STATE OF NEW JERSEY v. SEAN SCHNEIDER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2670-04T22670-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN SCHNEIDER,

Defendant-Appellant.

_________________________________________________

 

Submitted May 10, 2006 - Decided July 19, 2006

Before Judges Stern and Grall.

on appeal from the Superior Court of New

Jersey, Law Division, Ocean County,

Indictment No. 04-02-426-I.

Robert L. Tarver, Jr., and Associates, attorneys

for appellant (Mr. Tarver, on the brief).

Thomas F. Kelaher, Ocean County Prosecutor,

attorney for respondent (Samuel J. Marzarella,

Senior Assistant Prosecutor, of counsel;

Roberta DiBiase, Assistant County Prosecutor,

on the brief).

PER CURIAM

After his motion to suppress was denied, defendant pled guilty to conspiracy to possess a controlled dangerous substance and was fined $5,000. On this appeal he asserts that the evidence at the motion to suppress was "insufficient to support Judge Citta's finding that the officers honestly believed a burglary had occurred," "the overwhelming weight of the evidence suggests that the officers were incredible witnesses," and "Judge Citta exhibited several episodes of pro-prosecutorial bias to the detriment of the defendant." We find no basis for reversing the denial of defendant's motion, conclude that only the following discussion is warranted, and affirm the judgment. R. 2:11-3(e)(2).

There is no dispute that the police responded to a burglar alarm, and defendant acknowledges that there is a recognized exception to the warrant requirement allowing police officers to "enter a private residence without a warrant when the officers believe that the residence has recently been or is being burglarized." See State v. Faretra, 330 N.J. Super. 527, 531-33 (App. Div.), certif. denied, 165 N.J. 530 (2000); State v. Boud, 240 N.J. Super. 171, 179 (App. Div. 1990). However, defendant argues that "police may not feign a concern of burglary to justify a search they could not conduct otherwise." According to defendant, "the evidence shows that once Officers Errion and Santora viewed what they believed to be [drug] paraphernalia through a window near the front door of the Schneider residence, the focus of their investigation shifted from burglary to a possible CDS investigation" before entering defendant's home. Moreover, defendant points out that he was arrested for possession of CDS, not obstruction of justice, prior to the officers' searching the residence. According to the defense:

This is critical because the officers stated that it was upon entering the residence that they discovered Schneider was indeed a resident and not a burglar. . . . However, if they arrested Schneider for CDS possession before entering the residence, they must have believed him to be a resident and not a burglar. Therefore, if the officers believed Schneider to be a resident, their sweep for burglary accomplices was an illegal ruse to search for additional CDS. The evidence suggests precisely the type of situation the Appellate Division urged vigilance to guard against in both the Faretra and Boud decisions.

[Emphasis added.]

Judge Citta's detailed fact-finding included the fact that Officers Errion and Santora "viewed what [they] believed to be paraphernalia, marijuana paraphernalia or drug paraphernalia" through the kitchen window, that "there [was] no dispute that [defendant] did not have identification on him, [] that he could not provide identification to corroborate his identity" when the officers approached the door, and that defendant was arrested when he did not permit the officers to enter. The judge then concluded:

I find as a fact that they then went in and swept the residence and cleared it in an effort to ascertain whether or not there were any perpetrators on the premises.

In the course of doing so they viewed, in plain view -- and that's not disputed, that there was indicia of drug possession and drug activity in several locations within the house that were in plain view. [W]hether they were on table tops, dresser tops, in the bedroom, in the living room, in the dining area, in the kitchen area, wherever; there was indicia of drug activity that was in plain view that each of the officers viewed as they swept and cleared the premises.

There is no dispute that when they came out they then had a conversation with Mr. Schneider. They had seen his identification at the time, photo identification at the time they swept the premises. So they had, at that point, verification that he was Sean Schneider. But now we have a horse of a different color, so to speak.

Now that they have cleared the premises and they realize that this is Sean Schneider, that his identification is verified, and there was nobody on the premises that had been committing a burglary or any type of home invasion, they turned their attention to the indicia and the evidence that they viewed in plain sight of narcotic activity. And they inquired of him, after they Mirandized him, as to whether or not he would consent to a search.

While the judge was critical of aspects of the officer's testimony and incident reports, he noted that the police knew that "the person who answered the telephone [when the alarm company called] did not know the pass code," and that the officers did not have to accept defendant's word that he lived in the residence when he presented no identification:

They enter the home. They place him under arrest because they don't know who he is. It is unverified, without identification. And he has refused to invite them into the home.

Did they treat him with kid gloves? No. Did they treat him polite[ly] and cooperative[ly]? No. They did what they had to do as expeditiously as possible. They put him under arrest and got him out of the way so that they [could] go in and search that house to see if everybody [was] okay. There is an exception to the warrant requirement in our law precisely for these reasons.

The judge also found defendant's testimony to be "incredible," that he "consent[ed] to [the] search [of] "his room freely and voluntarily," and that the police obtained a search warrant to search the house thereafter.

The judge's findings were supported by the evidence.

According to Officer Errion, after defendant "refused to produce ID or [to allow] us to escort him into the house to get the ID to find out who he was and if he belonged there," defendant was arrested and the officers "went inside the house to look for any other possible suspects that may be burglarizing the house." The marijuana and drug paraphernalia were found on the same dresser as defendant's identification in his bedroom. The officers also observed paraphernalia in the living room through the window and as they entered the house. But Officer Santora confirmed that the entry was to search for burglars. He stated that his attention "wasn't really drawn to the specific items in the room. [He] was mainly concerned with suspects, burglary suspects." He was "not going to spend [his] time peering at items when somebody could sneak up behind" him. There was concern that the person in the house did not "know the pass code" on the alarm system and that there could have been "other perpetrators burglarizing the home." According to Santora:

When you have somebody standing at the front door who won't identify himself, who won't allow us into the house to get his identification, it is a highly unusual circumstance.

Most times you go to a burglar alarm, there is someone on the scene, they are very apologetic for even having us come. Can we come in the house for identification? Absolutely, officer. Follow me in.

They will, many times -- they are so aware of what we are doing and that we are at a certain heightened state of awareness that they will offer a purse [offer], a wallet, here is my ID. It is in here. They don't even want to thumb through their own items. They want to just give it to you and get you out of the house. We couldn't even get in this house, let alone get out of it.

Santora affirmed that the "bottom line" was that "when [they] went to the defendant's residence, [they] went there for one reason and one reason only, to investigate a burglary[,]" and that "when [they] went in that house, [they] went in it for one reason only, to stop a burglary if there was one in progress and find any additional suspects that were in the house, correct[.]"

We are not permitted to "weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Locurto, 157 N.J. 463, 472 (1999) (internal citations and quotation marks omitted). Instead, it is our obligation to determine "whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." Ibid. (internal citations and quotation marks omitted) (alteration in original). Under that standard, we find sufficient evidence in the record to support the motion judge's finding "that the officers honestly believed a burglary had occurred," and thus legitimately entered the residence to investigate a burglary pursuant to a recognized exception to the warrant requirement. See Faretra, supra, 330 N.J. Super. at 531-33; Boud, supra, 240 N.J. Super. at 179; see also State v. Frankel, 179 N.J. 586, 609-12, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004) (police could enter house when concerned about the identification and demeanor of person who answered door in response to "9-1-1" call to be sure no one inside was in danger).

Defendant does not challenge anything that occurred after the entry of the home if the entry was in good faith based on the response to the burglar alarm. He challenges only the fact-finding relating to the officers' belief that there was a burglary, and their entry premised thereon, and claims the officers were incredible and the judge was biased in making his findings. As we find no basis for disturbing the critical findings, we find no basis to upset the conviction.

Affirmed.

 

(continued)

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A-2670-04T2

July 19, 2006