STATE OF NEW JERSEY v. MARK D. BEDNAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5434-04T55434-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK D. BEDNAR,

Defendant-Appellant.

__________________________________________________

 

Argued May 22, 2006 - Decided June 29, 2006

Before Judges Fall and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-05-0892-D.

Joseph J. Rodgers argued the cause for appellant (Joseph J. Rodgers, attorney; Mr. Rodgers and Andrew J. Sutton, on the brief).

Russell J. Curley, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Mr. Curley, of counsel and on the brief).

PER CURIAM

In this appeal, we consider the lawfulnness of a non-consensual, warrantless sweep of a hotel room, purportedly for the protection of police officers, and the ensuing search to which defendant consented. We conclude that the officers' unauthorized entry into defendant's hotel room was not objectively reasonable and that evidence obtained during the unlawful sweep and the following consent search should have been suppressed.

I

The facts adduced at a suppression hearing revealed that Detective Darryl Hall became suspicious of defendant after receiving a tip from a confidential informant about a white male and a black female selling drugs in the vicinity of the Atlantic Palace Hotel in Atlantic City. At Detective Hall's direction, the confidential informant made a controlled drug purchase from the black female mentioned in his tip. Prior to this purchase, Detective Hall was standing outside the Atlantic Palace Hotel when he bumped into a white male who was in the company of a black female. He later learned from a hotel employee that the white male and black female had been leaving and returning to the hotel parking garage in a gray pickup truck.

The next day, Detective Hall observed, and then stopped, a gray pickup truck that had made a right turn on a red light without stopping. The pickup truck was driven by defendant. When defendant was unable to produce identification and when he acknowledged that his driving privileges had been suspended, Detective Hall neither arrested him nor issued a summons. Instead, Detective Hall permitted defendant -- in his company -- to enter the nearby Atlantic Palace Hotel so that defendant could obtain identification he claimed was in his hotel room.

At the suppression hearing, Detective Hall acknowledged that when he, three other police officers, the head of hotel security, and defendant rode the elevator to defendant's room on the 30th floor, defendant was not free to leave, although he also was not under arrest. The State did not contend that the police had probable cause to search defendant's hotel room. And there appears to be no question but that the officers did not feel that defendant, who they greatly outnumbered, was a danger to them either during the motor vehicle stop or while they accompanied defendant from his vehicle to the hotel, or while they rode the elevator to the 30th floor, or as they walked the hallway toward defendant's hotel room. Instead, the State claimed that the officers suddenly had reason to become concerned about their safety only at the moment defendant opened the door to his hotel room because he had previously advised that no one was currently in his room but, as defendant unlocked the door, he called out a female's name. With that, Detective Hall and Detective Christopher Barber, without seeking defendant's consent, entered the room ahead of defendant.

While in the hotel room allegedly looking for sources of danger, Detective Barber saw a towel covering a carbon monoxide detector, which he claimed was suggestive of drug use. He advised Detective Hall of this fact, and Hall immediately "sat [defendant] down," advised him of his Miranda rights and then sought defendant's consent to a search, to which defendant acceded. That search led to the discovery of drugs, cash and other evidence.

II

Defendant was charged in a complaint with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); second-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); and second-degree possession of CDS with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1. He was later indicted by the grand jury and charged with these same offenses. Defendant was also issued two traffic summonses, one which cited him for failing to exhibit documents, N.J.S.A. 39:3-29, and the other for driving while his privileges were suspended, N.J.S.A. 39:3-40.

Defendant's motion for the suppression of evidence seized from his person, his motor vehicle and his hotel room, as well as a motion for reconsideration, was denied, following which defendant pled guilty to possession of CDS with the intent to distribute. The State agreed to dismiss the indictment's remaining charges. Defendant was sentenced to an eight-year term of imprisonment with a four-year, three-month period of parole ineligibility. Monetary assessments were imposed, defendant's driving privileges were suspended for one year, and his vehicle and the money associated with the offense for which he was convicted were forfeited.

Defendant appealed, asserting the following arguments:

I. THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE, IN LIGHT OF HIS FOURTH AMENDMENT RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES.

II. THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE, IN LIGHT OF HIS FIFTH AMENDMENT RIGHTS AGAINST SELF-INCRIMINATING STATEMENTS.

III. ANY CONSENT GIVEN BY THE DEFENDANT IS NULL AND VOID IN LIGHT OF THE FAILURE TO INFORM HIM OF HIS CONSTITUTIONAL RIGHTS EARLIER IN THEIR INTERACTIONS.

IV. AS A CONSEQUENCE OF NOT RESPECTING THE CONSTITUTIONAL RIGHTS OF THE DEFENDANT, ANY EVIDENCE SEIZED THEREFROM SHOULD BE EXCLUDED

We agree that the governmental intrusion into defendant's hotel room, and the following consent search of the room, defendant's person, and his vehicle, exceeded the bounds of the federal and state constitutional prohibitions against unreasonable searches and seizures.

III

We commence our consideration of the legitimacy of the police officers' entry into defendant's hotel room, without a warrant and without consent, by recognizing that "[a] basic principle of Fourth Amendment law is that 'searches and seizures inside a home without a warrant are presumptively unreasonable.'" State v. Henry, 133 N.J. 104, 110 (quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980)), cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993). That the home is "the area most resolutely protected by the Fourth Amendment," 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 2.3 at 554 (4th ed. 2004), is not to be doubted and has been demonstrated by the Supreme Court's oft-repeated declaration that the right of a person "to retreat into his own home and there be free from unreasonable governmental intrusion" stands "[a]t the very core" of the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 511-12, 81 S. Ct. 679, 683, 5 L. Ed. 2d 734, 739 (1961); see also Payton, supra, 445 U.S. at 589-90, 100 S. Ct. at 1382, 63 L. Ed. 2d at 653 (holding that a person's dwelling place marks the "firm line" recognized by the Fourth Amendment as a "threshold [that] may not reasonably be crossed without a warrant . . . [a]bsent exigent circumstances."). This principle is applied with equal force when a person's dwelling place is a hotel or motel room, see State v. Mollica, 114 N.J. 329, 342 (1989); see also Hoffa v. United States, 385 U.S. 293, 301, 87 S. Ct. 408, 413, 17 L. Ed. 2d 374, 381 (1966); Stoner v. California, 376 U.S. 483, 490, 84 S. Ct. 889, 893, 11 L. Ed. 2d 856, 861 (1964); United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997); United States v. Parra, 2 F.3d 1058, 1064 (10th Cir. 1993); United States v. Forker, 928 F.2d 365, 370 (11th Cir. 1991); United States v. Rengifo, 858 F.2d 800, 805 (1st Cir. 1988); United States v. Diaz, 814 F.2d 454, 457-58 (7th Cir. 1987), and other non-permanent dwelling places as well, see, e.g., McDonald v. United States, 335 U.S. 451, 455-56, 69 S. Ct. 191, 193, 93 L. Ed. 153, 158 (1948) (rooms in boarding homes); State v. Stott, 171 N.J. 343, 355-56 (2002) (part of a room in a state-run psychiatric hospital shared by the accused with another patient).

The warrant requirement safeguards citizens by placing the determination of probable cause in the hands of a neutral magistrate before a search is authorized. It is the State which bears the burden of demonstrating that a warrantless search falls within an exception to the warrant requirement. State v. Frankel, 179 N.J. 586, 598 (2004); State v. Penalber, __ N.J. Super. __, __ (App. Div. 2006).

We recognize there are circumstances that permit governmental entry into a dwelling place without a search warrant. Uninvited entries for the protection of police officers may be permitted when the police have a warrant to arrest an individual inside so long as exigent circumstances are present and so long as the warrant is not just for a "routine arrest[] in which there was ample time to obtain a [search] warrant." Payton, supra, 445 U.S. at 583, 100 S. Ct. at 1378, 63 L. Ed. 2d at 648; Steagald v. United States, 451 U.S. 204, 222-23, 101 S. Ct. 1642, 1652-53, 68 L. Ed. 2d 38, 51-52 (1981); Dorman v. United States, 435 F.2d 385, 393-94 (D.C. Cir. 1970). A warrant is not required when the police are in "hot pursuit" of a suspect, Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S. Ct. 2091, 2097-98, 80 L. Ed. 2d 732, 744 (1984); United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300, 305-06 (1976); Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 1645-46, 18 L. Ed. 2d 782, 787 (1967); State v. Bolte, 115 N.J. 579, 585-86, cert. denied, sub nom. New Jersey v. Bolte, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989), so long as the pursuit is of a person suspected of committing an offense of sufficient gravity, see Welsh v. Wisconsin, supra, 466 U.S. at 753, 104 S. Ct. at 2099, 80 L. Ed. 2d at 745; State v. Bolte, supra, 115 N.J. at 596-97. Other limited circumstances, not remotely applicable here, may justify a warrantless, non-consensual entry into a dwelling place, such as to fight a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949-50, 56 L. Ed. 2d 486, 498 (1978), or to assist a person who is seriously injured or threatened with such injury, Brigham City v. Stuart, __ U.S. __, __, 126 S. Ct. 1943, __, 164 L. Ed. 2d 650, 657 (2006); Mincey v. Arizona, 437 U.S. 385, 392-94, 98 S. Ct. 2408, 2413-14, 57 L. Ed. 2d 290, 299-301 (1978). See generally 3 LaFave, supra, 6.6 at 450-79.

The State does not base its contention that entry into defendant's hotel room was lawful on any of these known exceptions. Instead, the State claims that these four armed police officers were entitled to assume they were endangered -- and entitled to perform a protective sweep -- once they reached the hotel room door in the company of a motorist who had committed a minor traffic offense and who they had permitted to go there to obtain his driving credentials. Even if we were to attribute some significance to the circumstances of the day before, when a confidential informant purchased drugs from a woman briefly seen a few minutes previously in defendant's presence, the State has not been explained to our satisfaction how that circumstance would engender a concern for the officers' safety the next day when in defendant's company. The State has also not explained how this alleged safety concern could have reached such heightened proportions when there is no dispute that minutes earlier, upon stopping defendant's vehicle for a routine motor vehicle violation, the officers felt no need to perform a Terry patdown of defendant, and felt no need to search defendant's vehicle for their own protection as permitted, in some circumstances, in Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). Indeed, the absence of any danger posed by the motor vehicle stop was so obvious that the officers not only took no steps at the site of the motor vehicle stop to ensure their own protection but also felt no hazard was presented by permitting defendant to go to his nearby hotel room to fetch his identification. This lack of concern could not have changed as the four officers accompanied defendant into the hotel, up the elevator and down the hallway toward his hotel room. He was never once patted down during this short journey. As Detective Barber testified, he and defendant casually spoke about other unrelated matters as this group walked into the hotel.

It may be true that the officers' suspicions about defendant may have been raised by seeing him briefly in a suspected drug dealer's presence the day before. Those facts alone, however, could not form the basis for a reasonable, articulable suspicion that defendant was either then -- let alone, later, when the motor vehicle stop occurred -- engaged in criminal activity other than operating a motor vehicle while his driving privileges were suspended. We observe that it was conceivable that the officers may have had cause to arrest defendant as a result of the motor vehicle stop, see State v. Lark, 163 N.J. 294, 296-97 (2000), but we need not resolve that question because the police did not arrest defendant, or even immediately issue a summons. Nor did the police search defendant's vehicle or seek consent to search defendant's vehicle as may be permissible in certain circumstances. See Michigan v. Long, supra, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201; State v. Carty, 170 N.J. 632, 648 (2002). Indeed, the trial judge correctly recognized, and the State has not argued to the contrary, that the information possessed by the officers during this motor vehicle stop -- the same information they possessed when they stood before defendant's hotel room door -- did not justify a search of the vehicle. See Michigan v. Long, supra, 463 U.S. at 1050-51, 103 S. Ct. at 3481-82, 77 L. Ed. 2d at 1220-21; State v. Lund, 119 N.J. 35, 48-49 (1990). Even if we engage in hypotheticals to test the worth of the information possessed by the officers about defendant, and assume that defendant had stopped his vehicle upon the intervention of the police for making an illegal right turn on a red light, and then fled from his vehicle to his hotel room, the police in hot pursuit of defendant would not have been authorized by law to enter the hotel room without a warrant and without defendant's consent due to the minor nature of the moving violation. Welsh v. Wisconsin, supra, 466 U.S. at 753, 104 S. Ct. at 2099, 80 L. Ed. 2d at 745; State v. Bolte, supra, 115 N.J. at 596-97. Accordingly, we find no merit in the contention that the particular "police-created" circumstances occurring here permitted some greater governmental intrusion than more suspicious circumstances would have warranted.

Whether there are sufficient exigent circumstances to justify a warrantless entry into a dwelling place based upon one of the known exceptions to the warrant requirement is "highly fact-sensitive." State v. Lewis, 116 N.J. 477, 487 (1989); State v. Penalber, supra, __ N.J. Super. at __. We recently said that

[i]f the police had sufficient time to obtain a warrant, and the alleged exigent circumstances were "police created," the evidence obtained as a result of a warrant-less entry must be suppressed. State v. Hutchings, 116 N.J. 457, 468-77 (1989). "Police-created exigent circumstances which arise from unreasonable investigative conduct cannot justify warrantless home entries." State v. De La Paz, 337 N.J. Super. 181, 196 (App. Div.), certif. denied, 168 N.J. 295 (2001).

[State v. Penalber, supra, __ N.J. Super. at __.]

The standard which governs our review requires that we defer to the trial judge's findings of fact. However, that standard does not require that we defer to findings which are unsupported by the evidence in the record. See State v. Locurto, 157 N.J. 463, 470-71 (1999).

Here, we can find no significance in the fact that defendant called out a female name while unlocking his hotel room door. That is not the type of evidence, whether or not weighed with the other scant information learned by the police the day before, which would justify a finding of exigent circumstances. There was nothing about the overall circumstances that would have led a reasonable person in the position of the officers to believe that their safety was jeopardized at that moment. Defendant's calling out of a name was equally as likely to have represented a simple warning to a companion who may have been in the room. As defense counsel argued at the suppression hearing, defendant's calling of a name as he unlocked the door could have been for the purpose of warning someone who "had just taken a shower and was not properly clothed," or as a courtesy to an occupant that he was about to enter with others. We recognize that the calling of a name at that moment could also support the possibility suggested by the officers' actions, but defendant's actions and statement as he unlocked the hotel room door must be considered along with the reason why the officers were there -- to obtain defendant's identification in connection with the routine motor vehicle stop that had just occurred.

We also emphasize that the entry into the hotel and to defendant's hotel room was a "police-created" event and, thus, must be evaluated with healthy skepticism. We cannot help but observe that this event, while occurring in the context of a routine motor vehicle stop, somehow generated the interest of four police officers and the hotel's head of security. Common sense would strongly suggest that the officers were interested in more than simply examining defendant's driving credentials. What is represented as an innocent walk into the hotel to obtain identification because of a routine motor vehicle stop, suddenly turned into the officers' rush into a hotel room, once the door was unlocked, out of an alleged concern that someone within the room might be armed and dangerous. That course of conduct -- quite inconsistent with the officer's ostensible purpose for being there -- is highly persuasive evidence of the unreasonableness of the officers' belief that they were jeopardized by the circumstance that they had invited, if not created.

We recognize, however, in questioning the bona fides of the officers' presence outside defendant's hotel room door, that the officers' "subjective motivation is irrelevant" in judging whether a search and seizure is permissible. Brigham, supra, __ U.S. at __, 126 S. Ct. at __, 164 L. Ed. 2d at 658. The Supreme Court has expressed its unwillingness "to entertain Fourth Amendment challenges based on the actual motivations of the individual officers." Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89, 98 (1996). See also Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443, 456 (1989). Our Supreme Court has followed this same course in interpreting Article I, paragraph 7 of the state constitution. State v. Bruzzese, 94 N.J. 210, 219-22 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Instead, it is not the particular officer's state of mind "but the objective effect of his actions" that is determinative of whether a particular seizure passes either federal or state constitutional muster. Bond v. United States, 529 U.S. 334, 338 n.2, 120 S. Ct. 1462, 1465 n.2, 146 L. Ed. 2d 365, 370 n.2 (2000); State v. Lund, supra, 119 N.J. at 45; State v. Bruzzese, supra, 94 N.J. at 219. In short, an action is reasonable in this context "regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.'" Brigham, supra, __ U.S. at __, 126 S. Ct. at __, 164 L. Ed. 2d at 658 (quoting Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168, 178 (1978)). Accordingly, just as we must set aside our suspicions about the other more likely reasons why four police officers and the head of hotel security were interested in examining defendant's driving credentials, and just as we must consider only the objective effect of the officers' investigation, so too must we consider only the objective reasonableness of the officers' concerns about defendant's utterance of a single word -- a female's name -- and not the officers' "inchoate and unparticularized suspicion or 'hunch,'" as to what that one word may have been intended to convey or what may have been behind that hotel room door. State v. Lund, supra, 119 N.J. at 45 (quoting Terry v. Ohio, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). It is not what the officers may have assumed at that moment, but "whether a reasonably prudent person would be warranted in the belief that his or her safety or that of others was in danger." State v. Lund, supra, 119 N.J. at 45. That question is to be measured by an objective standard; "[m]ore than subjective impressions are required." Ibid. We conclude that defendant's calling out of a name after having told the officers that no one was in the room, either standing alone or in the context of the scant other information learned by the police the day before, could not give rise to a reasonable belief, judged by an objective standard, that the officers were endangered as defendant's hotel room door opened.

Accordingly, we conclude that the police were not justified in breaching the threshold of defendant's hotel room without consent and without a warrant.

IV

Because we conclude that the police violated defendant's federal and state constitutional rights when they entered his hotel room without consent, it readily follows that what the officers observed in the room during their unlawful protective sweep, upon which they based their request for consent to further search the room, defendant himself, and defendant's vehicle, was tainted by and constituted the fruit of that unlawful search. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963); State v. Johnson, 118 N.J. 639, 652 (1990). Thus, the evidence obtained from defendant, his hotel room and his motor vehicle should have been suppressed.

V

The order that denied defendant's motion for the suppression of evidence is reversed, the judgment of conviction is vacated, the charges that were dismissed pursuant to a plea agreement are reinstated, and the matter remanded.

 

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

This understanding is demonstrated by the very wording of the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const., Amendment IV (emphasis added).

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

When the assistant prosecutor asked what they then spoke about, Detective Barber said that "we were talking about [defendant's] occupation. He said he did bulkhead work and we began [to] talk because a friend of mine had just had a bulkhead put in and we're talking about the price . . . per foot of the bulkhead."

(continued)

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A-5434-04T5

June 29, 2006