                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

                                      State v. Chad Bivins (A-23-14) (074374)

Argued October 13, 2015 -- Decided April 20, 2016

LaVECCHIA, J., writing for a unanimous Court.

         In this appeal, the Court considers whether a warrant -- authorizing the search of a residence suspected to
be involved in drug-trafficking activity and “all persons present” -- supported the off-premises search of two
individuals found in a car several houses down the street from the target residence.

          On March 29, 2011, State Police officers planned to execute a no-knock search warrant at 1256 Park
Boulevard in Camden. The warrant permitted the police to search the residence for drugs and related contraband as
well as “all persons present reasonably believed to be connected to said property and investigation.” The affidavit
submitted in support of the search warrant stated that the target location was known to be “open for the sale of
narcotics twenty-four (24) hours a day, seven (7) days a week,” and described the process by which an individual
would obtain drugs from the people in the house. According to State Trooper Matthew Moore, a six-year member
of the State Police, the authorities were aware that people were moving “in and out of the house at all times,” and
that there could have been “a lot more occupants in there than what [the officers] had seen.” Therefore, precautions
were taken in the event there were many people to secure and search once the warrant’s execution began.

         Trooper Moore testified that, “almost immediately” after being told that “entry was being made” into the
residence, he received another communication from an officer at the scene telling him that “[t]wo guys were leaving
the residence” and were “approaching” a grey Pontiac. As Moore drove up to his designated location, he observed a
grey Pontiac about five or six houses down the street from 1256 Park Boulevard. The vehicle was located on the
same block as the target residence and on the same side of the street. As Trooper Moore approached the grey
Pontiac, he saw two individuals seated in the car, later identified as defendant and his cousin. Trooper Moore did
not personally see defendant or his cousin leave 1256 Park Boulevard and enter the grey Pontiac. Moore and his
partner removed the men from the vehicle, searched them, and found thirty-five bags of cocaine on each of them.

         Defendant was indicted for various drug offenses, and later filed a motion to suppress. Moore was the
State’s only witness at the suppression hearing. Defendant also testified, offering a different description of the
events. Defendant stated that he had driven to Camden to pick up his girlfriend, and that he and his cousin were
pulled from their car and arrested within two to five minutes of arriving at that location. Defendant denied having
any cocaine in his possession, but admitted to carrying $220 in cash. After hearing testimony from Trooper Moore
and defendant, the court denied the suppression motion. Notwithstanding that Trooper Moore could not testify to
seeing defendant leave the house, run to the Pontiac, and enter that vehicle, the court concluded that the search was
lawfully conducted pursuant to a warrant because “[m]ost individuals would believe it’s more probable than not”
that defendant and his cousin were the same individuals that were reported as being the persons that “were inside the
house moments before.” Defendant pleaded guilty to third-degree possession of cocaine with the intent to distribute
within 1,000 feet of a school, N.J.S.A. 2C:35-7, and was sentenced to three years of probation.

          The Appellate Division reversed the trial court’s denial of defendant’s suppression motion. 435 N.J. Super.
519, 532 (App. Div. 2014). The panel relied on the United States Supreme Court’s recent decision in Bailey v.
United States, 133 S. Ct. 1031 (2013), in which the Court limited the right to detain individuals, in connection with
the search of a residence, to those persons in the immediate vicinity of the place to be searched. The panel
concluded that the probable cause for the warrant to search the premises here could not support the search of
defendant because the search did not take place in the “immediate vicinity” as described in Bailey. The panel also
identified no independent basis upon which defendant’s search and seizure could rest, and rejected the argument that
Trooper Moore had acted in an objectively reasonable manner.

         The Court granted the State’s petition for certification. 220 N.J. 98 (2014).
HELD: Because the State did not provide adequate proof that the individuals found in a car had been present at the
targeted residence when the warrant was being executed moments before their apprehension, the warrant did not
provide authority for the search of the two off-premises individuals.

1. Defendant challenges a search that was commenced by a warrant permitting the police to search for drugs and
related contraband at 1256 Park Boulevard, as well as “all persons present reasonably believed to be connected to
[the] property.” The type of warrant involved in this matter was first approved in State v. De Simone, 60 N.J. 319
(1972). The De Simone decision explained that the validity of a particular all-persons-present warrant appropriately
turns on whether “there is good reason to suspect or believe that anyone present at the anticipated scene will
probably be a participant [in the criminal operation].” Id. at 322. The Court held in De Simone that, “with regard to
the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general
warrant if the individual is thus identified by physical nexus to the on-going criminal event itself.” Ibid. Most
courts across the country that have considered a particularity challenge to an all-persons-present search warrant have
tracked the compelling rationale for authorizing use of such warrants expressed in De Simone. (pp. 14-15)

2. Defendant claims that the search of his person -- merely because he was sitting in a grey Pontiac located houses
away from the property to be searched -- was beyond the scope of the search warrant issued for 1256 Park
Boulevard. Because he was not found and searched on the premises that were the focus of the warrant, he claims his
search could not possibly have been based on the warrant. That argument proves too much. Nevertheless, the
search cannot be sustained. The State did not provide an adequate evidential basis linking defendant’s presence to
the location for which the all-persons-present search warrant was issued. Accordingly, this must be viewed as a
warrantless search that lacked probable cause to support the search of defendant when he was found in the parked
car. (p. 16)

3. The language of the search warrant bestowed on the executing officers the authority to search all individuals who
were present at the residence covered by the all-persons-present warrant. Practically viewed, that must also
authorize searches of persons seen departing from the scene of the search, provided that their presence at the scene
when the warrant is being executed is proven. The scope of the warrant -- covering searches of persons found at the
location of the criminal activity -- is not limited to the property’s curb or side border. However, there is a hole in the
factual narrative linking defendant to 1256 Park Boulevard: neither the communicating officer nor Trooper Moore
could present any evidentiary support indicating that defendant and his cousin were the same two men that
reportedly were departing the target residence. Because defendant’s presence at 1256 Park Boulevard was not
established, the search of his person fell outside the reach of the all-persons-present warrant. Had the State provided
the necessary factual link to support that defendant had left the premises as the search was unfolding and was found,
shortly thereafter, not far afield in the grey Pontiac, a different result could be supportable based on a reasonable
execution of the all-persons-present warrant. (pp. 16-19)

4. The Court parts company with the Appellate Division to the extent that the panel relied on Bailey, supra, 133 S.
Ct. 1031. Bailey discusses the limited authority to detain an occupant of a premises for which officers had a search
warrant; the case does not circumscribe the authority of officers to search individuals when the executing officers
possess an all-persons-present warrant. Based on the language of the search warrant here, officers were authorized
to search individuals present at the residence, and that could encompass persons fleeing from the execution of the
warrant, provided that their presence at the warrant’s focused location was proven. As already noted, that
connection was not proven, but the outcome of this matter is not and should not be viewed as rooted in Bailey. The
Court’s analysis is constructed from the foundation that De Simone established. (pp. 19-21)

         The judgment of the Appellate Division is AFFIRMED.

        CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE FERNANDEZ-VINA did
not participate.




                                                            2
                                      SUPREME COURT OF NEW JERSEY
                                        A-23 September Term 2014
                                                 074374

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

CHAD BIVINS,

    Defendant-Respondent.


         Argued October 13, 2015 – Decided April 20, 2016

         On certification to the Superior Court,
         Appellate Division, whose opinion is
         reported at 435 N.J. Super. 519 (App. Div.
         2014).

         Jane C. Schuster, Deputy Attorney General,
         argued the cause for appellant (John J.
         Hoffman, Acting Attorney General of New
         Jersey, attorney).

         Lauren S. Michaels, Assistant Deputy Public
         Defender, argued the cause for respondent
         (Joseph E. Krakora, Public Defender,
         attorney).

         Alexander R. Shalom argued the cause for
         amicus curiae American Civil Liberties Union
         of New Jersey Foundation (Edward L. Barocas,
         Legal Director, attorney).


    JUSTICE LaVECCHIA delivered the opinion of the Court.

    In this appeal, we are called on to determine whether a

warrant -- authorizing the search of a residence suspected to be

involved in drug-trafficking activity and “all persons present”


                                1
-- supported the off-premises search of two individuals found in

a car several houses down the street from the target residence.

Because the State did not provide adequate proof that those

individuals had been present at the targeted residence when the

warrant was being executed moments before their apprehension, we

conclude that the warrant did not provide authority for the

search of the two off-premises individuals.

                              I.

    The following facts are derived from the hearing on the

suppression motion filed by defendant, Chad Bivins, one of the

two men searched.

    On March 29, 2011, State Police officers planned to execute

a no-knock search warrant at 1256 Park Boulevard in Camden

sometime between 11:00 p.m. and midnight.   The warrant permitted

the police to search the residence for drugs and related

contraband as well as “all persons present reasonably believed

to be connected to said property and investigation.”   The

affidavit submitted in support of the search warrant stated that

the target location was known to be “open for the sale of

narcotics twenty-four (24) hours a day, seven (7) days a week,”

and described the process by which an individual would obtain

drugs from the people in the house.   The affidavit also

contained information that a confidential informant had observed

two men with weapons inside 1256 Park Boulevard when purchasing

                                2
narcotics at the residence.   According to the affidavit, one

man, who was near the back door of the house when the

confidential informant went to purchase drugs, was observed to

have an “Uzi” style weapon in his hand; another man, from whom

the informant obtained the drugs, had an “AK-47” style rifle

next to his chair.

     On the night that the search warrant was to be executed,

officers planned to enter the house through its back door.

State Trooper Matthew Moore, a six-year member of the State

Police, and his partner were designated to provide security near

the front of the house to ensure that no one entered or exited

the residence during the search.    According to Trooper Moore’s

testimony at the suppression hearing, the State Police were

aware that people were moving “in and out of the house at all

times,” and that there could have been “a lot more occupants in

there than what [the officers] had seen.”   Therefore,

precautions were being taken in the event there were many people

to secure and search once the warrant’s execution began.     Other

officers were positioned around the house to participate in

executing the warrant.

    Trooper Moore testified that, prior to the search, he was

in a car six or seven blocks from 1256 Park Boulevard.

According to his instructions, once the search began, he was to

move to his assigned post, which was a location about “five or

                                3
six houses away” from 1256 Park Boulevard.   Trooper Moore was

responsible for securing the street corner of Park Boulevard and

Princess Avenue while the search warrant was being executed and

for monitoring activity at the home’s front door.

     When Trooper Moore and his partner received the call that

the warrant’s execution had begun, they drove to the corner of

Park Boulevard and Princess Avenue.   Moore testified that,

“almost immediately” after being told that “entry was being

made” into the residence, he received another communication via

radio or cell phone from a fellow officer at the scene telling

him that “[t]wo guys were leaving the residence” and were

“approaching” a grey Pontiac.1   The officer who made the call did

not testify and was not identified.

     As Trooper Moore pulled up to his designated location, he

observed a grey Pontiac about five or six houses down the street

from 1256 Park Boulevard.   The vehicle was located on the same

block as the target residence and on the same side of the

street.   As Trooper Moore approached the grey Pontiac, he saw

two individuals seated in the car, later identified as defendant




1 At various points in his testimony, Trooper Moore referred to
being told “two guys” were, or “somebody” was, leaving the
residence. This discrepancy was not resolved as the
unidentified communicating officer never testified at the
suppression hearing.
                                 4
and his cousin, Saiyd2 Jordan.    Trooper Moore and his partner

removed defendant and Jordan from the vehicle, searched them,

and found thirty-five bags of cocaine on each of them.

According to Trooper Moore’s testimony, he did not personally

see defendant or Jordan leave 1256 Park Boulevard and enter the

grey Pontiac.     Moore was the State’s only witness at the

suppression hearing.

     Defendant also testified at the suppression hearing,

offering a different description of the events on March 29,

2011.   Defendant stated that on that day he and his cousin drove

from Philadelphia to Camden to pick up defendant’s girlfriend,

and that he parked his vehicle on Park Boulevard, near where his

girlfriend lived and waited for her.     Within two to five minutes

of arriving at that location, he and his cousin were pulled from

their car and arrested.     According to defendant, the officers

then brought him and his cousin to a house that he had never

been to before.     Defendant denied having any cocaine in his

possession that evening, but he admitted to carrying $220 in

cash on him.

     Defendant was indicted for third-degree possession of

cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of




2 The Appellate Division referred to co-defendant as Sayid
Jordan; however, we are spelling co-defendant’s name as it
appears in the indictment.
                                   5
cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1)

and 2C:35-5(b)(3); third-degree possession of cocaine with the

intent to distribute within 1,000 feet of a school, N.J.S.A.

2C:35-7; second-degree possession of cocaine with the intent to

distribute within 500 feet of a public housing facility, park,

or building, N.J.S.A. 2C:35-7.1 and 2C:35-5(a)(1); and third-

degree conspiracy to possess cocaine with the intent to

distribute, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), and 2C:35-5(b)(3).

     In the pretrial proceeding conducted on defendant’s motion

to suppress, the motion court determined that defendant had to

prove that the search of his person was unconstitutional

“because there was a Search Warrant . . . and most important,

because the State’s theory is, is that the search was pursuant

to the explicit authority in that Warrant.”   Accordingly, the

court placed on defendant “the initial burden of production . . .

not persuasion, of producing some evidence” to show that the

search fell “outside of the parameters of the Warrant.”    If

defendant met that burden, according to the court, then the

“burden of persuasion [would] shift[] to the State.”

     After hearing testimony from Trooper Moore and defendant,

but before making its determination, the court addressed

credibility.   The court found Trooper Moore “highly credible.”

As for defendant, the court stated:



                                 6
          [W]hile [defendant] made a good witness, he
          lost me when he indicated he had no cocaine on
          him at all, he denied he had the thirty-five
          packets of cocaine, he denied he had any of
          the cash.3 So while I was with him to some
          extent when he said that he was texting his
          girlfriend and he had no involvement in it,
          and the lack of the State’s evidence with
          eyewitness     testimony    connecting     him
          specifically from the house to the vehicle,
          remember there’s only hearsay that connects
          [defendant] from the house to the vehicle, he
          lost me when he testified he had no cocaine on
          him.

          The court does not believe that the State
          Police would simply lie about cocaine being on
          people.

     In its analysis, the court explained that if the search

fell under the purview of the search warrant, then it was

lawful; however, if the search fell outside of the warrant’s

scope, then the search was unlawful because the State failed to

present any independent basis to justify the search.   The court

reasoned that, when broken down into its “simplest parts,” the

case consists of “an allegation that two people ran from the

scene of a house where allegedly there was criminal activity,

. . . they ran to a specified car, a grey Pontiac, [and] moments

later two individuals were found inside the grey Pontiac.”

Notwithstanding that Trooper Moore could not testify to seeing

defendant leave the house, run to the Pontiac, and enter that




3 Contrary to this finding, defendant admitted that he had $220
on his person at the time of his arrest.
                                7
vehicle, the court concluded that the search was lawfully

conducted pursuant to a warrant because “[m]ost individuals

would believe it’s more probable than not” that defendant and

his cousin were the same individuals that were reported to

Trooper Moore in the second call as being the persons that “were

inside the house moments before.”      Thus, the court denied the

suppression motion.

    Defendant thereafter pleaded guilty to third-degree

possession of cocaine with the intent to distribute within 1,000

feet of a school, N.J.S.A. 2C:35-7.      He was sentenced to three

years of probation.

    The Appellate Division reversed the trial court’s denial of

defendant’s suppression motion.       State v. Bivins, 435 N.J.

Super. 519, 532 (App. Div. 2014).      The panel framed the issue as

“whether the scope of the permissible area and persons to be

searched, pursuant to a search warrant, extends to the location

where defendant . . . [was] found, seated in a Pontiac, parked

five or six houses away from the premises where a search warrant

was being executed.”   Id. at 521-22.     In resolving that issue,

the panel relied on the United States Supreme Court’s recent

decision in Bailey v. United States, __ U.S. __, 133 S. Ct.

1031, 185 L. Ed. 2d 19 (2013), in which the Court limited the

right to detain individuals, in connection with the search of a

residence, to those persons in the immediate vicinity of the

                                  8
place to be searched.   Id. at 522.   The panel concluded that the

probable cause for the warrant to search the premises here could

not support the search of defendant because the search did not

take place in the “immediate vicinity” as described in Bailey.

Id. at 529.

    In support of its decision, the panel noted that Trooper

Moore did not personally observe the two men leaving the target

residence or entering the grey Pontiac; rather, he simply found

defendant and Jordan sitting in the Pontiac, which was parked

five or six houses away from the target residence.     Id. at 528.

Additionally, the panel emphasized that all parties agreed that

the affidavit in support of the search warrant did not

specifically identify defendant, Jordan, or the grey Pontiac.

Ibid.   And, although the panel acknowledged that “defendant was

in closer proximity to the residence being searched than the

petitioner in Bailey, who was one mile away from the scene of

the search, he was spatially still ‘beyond the immediate

vicinity of the premises to be searched.’”    Ibid. (quoting

Bailey, supra, __ U.S. at __, 133 S. Ct. at 1041, 185 L. Ed. 2d

at 32).

    Moreover, the panel identified no independent basis upon

which defendant’s search and seizure could rest.     Id. at 530-31.

The officers did not observe defendant engaging in any

suspicious, let alone illegal, activity.     Ibid.   The panel

                                 9
further noted that “there is no indication that either defendant

or Jordan were aware the premises were being searched.”      Id. at

530.

       Finally, the panel rejected the argument that Trooper Moore

had acted in an objectively reasonable manner.      Id. at 531.

According to the panel, the information conveyed to Trooper

Moore -- that two men were leaving the target residence and

approaching a Pontiac -- was insufficient to demonstrate

“whether the person(s) seen approaching the grey Pontiac

actually entered it.”    Id. at 528.    The panel concluded that,

given the information that Trooper Moore had received, “it may

have been reasonable to detain defendant, but it was not

objectively reasonable to seize him and conduct the full search

that followed.”   Id. at 531-32.

       Based on those reasons, the panel reversed the denial of

defendant’s suppression motion.     Id. at 532.   We granted the

State’s petition for certification.      State v. Bivins, 220 N.J.

98 (2014).    We also granted amicus curiae status to the American

Civil Liberties Union of New Jersey (ACLU-NJ).

                                II.

       The State argues that the Appellate Division’s application

of Bailey was in error because here the search warrant

authorized not just the search of premises but also the search

of “all persons present reasonably believed to be connected to

                                   10
said property and investigation.”      The State contends that “the

same probable-cause finding that justified a search of the ‘two

guys’ at the property did not dissipate merely because they were

beyond the curtilage of the property.”     To hold otherwise, the

State maintains, would encourage flight:      if the subjects of a

warrant can only manage to get beyond the property’s curb line

before being apprehended, then they earn the windfall of

suppression.

    Defendant emphasizes that the terms of the warrant

permitted a search only of those present at 1256 Park.     An off-

premises search, according to defendant, especially one based on

only a vague notion connecting the occupants of a nearby car

with the premises, reaches “far beyond both the language of the

warrant itself, and the justification underlying the

authorization to search unnamed individuals based on their

presence.”     Moreover, defendant contends that the trial court

erred by placing a burden on defendant in the suppression

hearing, forcing him to prove a negative.      Last, defendant

challenges the sufficiency of the trial court’s factual finding

that defendant was present at 1256 Park when police began

executing the warrant.    Because there was no testimony that

identified defendant as the person leaving the house, defendant

argues that the trial court’s finding lacked substantial

credible evidence.

                                  11
    The ACLU-NJ emphasizes that the State should bear the

burden of proof and production when challenging a search that

occurs outside of the location specified in a search warrant.

The ACLU-NJ also bolsters the arguments of defendant, contending

that there was no probable cause to believe that defendant had

been at the location described in the warrant because (1) there

was no description of the people leaving the house that would

have indicated that defendant and Jordan resembled the

unidentified individuals, and (2) evidence that someone is

“approaching” a vehicle does not mean that the person actually

entered it.

                               III.

                                A.

    The Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution offer

protection against “unreasonable searches and seizures” carried

out by government officials.   U.S. Const. amend. IV; N.J. Const.

art. I, ¶ 7.   “[O]ur constitutional jurisprudence expresses a

preference that . . . officials secure warrants issued by

neutral and detached magistrates before executing a search,

particularly of a home.”   State v. Frankel, 179 N.J. 586, 597-98

(citations omitted), cert. denied, 543 U.S. 876, 125 S. Ct. 108,

160 L. Ed. 2d 128 (2004), overruled in part by State v. Edmonds,

211 N.J. 117, 131-32 (2012).   Fundamental to both the federal

                                12
and state right is the idea that “[a] search conducted without a

warrant is presumptively invalid.”      Id. at 598.   Thus, the State

has the burden of showing that one of the “judicially cognizable

exception[s] to the warrant requirement” applies to the

warrantless search.   State v. Valencia, 93 N.J. 126, 133 (1983);

see also State v. Brown, 132 N.J. Super. 180, 185 (App. Div.

1975) (“It is well settled that in warrantless search cases the

ultimate burden of proof rests upon the State to justify the

propriety of its actions.”).

    Conversely, when a search is based on a warrant, the search

is presumptively valid.    Valencia, supra, 93 N.J. at 133.     When

contesting the search at a suppression hearing, the defendant

must prove that the warrant was based on insufficient probable

cause to justify its issuance or that the execution of the

search was unreasonable.   Ibid.    “When a search or seizure is

made pursuant to a warrant, 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

(2000) (citations omitted), cert. denied, 531 U.S. 1146, 121 S.

Ct. 1083, 148 L. Ed. 2d 959 (2001).     A particularity requirement

governs the scope of search warrants, mandating that the warrant

specifically describe the search location so that an officer can

                                   13
reasonably “ascertain and identify the place intended” to be

searched, as authorized by the magistrate’s probable cause

finding.   State v. Marshall, 199 N.J. 602, 611 (2009) (quoting

Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416,

69 L. Ed. 757, 760 (1925)).

                               B.

    Defendant challenges a search that was commenced by a

warrant permitting the police to search for drugs and related

contraband at 1256 Park Boulevard, as well as “all persons

present reasonably believed to be connected to [the] property.”

    State v. De Simone, 60 N.J. 319 (1972), first approved of

the type of warrant involved in this matter.    Chief Justice

Weintraub, the author of De Simone, dissected the argument that

all-persons-present warrants should be universally condemned as

blanket or general warrants because such warrants authorize the

search of an indeterminate number of people without naming

persons specifically.   Id. at 321.   The De Simone decision

explained that the validity of a particular all-persons-present

warrant appropriately turns on whether “there is good reason to

suspect or believe that anyone present at the anticipated scene

will probably be a participant [in the criminal operation].”

Id. at 322.

           On principle, the sufficiency of a warrant to
           search persons identified only by their
           presence at a specified place should depend

                                14
         upon the facts. A showing that lottery slips
         are sold in a department store or an
         industrial plant obviously would not justify
         a warrant to search every person on the
         premises, for there would be no probable cause
         to   believe    that   everyone    there   was
         participating in the illegal operation.     On
         the other hand, a showing that a dice game is
         operated in a manhole or in a barn should
         suffice, for the reason that the place is so
         limited and the illegal operation so overt
         that it is likely that everyone present is a
         party to the offense.

         [Id. at 321-22.]

    Thus, the location “furnishes not only probable cause but

also a designation of the persons to be searched which

functionally is as precise as a dimensional portrait of them.”

Id. at 322.   The Court held in De Simone that, “with regard to

the Fourth Amendment demand for specificity as to the subject to

be searched, there is none of the vice of a general warrant if

the individual is thus identified by physical nexus to the on-

going criminal event itself.”   Ibid.

    Most courts across the country that have considered a

particularity challenge to an all-persons-present search warrant

have tracked the compelling rationale for authorizing use of

such warrants expressed in De Simone.   See Wayne R. LeFave,

Search and Seizure:   A Treatise on the Fourth Amendment, §4.5(e)

(5th ed. 2012) (“Most of the decisions either upholding or

striking down particular warrants of the De[]Simone variety



                                15
conform, at least in terms of the result reached, to the

analysis of that case.”).

                               IV.

                                A.

    In this matter, defendant claims that the search of his

person –- merely because he was sitting in a grey Pontiac

located houses away from the property to be searched -- was

beyond the scope of the search warrant issued for 1256 Park

Boulevard.   Because he was not found and searched on the

premises that were the focus of the warrant, he claims his

search could not possibly have been based on the warrant.      That

argument proves too much.   Nevertheless, we agree with the

Appellate Division that this search cannot be sustained.      We

conclude that the State did not provide an adequate evidential

basis linking defendant’s presence to the location for which the

all-persons-present search warrant was issued.   Accordingly,

this must be viewed as a warrantless search that lacked probable

cause to support the search of defendant when he was found in

the parked car.

    To begin, the language of the search warrant bestowed on

the executing officers the authority to search all individuals

who were present at the residence covered by the all-persons-

present warrant.   Practically viewed, that must also authorize

searches of persons seen departing from the scene of the search,

                                16
provided that their presence at the scene when the warrant is

being executed is proven.   The particularity requirement for

such warrants depends on presence at a location where criminal

activity is reasonably believed to involve all persons present.

See De Simone, supra, 60 N.J. at 321-22.   The scope of the

warrant -- covering searches of persons found at the location of

the criminal activity –- is not limited to the property’s curb

or side border.   However, there is a hole in the factual

narrative linking defendant to 1256 Park Boulevard, a gap that

proves fatal to the State’s argument that it had the right under

the all-persons-present warrant to search defendant.

    Trooper Moore received a communication from another officer

who was executing the search warrant at 1256 Park Boulevard that

two men were leaving the house and approaching a grey Pontiac.

But the communicating officer did not testify at the suppression

hearing, and nothing in the record indicates that the

communicating officer actually saw the two men enter the

Pontiac.   By the time Trooper Moore arrived at his designated

post in the vicinity of the premises to be searched, defendant

and his cousin were seated inside a grey Pontiac.   However,

Trooper Moore did not see them leave 1256 Park Boulevard and

enter the Pontiac.   Moore –- the lone testifying officer at the

suppression hearing -- could not provide the evidential links

necessary to support the conclusion that defendant and his

                                17
cousin, seated in the car, had been among the persons present in

the premises authorized to be searched.   That gap in observation

cannot be overcome by an inference that these two men “must have

been” the two men who, according to the communicating officer

radioing Trooper Moore, were leaving by the front door of the

residence as the search began.   The gap leaves open the

reasonable possibility that defendant may not have been a person

present at the property subject to the search warrant authorized

for 1256 Park Boulevard.

    Our decision focuses, as it must, on the evidence presented

at the suppression hearing.   Had the communicating officer seen

the two men leave the target residence and enter the grey

Pontiac, his statement to that effect to Trooper Moore, although

hearsay, would have been admissible through Moore’s testimony at

the suppression hearing.   Indeed, “hearsay is permissible in

suppression hearings, subject to N.J.R.E. 104(a).”    State v.

Watts, 223 N.J. 503, 519 n.4 (2015); see also State v. Gibson,

429 N.J. Super. 456, 466 (App. Div. 2013) (stating that

suppression hearing “may include evidence inadmissible in the

trial on the merits,” and that “[t]he Rules of Evidence do not

apply in the suppression hearing, except as to N.J.R.E. 403 and

claims of privilege” (citing N.J.R.E. 104(a))), rev’d on other

grounds, 219 N.J. 227 (2014).    However, a key evidential link is

missing in this case:   neither the communicating officer nor

                                 18
Trooper Moore could present any evidentiary support indicating

that defendant and Jordan were the same two men that reportedly

were departing the target residence.

    Because defendant’s presence at 1256 Park Boulevard was not

established, we hold that the search of his person fell outside

the reach of the all-persons-present warrant.      See De Simone,

supra, 60 N.J. at 322.    A different holding would be contrary to

De Simone’s principles.    We will not stretch De Simone’s careful

support for satisfaction of the particularity requirement to

“fix” the evidential problem created by the inadequate record in

this case.   This defendant simply was not sufficiently tied to

the location that provided probable cause for a search based on

the warrant.   Importantly, our holding is not based on the mere

fact that the search took place off of, but not far from, the

property covered by the warrant.      Had the State provided the

necessary factual link to support that defendant had left the

premises as the search was unfolding and was found, shortly

thereafter, not far afield in the grey Pontiac, a different

result could be supportable based on a reasonable execution of

the all-persons-present warrant.

                                 B.

    We part company with the Appellate Division to the extent

that it relied on Bailey, supra, __ U.S. __, 133 S. Ct. 1031,

185 L. Ed. 2d 19.

                                 19
    In Bailey, police officers obtained a warrant to search a

residence for a handgun and used that search warrant as a basis

for justifying the detention and pat-down search of two men who

were observed leaving the target residence, but who were not

stopped and searched until they were about one mile away.     Id.

at __, 133 S. Ct. at 1036, 185 L. Ed. 2d at 26-27.   The United

States Supreme Court held that, although Michigan v. Summers,

452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), permits

officers to detain occupants of a residence during the execution

of a search warrant for the premises, even absent individualized

suspicion, that rule was necessarily circumscribed by a “spatial

constraint” to the premises to be searched.   Bailey, supra, __

U.S. at __, 133 S. Ct. at 1041-42, 185 L. Ed. 2d at 33.     As the

Court explained, “[o]nce an individual has left the immediate

vicinity of a premises to be searched, . . . detentions must be

justified by some other rationale.”   Id. at __, 133 S. Ct. at

1043, 185 L. Ed. 2d at 34.

    In the present matter, the Appellate Division utilized

Bailey’s rationale when analyzing the search of defendant.     In

applying Bailey to the facts of this case, the panel determined

that defendant and his co-defendant, who were searched when they

were approximately six houses away from the residence where the

search warrant was being executed, were beyond the spatial

constraint of the “immediate vicinity of the premises.”     Bivins,

                               20
supra, 435 N.J. Super. at 528 (citation omitted).    We disapprove

of the part of the panel’s reasoning that relies on Bailey

because it is an inapt fit for the present matter.

    The search warrant in Bailey contained no language

permitting officers to search anyone present at the residence;

thus, the officers were able to detain an individual at the

residence only for the purposes of protecting officer safety,

facilitating the completion of the search, and preventing

flight.   See Bailey, supra, __ U.S. at __, 133 S. Ct. at 1038,

185 L. Ed. 2d at 29.    Bailey discusses the limited authority to

detain an occupant of a premises for which officers had a search

warrant; the case does not circumscribe the authority of

officers to search individuals when the executing officers

possess an all-persons-present warrant.    Based on the language

of the search warrant here, officers were authorized to search

individuals present at the residence, and that could encompass

persons fleeing from the execution of the warrant, provided that

their presence at the warrant’s focused location was proven.       As

already noted, that connection was not proven, but the outcome

of this matter is not and should not be viewed as rooted in

Bailey.

                                V.

In sum, our analysis is constructed from the foundation that De

Simone established.    With De Simone as our guide, we conclude

                                 21
that the State did not demonstrate that the all-persons-present

search warrant for 1256 Park Boulevard covered the search of

defendant, who was found several houses away seated in a parked

car.   The proofs did not provide the factual links necessary to

demonstrate that defendant had been present at the unfolding

scene of the warrant’s execution, which could have made him

subject to search under the all-persons-present warrant.     The

inferences relied on to supply missing links in the narrative do

not satisfy the particularity requirement in this setting.

The judgment of the Appellate Division is affirmed.



     CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
LaVECCHIA’s opinion. JUSTICE FERNANDEZ-VINA did not
participate.




                                22
                  SUPREME COURT OF NEW JERSEY

NO.       A-23                                     SEPTEMBER TERM 2014

ON CERTIFICATION TO             Appellate Division, Superior Court



STATE OF NEW JERSEY,

      Plaintiff-Appellant,

                 v.

CHAD BIVINS,

      Defendant-Respondent.




DECIDED                April 20, 2016
                  Chief Justice Rabner                          PRESIDING
OPINION BY            Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


CHECKLIST                                  AFFIRMED
CHIEF JUSTICE RABNER                             X
JUSTICE LaVECCHIA                                X
JUSTICE ALBIN                                     X
JUSTICE PATTERSON                                 X
JUSTICE FERNANDEZ-VINA                   --------------------
JUSTICE SOLOMON                                  X
JUDGE CUFF (t/a)                                 X
TOTALS                                            6
