NJ attorney general issues directive on the execution of warrants
The New Jersey attorney general issued Law Enforcement Directive 2021-12 regarding “no-knock” warrants on Dec. 7, 2021. This new directive went into effect on Dec. 21, 2021, and sets forth procedures that all law enforcement officers must follow when executing “no-knock” warrants and when utilizing “flash-bang” devices. It also sets forth general restrictions with respect to executing a search warrant at a premises.
It is well-settled that the Fourth Amendment of the U.S. Constitution and Article I, Section 7 of the New Jersey Constitution require officers to “knock-and-announce” their presence and purpose before entering a location to execute a warrant. This rule also requires officers to wait a “reasonable” period of time after knocking before they forcibly enter under the authority of the warrant. This rule is intended to protect privacy, decrease the potential for violence and prevent the physical destruction of property during a forcible entry.
Prior to the implementation of the new directive, officers were allowed to seek a court’s approval for a “no-knock” warrant when they had demonstrated a “reasonable, particularized suspicion” that forcible entry is required under framework set by the N.J. Supreme Court. These limited circumstances are:
- to prevent the destruction of evidence;
- to protect the officer’s safety; or
- to effectuate the arrest or seizure of evidence.
New general search warrant restrictions
- All search warrants — with or without a no-knock provision — shall have a default execution timeframe of between 5 a.m. and 10 p.m.
If a warrant needs to be executed outside this time range, the time period must be approved by the court based on facts in the affidavit establishing good cause for the request.
The face of each search warrant must state the time range for execution.
- Prior to the execution of any search warrant that requires a written operations plan, unless exigent circumstances exist, such plan shall include the following:
The reasonable steps taken to timely identify any residents or occupants of the location to be searched, and
Any subdivided living quarters, legal or otherwise, within the specific unit to be searched, and when those steps were taken.
The following information for anyone known or believed to be present at the target premises, if it can be determined with reasonable efforts:
The age and gender, and whether they are connected to the criminal activity detailed to support probable cause;
Cognitive or physical disabilities, if known; and animals.
- Law enforcement should use flash-bang devices sparingly and only with proper safety precautions in place.
Approval must be obtained from the county prosecutor, DCJ director, or their senior legal staff designee, or chief of detectives, when seeking to use this tool.
New “no-knock” warrant restrictions
Although the N.J. Supreme Court has provided three independent justifications for no-knock provisions, the new directive restricts when officers may seek a “no-knock” provision in their warrant affidavit.
- Nothing in the directive limits law enforcement’s ability when executing a knock-and-announce warrant to justify a no-knock entry where “exigent circumstances” arise in the immediate lead-up to the warrant’s execution.
Any such justification must be reasonable and particular to the circumstances of the case.
The warrant’s affiant shall report this entry to the county prosecutor or DCJ director within 24 hours.
- Absent exigent circumstances (as stated above), law enforcement officers are permitted to request authorization from the court for a no-knock warrant provision only under the following circumscribed conditions — narrower than what is permitted under our current law:
Where knocking and announcing will create a reasonable and particularized concern for officer safety or the safety of another person.
A no-knock provision should be sought only where knock-and-announce entry would be inadequate to achieve safe warrant execution.
The county prosecutor, director of the Division of Criminal Justice (DCJ Director), or their senior legal staff designee must approve any warrant that includes a no-knock provision.
- Warrants that include a no-knock provision shall be executed only by tactical teams, or other law enforcement units specifically trained to handle high-risk incidents.
This requirement may be waived by the county prosecutor, DCJ director, or their senior legal staff designee.
May only be waived if, after reasonable inquiry, tactical personnel are unavailable, there is particularized urgency for the execution of the warrant and other properly trained personnel are available to execute the warrant.
- After execution of a no-knock warrant, the executing agency will report back to the approving official (prosecutor or DCJ) with the results of the operation within 48 hours.
If there are issues identified requiring the review, the executing agency shall furnish all relevant body-worn camera footage created during the warrant execution.
- Any injury occurring during the execution of a no-knock warrant, or other use-of-force during such execution, shall be reported to the attorney generals Use of Force Reporting Portal and documented as taking place during a no-knock entry.
This information will be made available to the public.