Defendant appeals from the denial of his motion to suppress evidence seized during the search of his residence pursuant to a "knock and announce" warrant. The police officers executing the warrant did not activate their body worn cameras (BWCs) until the moment they forcibly breached the door with a battering ram, and therefore, did not electronically record their compliance with the knock-and-announce rule as required by Attorney General directives. Defendant asks us to create a new rule of law whereby evidence is suppressed when an officer violates an Attorney General directive while executing a knock-and-announce search warrant. In the alternative, defendant contends the trial court should have drawn an adverse inference against the State and, ultimately, erred in finding that police complied with the knock-and-announce rule based on an officer's testimony that was not supported by a BWC recording.
The court agrees with the motion judge that the failure to comply with an Attorney General directive does not constitute a constitutional violation. Defendant cites no authority for the proposition that a violation of an Attorney General directive triggers the exclusionary rule when, as in this instance, the directive imposes a procedural requirement that neither the United States nor New Jersey Constitutions impose. The court declines defendant's invitation to create any such new legal principle.
In reaching that conclusion, the court notes the Legislature did not include a suppression remedy in the statute that now governs police use of BWCs, N.J.S.A. 40A-118.5. That statute incorporates guidelines or directives promulgated by the Attorney General about when BWCs should be activated. See N.J.S.A. 40A:14-1-118.5(c)(1). Instead of requiring suppression, the statute creates a "rebuttable presumption that exculpatory evidence was destroyed or not captured in favor of a defendant" when a law enforcement officer fails to adhere to BWC recording requirements. N.J.S.A. 40A:14-118.5(q).
The court holds this rebuttable presumption applies in suppression hearings and not just trials but concludes it does not apply in this case because the BWC statute applies prospectively and did not take effect until after the present search warrant was executed. The court ultimately concludes there is sufficient credible evidence in the record to support the motion judge's finding that police did in fact knock and announce their identity and intent before using force to execute the search warrant.