STATE OF NEW JERSEY v. WARREN G. HOLLOWAY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0410-04-T40410-04T4F

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WARREN G. HOLLOWAY,

Defendant-Appellant.

____________________________

 

Submitted September 13, 2005 - Decided

Before Judges R. B. Coleman and Seltzer.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

03-05-1083.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alison Perrone,

Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Debra A. Owens, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals an order denying, in part, his motion to suppress evidence seized as the result of a warrantless search incident to a police response to a domestic violence call. Defendant asserts that the police were required to obtain a warrant to enter a room from which a victim of a domestic violence and her assaulter had fled. We disagree and affirm.

On July 25, 2002, two Asbury Park police officers responded to the Lincoln Village Apartment Complex in Asbury Park after receiving a report of possible domestic violence in Building 2, Apartment 324. The caller indicated that guns might be present at the scene. When the officers arrived at the complex, they entered Building 2 and began ascending the stairs. They were met by an individual who reported that Princess Hopewell was being attacked by her boyfriend and that the boyfriend might be armed.

The officers approached an apartment from which crying and screams could be heard and noted that the apartment door was guarded by defendant who, they observed, locked the door. Defendant was ordered to move out of the way and refused. The officers subdued him, removed the apartment key, and entered the apartment. They saw an individual identified as Jeffrey McFarlan emerge from the southeast bedroom and run across the room into which they had entered. The officers subdued McFarlan. As they were doing so, the victim emerged from the same bedroom. She was asked, "if anybody else was in the apartment" and did not respond because "she was just crying." One of the officers then entered the room from which McFarlan and the victim had emerged "to make sure nobody else was behind the door." Although there was, in fact, no one else in the apartment, the officers noticed the controlled dangerous substance which was the subject of the suppression motion. The officers proceeded to look into the southwest bedroom. Although there was no one in that room, they did discover a gun in a drawer. Evidence of the gun was suppressed.

After defendant's motion to suppress the evidence of the controlled dangerous substance was denied he entered a guilty plea. He appeals the denial of his motion, as permitted by R. 3:5-7(d), asserting that the entry into the southeast bedroom without a warrant constitutes an unreasonable search and seizure forbidden by both federal and state constitutions.

The Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution prohibit "unreasonable searches and seizures" by government officials, and our constitutional jurisprudence expresses a preference that those officials secure warrants issued by neutral and detached magistrates before executing a search, particularly of a home. A search conducted without a warrant is presumptively invalid, and the burden falls on the State to demonstrate that the search is justified by one of the "few specifically established and well-delineated exceptions" to the warrant requirement. Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary.

[State v. Frankel, 179 N.J. 586, 597-598 (2004)

(citations omitted).]

The motion judge here based his determination on what has become known as the "emergency aid doctrine." That doctrine requires "(1) the existence of an emergency as viewed objectively (2) a search not motivated by a desire to find evidence and (3) a nexus between the search and the emergency." State v. Scott, 231 N.J. Super. 258, 275 (App. Div. 1989) (Ashbey, J.A.D., concurring and dissenting) (citations omitted), rev'd on dissent, 118 N.J. 406 (1990). Although that doctrine clearly justified the police entrance to the first room in the apartment where they found both the victim and the perpetrator, it does not so easily lend itself to examination of the two bedrooms. Although we have no hesitancy in affirming the trial court determination that exigent circumstances existed to justify that intrusion, we prefer to rest our affirmance, as well, upon the rationale of State v. Smith, 140 N.J. Super. 368, 373 (App. Div.) aff'd, o.b. 75 N.J. 81 (1977).

That case described the exigent circumstances that exist when the police encounter a situation in which it would be dangerous for them to assume no other individuals remain in the dwelling who might cause them harm. Smith involved entry into a home to capture several dangerous men. Once they were captured, the police searched the other rooms of the house, as they did here, to make sure there was no one else in the home that might do them harm. The Smith court concluded "Thus, where police have reason to believe in connection with the arrest of an individual that there may be danger from third parties on the premises, they may then "fan out" and conduct a protective sweep of the area." Ibid. at 372. "A protective or 'fan out' search is justified by the need for the police to make sure no third parties are present who might endanger them." Ibid. 373.

Of course, the police must have some reason to believe an extended search is necessary, but they need not hold an objectively reasonable belief that someone is, in fact, in the other room ready to commit harm. Here, the officers had responded to a domestic violence call, an extremely volatile situation, and found at least two men present. The circumstances were sufficient to validate their effort to make sure that they are not at risk. The officers here did nothing more than to take reasonable steps to ensure their safety. As in Smith, "it would have been preposterous to assume that other confederates might not be in the apartment and would not have the means of resisting the efforts of the police or otherwise imperiling them. Indeed, it would have been 'foolhardy for the [police not to] search for other persons on the premises.'" Ibid. (quoting United States v. Broomfield, 336 F. Supp. 179, 185 (E.D.Mich., 1972)).

 
Affirmed.

(continued)

(continued)

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A-0410-04T4F

September 28, 2005