STATE OF NEW JERSEY v. JOHN STREKIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2600-04T12600-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN W. STREKIS,

Defendant-Appellant.

______________________________

 

Submitted March 20, 2006 - Decided April 24, 2006

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Burlington County, Law Division, Docket No. 68-04.

Richard Kelly, attorney for appellant.

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Louis F. D'Onofrio, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, John Strekis, was charged in the Medford Township Municipal Court with a disorderly person's offense, possession of under fifty grams of marijuana, N.J.S.A. 2C:35-10a(4). Following a denial of his motion to suppress the evidence seized, defendant entered a conditional plea of guilty, reserving his right to seek a trial de novo and his concomitant right to raise anew his motion to suppress. Defendant was sentenced to a six-month suspension of driving privileges and assessed appropriate fines, costs, and penalties. Defendant's sentence was stayed pending the disposition of his trial de novo.

Prior to the trial de novo in the Law Division, defendant renewed his motion to suppress the evidence. On December 23, 2004, the trial judge denied the motion, and imposed the same sentence originally imposed in the municipal court. Defendant appeals, and we reverse.

The undisputed facts are as follows. On December 15, 2003, at approximately 1:55 p.m., the Medford Township Police Department received a telephone communication reporting a possible burglary in progress at 25 Mill Street. The single-family residence is a two-story structure owned by Lynn Stokking (Stokking), defendant's mother. Defendant resided in a bedroom located on the first floor of the dwelling. Upon arrival, nine uniformed police officers, having established a perimeter around the residence, entered and swept the dwelling, determining that neither victims nor suspects were present. After other officers had entered the residence, Detective Sergeant Lange arrived at the scene and observed visible signs of a break-in. "The house itself [was] a bit in disarray. The rear door had been damaged. Also[,] a window in one of the front bedrooms was . . . ajar . . . ." As Lange entered the first floor, he was advised by two uniformed officers that they had swept and cleared that area, and did not find anything. Lange remained in the dwelling, and proceeded to conduct an additional sweep of the first floor of the premises while other detectives processed the premises looking for evidence concerning the burglary.

At the time of the search, the premises were secure, with police officers both inside and outside the dwelling. Upon entering the first floor bedroom, Lange detected a strong odor of raw marijuana, and commenced looking for its source. Lange observed that one wall was partially covered by a large tapestry, and that one corner of the tapestry was sticking into a hole in the wall behind it. Although the record is silent as to the width and length of the hole, Lange described its depth as two and one-half inches between the interior wall in the bedroom and the exterior wall of the house. The space between the wall studs was sixteen-inches, and the hole itself was located approximately three or four feet from the floor. Concerning the hole, Lange conceded: 1) that it would have been impossible for anyone to have hidden in the hole behind the wall; and 2) because of the height the hole was off the floor that anything behind the wall would not have been in plain view to someone standing in the bedroom. After looking into the hole behind the tapestry, Detective D'Averso found a backpack, pulled it out from behind the wall, but refrained from either opening it or looking inside pursuant to Lange's directions.

In the interim, Stokking had returned to the dwelling. Lange approached Stokking, and "asked her for . . . consent to seize the bag[,] . . . but not search it." Upon identifying the bag as her son's, a form was filled out and signed by Stokking consenting to its seizure. After obtaining Stokking's consent, "the backpack [was] secured as evidence and taken back to the Medford Township Police Department," and Stokking was requested to have defendant contact the police upon his return home.

Upon arrival at the police department, defendant was advised of his Miranda rights, and "informed, obviously, of the burglary at his residence and that we had taken a black book bag from inside of it." After defendant consented to a search of his backpack, it was opened, disclosing that it contained marijuana.

Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J 599, 615 (1997) (quoting State v. Johnson, 42 N.J. 146, 162 (1964) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. 162. (internal citations omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). After a careful review of the record on appeal, we conclude that the Law Division judge erred in failing to suppress the evidence seized.

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals against unreasonable search and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). "[O]ur constitutional jurisprudence expresses a preference that [police officers] 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 (2004). A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. DiLoreto, 180 N.J. 264, 275-77 (2004). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Frankel, supra, 179 N.J. at 598.

The Law Division judge, after giving deference to the municipal court judge's credibility determinations, denied the motion to suppress, concluding that the police officers who detected the odor of marijuana while lawfully upon the premises, had the authority to search for the contraband because "[t]he plain smell doctrine . . . is corollary to the plain view doctrine -- [that] gives the officers the ability, indeed the responsibility, to continue." Concerning the search, the trial judge stated "that [Detective Lange] had the responsibility to locate the source of the smell of marijuana. Particularly, where as here, he identified the smell as strong. Particularly, where as here, there was a hole in the wall looking somewhat suspicious with a backpack in it." The trial judge also determined that the police lawfully seized the backpack pursuant to the consent of Stokking, the homeowner.

On appeal, defendant presents the following issues for our consideration:

POINT I.

THE LAW ACCORDS A CITIZEN'S HOME THE HIGHEST PROTECTION AGAINST WARRANTLESS SEARCHES AND SEIZURES, AND A WARRANTLESS SEARCH THEREOF IS PRESUMPTIVELY INVALID ESPECIALLY WHERE, AS HERE, ABSOLUTELY NO EXIGENT CIRCUMSTANCES EXIST TO JUSTIFY THE WARRANTLESS SEARCH.

POINT II.

JUST AS THE SEARCH OF THE WALL OPENING IN DEFENDANT'S ROOM CANNOT BE JUSTIFIED UNDER THE PRECEPT OF "EXIGENT CIRCUMSTANCES," NEITHER CAN IT BE JUSTIFIED UNDER THE DOCTRINE OF "PLAIN VIEW."

POINT III.

THE "CONSENT TO SEARCH" WHICH POLICE OBTAINED FROM THE HOMEOWNER WAS VOID AB INITIO BECAUSE, AMONG OTHER THINGS, WAS OBTAINED AFTER POLICE HAD ALREADY SEARCHED THE PREMISES AND SEIZED ITEMS THEREIN.

Defendant first argues that "no exigent circumstances exist[ed] to justify the warrantless search." The State counters in support of the search that Detective Lange's "smell" of marijuana was equivalent to a police officer's "plain view" of marijuana when lawfully upon private premises. Alternatively, the State argues that Detective Lange had the right to conduct the search after he smelled marijuana, the same as a police officer may do of an automobile after a lawful stop when the odor of marijuana is detected.

It is not disputed that the police had the lawful right to enter the home. The police responded, having received a telephone communication of a "burglary in progress" at 25 Mill Street. Once the police arrived at the residence, they observed evidence that a burglary was either in progress or had just occurred. The police not only had the right but also the duty to enter the premises to ascertain whether any victims or perpetrators of the burglary were inside the dwelling, and if any were in need of assistance. State v. Boud, 240 N.J. Super. 171, 180 (App. Div. 1990). The entry by the police into the dwelling without a warrant falls under the umbrella of the emergency aid exception, which is "derived from the common sense understanding that exigent circumstances may require public safety officials, such as the police, firefighters or paramedics, to enter a dwelling without a warrant for the purpose of protecting or preserving life, or preventing serious injury." Frankel, supra, 179 N.J. at 598. See Boud, supra, 171 N.J. Super. at 180; see also State v. Faretra, 330 N.J. Super. 527, 531-32 (App. Div. 2000) (holding that the police have the authority "to enter private premises when the police reasonably believe that a crime is taking place or has just taken place, for the limited purpose of rendering aid to a possible victim of the crime or seeking or apprehending the perpetrators or taking any necessary steps to secure the premises").

Detective Lange, while lawfully upon the premises, detected an odor of marijuana emanating from the first floor bedroom. The bedroom had already been swept by other police officers looking for evidence of the burglary. Detective Lange ceased looking for evidence concerning the burglary to search for the source of the odor of marijuana. The State argues that because Detective Lange had probable cause to be upon the premises, once he detected an odor of marijuana, he had a right to conduct a general search for the controlled dangerous substance because his smelling marijuana was the equivalent to having a plain view of the contraband. We disagree.

Probable cause to enter the premises does not give rise to conduct a general search of the entire premises, for purposes other than those which fall under the umbrella of the exigent circumstances that authorized the entry into the premises. "The scope of the search under the emergency aid exception is limited to the reasons and objectives that prompted the search in the first place." Frankel, supra, 179 N.J. at 599. "A police officer entering a home looking for a person injured or in danger may not expand the scope of the search by peering into drawers, cupboards, or wastepaper baskets." Ibid. In other words, "there must be a reasonable nexus between the emergency and the area or places to be searched." Id. at 600. "However, evidence observed in plain view by a public safety official who was lawfully on the premises and is not exceeding the scope of the search will be admissible." Id. at 599-600.

The police had probable cause to be upon the premises, and had probable cause to apply for a search warrant from a neutral judge. "Probable cause is a well[-]grounded suspicion that a criminal offense has been or is being committed. It is more than bare suspicion[,] but less than legal evidence necessary to convict beyond a reasonable doubt. Whether probable cause existed is to be determined by the objective reasonableness standard." State v. Judge, 275 N.J. Super. 194, 200-01 (App. Div. 1994) (internal citations omitted). "[A]n odor of unburned marijuana creates an inference that marijuana is physically present . . . ." Id. at 201. The detective smelled the odor of unburned marijuana, and "possession and/or use of marijuana in this State, in any amount, is illegal." Ibid. Accordingly, the police had probable cause to apply for a search warrant to continue searching for the marijuana.

However, the detection of an odor by itself does not mean that the object giving off the odor is in the officer's plain view, permitting a warrantless search and seizure. "Plain" is defined as "free from obstructions; open; clear [in plain view]." Webster's New World College Dictionary 1032 (3rd ed. 1996). (alteration in original). The term "view" is defined as "seeing or looking, as in inspection or examination; sight or vision." Id. at 1488. In the present matter, the backpack containing the marijuana was not in the officer's plain view. The backpack was hidden behind the wall of the bedroom in an area that was not visible unless one pulled the tapestry away from the hole, and peered behind the wall down a narrow space between the wall studs for a distance of about three to four feet. We conclude that once Detective Lange stopped canvassing the premises for evidence of the burglary, and directed his search solely to locating the source of the odor of marijuana, the search became unlawful because it exceeded the limited reasons why the police had entered the dwelling. Frankel, supra, 179 N.J. at 599.

Although we recognize that some courts of other jurisdictions have equated an officer's "smell" to an officer's "plain view," creating an exception from the warrant requirement by permitting a search of premises after the officer detects an odor of contraband, United States v. Angelos, 433 F.3d 738, 747 (10th Cir. 2006); United States v. Haynie, 637 F.2d 227, 233 (4th Cir. 1980), we do not believe that the New Jersey Supreme Court would equate the plain view exception to one based solely upon the olfactory senses under the facts herein. See State v. Bruzzese, 94 N.J. 210, 238 (1983), where the Supreme Court in establishing the three prongs of the plain view exception in discussing the location of the evidence seized, stated "[the police officer] had a lawful right to be in the defendant's bedroom. The boots were in plain view, were not hidden in a closet, but in the officer's line of vision under the dresser." (emphasis added). We determine that such interpretation of "plain view" is in accord with that previously defined herein. The State also argues that once Lange smelled the odor of marijuana, like a police officer who has probable cause to make a motor vehicle stop and detects an odor of marijuana, he had a right to conduct a search for the source of the odor, citing State v. Judge, supra. We find the argument unpersuasive. "It is well-established that the automobile exception depends upon the satisfaction of two requirements: the existence of probable cause and exigent circumstances." State v. Dunlap, 185 N.J. 543, 549 (2006). "[T]he determination regarding those [two] elements must be made on a case-by-case basis." Ibid. The "exigent circumstances" must be such as to "mak[e] it impracticable for the police to obtain a warrant." State v. Cooke, 163 N.J. 657, 671 (2000). Here, no exigent circumstances existed.

Generally, automobile searches are permitted because of the nature of the object itself. A vehicle may be removed from the scene, and is potentially accessible by third parties who might move or damage it, or remove or destroy evidence contained therein. Id. at 672. Unlike a motor vehicle, the dwelling in this case was fixed to its foundation and fully secured with police officers both inside and out. No one could enter the premises, or remove personalty from the dwelling without consent of the police. Therefore, the police were not confronted with exigent circumstances such as the fear of destruction or removal of evidence before a warrant could be obtained. There is nothing in the record to indicate that applying for a search warrant would have been difficult or impractical. The seizure occurred midday on a Monday, when the courts were open. To equate the facts of this case to an automobile search under exigent circumstances would render the requirement of obtaining a search warrant meaningless.

Nor do we find the search justified by the written consent executed by defendant's mother. The consent form was executed after the search. Any evidence seized after the unlawful search must be suppressed as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963).

Accordingly, we reverse the Law Division's denial of defendant's motion to suppress; vacate the conviction; and remand the matter to the trial court for further proceedings in accordance with this opinion.

 

A photograph depicting the hole in the bedroom wall was introduced at the suppression hearing, but was not made part of the appendix on appeal.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-2600-04T1

April 24, 2006