor traffic violations. There is no claim here that there is an abuse of consent searches of homes or that minority residents are disproportionately targeted by such searches. Also, a person in his home is under less compulsion to consent to a search than a motorist on the highway after a motor vehicle stop. (pp. 24-33)
5. The trial court correctly rejected defendant�s attempt to introduce testimony about the results of an unstipulated private polygraph test he took in his lawyer�s office eighteen months after the search of his home. The Court declines to extend its decision in State v. McDavitt, 62 N.J. 36 (1972) (holding that results of polygraph examination are admissible only �in a criminal case when the State and defendant enter into a stipulation to have defendant submit to a polygraph test�) to unstipulated polygraph examinations, even in a suppression hearing presided over by a judge. Judges are capable of making credibility decisions in the traditional way, by assessing the testimony and demeanor of the witness. (pp. 33-40)
The judgment of the Appellate Division is REVERSED and the judgment of conviction is REINSTATED.
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