STATE OF NEW JERSEY v. RICKY HUBBARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3175-07T43175-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant/

Cross-Respondent,

vs.

RICKY HUBBARD,

Defendant-Respondent/

Cross-Appellant.

_______________________________________________________

 

Argued October 16, 2008 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-01-227.

Kenneth P. Ply, Assistant Prosecutor, argued the cause for appellant/cross-respondent (Paula T. Dow, Essex County Prosecutor, attorney; Mr. Ply, on the brief).

Alexander R. Shalom, Assistant Deputy Public Defender, argued the cause for respondent/cross-appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Shalom, on the brief).

PER CURIAM

We granted the State's motion for leave to appeal from that portion of the January 9, 2008 order that suppressed certain evidence seized following a warrantless search of the rear bedroom of the second-floor apartment at 124 Hobson Street, Newark. Defendant, Ricky Hubbard, cross-appeals from that portion of the order that denied his motion to suppress other items found in the bedroom after the police obtained the consent of defendant's seventeen-year old girlfriend and tenant of the apartment, Vanika Williams. On appeal, the State raises the following points for our consideration:

POINT I

THE ENTRY INTO THE APARTMENT AT 124 HOBSON STREET WAS JUSTIFIED BY THE EXIGENT CIRCUMSTANCES EXCEPTION TO THE WARRANT REQUIREMENT.

POINT II

THE DISCOVERY OF THE STOLEN CELL PHONE IN PLAIN VIEW WAS INADVERTENT UNDER THE CIRCUMSTANCES.

On the cross-appeal, defendant raises the following points:

POINT ONE

BECAUSE AFTER THE POLICE HAD PROBABLE CAUSE TO BELIEVE THAT CONTRABAND WAS INSIDE 124 HOBSON STREET, APARTMENT 2 THEY WAITED 10 TO 15 MINUTES, CALLED FOR BACKUP, AND SUBPOENAED PSE&G RECORDS, THEY HAD ENOUGH TIME TO SECURE A TELEPHONIC SEARCH WARRANT, AND THEREFORE EXIGENT CIRCUMSTANCES CANNOT JUSTIFY ENTRY INTO THE APARTMENT.

POINT TWO

BECAUSE THE INQUIRY INTO AN EXPECTATION OF PRIVACY CANNOT TURN SIMPLY ON WHETHER A DOOR IS LOCKED OR UNLOCKED, THE ENTRY INTO 124 HOBSON STREET ITSELF VIOLATED THE FOURTH AMENDMENT AND THE ITEMS SEIZED MUST BE SUPPRESSED.

POINT THREE

EVEN IF EXIGENT CIRCUMSTANCES JUSTIFIED ENTRY INTO THE HOUSE AND APARTMENT, DISCOVERY OF CONTRABAND CANNOT BE JUSTIFIED UNDER THE PLAIN VIEW EXCEPTION TO THE FOURTH AMENDMENT'S WARRANT REQUIREMENT.

POINT FOUR

BECAUSE THE POLICE ILLEGALLY ENTERED THE APARTMENT WITH THEIR GUNS DRAWN, CONSENT SUBSEQUENTLY GIVEN BY A DETAINED SEVENTEEN-YEAR[] OLD OCCUPANT OF THE HOUSE, WHO WAS NOT CALLED AS A WITNESS AT A HEARING CANNOT BE DEEMED VOLUNTARILY GIVEN.

We have considered these arguments in light of the record and applicable legal standards. We affirm that portion of the order that suppressed the seizure of certain items, and reverse that portion of the order that denied the balance of defendant's motion, and conclude that the motion should have been granted as to all the evidence seized from the apartment.

I.

A.

On January 19, 2007, the Essex County grand jury returned Indictment #07-01-227 charging defendant with: conspiracy to commit robbery in the second degree, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two, three and four); felony murder of Jonathan Anang, N.J.S.A. 2C:11-3a(3) (count five); first-degree purposeful murder of Anang, N.J.S.A. 2C:11-3a(1),(2) (count six); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count seven); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count eight); two counts of third degree receiving stolen property, N.J.S.A. 2C:20-7 (counts nine and ten); and third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5c(1) (count eleven). In the only count of Indictment #07-01-228, returned by the grand jury on the same day, defendant was charged with second-degree possession of a firearm having previously been convicted of a crime, N.J.S.A. 2C:39-7b(1). Defendant moved to suppress those items seized from the apartment on July 25, 2006, including a cellular telephone; a sawed-off shotgun; seven rounds of .357 ammunition; and three shotgun shells.

At the suppression hearing held on September 18, 2007, the State called Captain John Melody of the Essex County Prosecutor's Office as its sole witness. Melody had been employed by the prosecutor's office for twenty-three years and was assigned to the homicide squad. He was involved in the investigation into Anang's murder that had taken place in Newark during the early morning hours of July 23, 2006. In the course of the investigation, Melody became aware of a robbery that had taken place immediately prior to Anang's shooting and around the corner from the homicide scene. A Motorola cell phone was stolen from the victim of the robbery.

On July 24, 2006, Detective Chris Smith of the prosecutor's office obtained a communications data warrant (CDW) for the stolen cell phone, which allowed for the tracking and tracing of any activity on the phone. In conjunction with the United States Marshall's Service Technical Unit, Melody was able to track the location of the stolen phone to within twenty-eight meters of 112 or 113 Hobson Street in Newark. In response to this information, and armed with a description of a red sports utility vehicle used in the robbery and homicide, the police went to that location in an attempt to locate the vehicle, but were unsuccessful.

On Tuesday, July 25, the Marshall's Service advised Melody and Smith that there had been activity on the cell phone. In particular, Melody became aware that the person in possession of the cell phone had made contact with a resident of the second floor apartment at 427 Leslie Street in Newark. He and Smith went to that location to further investigate. At approximately 9:30 a.m., the investigators spoke with Shannon Parsons who resided there with her grandmother. Parsons told the officers that a friend, Vanika Williams, called her using a stolen cell phone, which had been given to Williams by her boyfriend, Ricky, a couple days earlier. Parsons also told them that Williams lived with her mother on Hobson Street, in Newark, and she provided a description of the house, though she did not know the street address. Before leaving her house, the investigators requested that Parsons not contact Williams, fearing it could result in the loss or destruction of evidence.

The officers were able to locate a house, 124 Hobson Street, that fit Parsons' description and by 10:00 a.m., or shortly thereafter, they had contacted PSE&G for subscriber information which revealed that utility services were supplied to an Anita Williams on the second floor of the house. They also confirmed that the house was within the twenty-eight meter radius of 112 or 113 Hobson Street, the location of the stolen cell phone as initially indicated by the Marshall's Service.

Melody contacted the Newark Police Department to have back-up officers dispatched to the address. Other Newark police officers "were already in the vicinity" looking for the suspect's vehicle. After the backup officers arrived on the scene, Melody, Smith, and a couple of the police officers approached the building with the intent of locating Williams and questioning her about the stolen cell phone. Approximately seven or eight uniformed officers remained outside surrounding the perimeter of 124 Hobson Street. Melody acknowledged that at this point a possibility existed Williams would be arrested if she were in possession of the stolen cell phone.

The building had three mailboxes and more than one doorbell near the outside door. The investigators rang all of the doorbells but received no response. At around 10:15 a.m., they entered the building through the front door which was closed, but unlocked, and ascended the stairs to the second floor apartment. Melody knocked hard on the door of the apartment several times, and even though he heard voices from inside the apartment, no one responded to the knocking. Melody heard no threats or sounds of violence from within the apartment, and he had no reason to believe there might be a hostage situation inside.

The door to the apartment, which Melody described as "flimsy," opened slightly as he knocked, and he observed "a silhouette or a shadow" of a person. He could not tell "if it was a male or female going from . . . a room to the left in . . . [] haste." Melody announced that they were police officers, and requested that the door be opened. He "believed someone was in that . . . room," so he "knocked harder and the door opened up at that stage." He saw no one in the location where he had previously seen the "silhouette," so he, Smith and a Newark police officer went into the apartment and immediately to a closed door in the rear. At the closed rear door, Melody again announced they were police officers and "immediately opened up the door."

Inside the back room was a woman, later identified as Williams, an African-American male, later identified as defendant, and their child, all in bed together. Melody demanded that everyone show their hands, and Williams "and the baby immediately complied." They got out of the bed and were removed from the room, but defendant kept his hands under the bed covers. The officers physically removed defendant from the bed, causing the mattress to shift, at which point Smith saw the handle of a shotgun, seized it and secured the weapon, which was loaded with four shells. Upon entering the room, Melody saw a cell phone in a charging stand at the foot of the bed. Once the room was secured and the defendant was handcuffed, Smith, using his own phone, called the telephone number of the stolen cell phone and the phone in the charger rang.

Having recognized the incoming number on the charging cell phone as Smith's phone number, the investigators seized the phone while advising Williams of her rights. Williams volunteered orally "that the cell phone was in fact given to her by [defendant] [] approximately a day or two ago . . . [and] the shotgun belonged to [defendant]." The officers read Williams a written consent to search form, which she in turn read and signed. Pursuant to that consent, the investigators continued their search of the rear room of the apartment and recovered seven .357 bullets in a Nike shoebox and three shotgun shells similar to those found in the weapon itself.

On cross-examination, Melody acknowledged that when the CDW was secured by his office, they did not obtain a "hand-held" tracking device which would have enabled the officers to know if they were "getting closer to the" cell phone itself. Melody testified that he did not "recall many people out" in the vicinity when the officers arrived at 124 Hobson Street. He further testified that he believed the stolen cell phone "was possibly inside" 124 Hobson Street when he arrived there, though he declined to say he possessed "probable cause" to search the apartment at that time. Melody also testified that if Williams was in possession of the cell phone, "[t]here was a possibility we could have arrested her[.]"

Although he heard voices in the apartment, Melody agreed that the people inside "didn't have to answer the door," though his suspicions were aroused when no one answered either the doorbell or his knocking. He testified that if he had not seen the hasty movement of the silhouette through the door, or heard any noise coming from the apartment, the officers would have left the scene without entering since no one had responded to the knocking. The following exchange took place between Melody and the judge:

Judge: Did you have probable cause to believe that [Williams] was in that apartment with the cell phone when you knocked on the door of that apartment?

Melody: Yes.

Judge: Why didn't you get a search warrant?

Melody: Well, at that point . . . the phone was moving around quite a bit, based on the information we got from the marshals. It still fell with[in] the [twenty-eight] meter radius of that location.

. . . .

. . . I felt after we . . . spoke to the people over there, we weren't guaranteed that they were [not] going to make a phone call or anything else at that point. The phone was moving consistently at that . . . point. We felt we wanted to get over to that location right away to . . . further investigate the information that [Parsons] gave us.

Judge: Did you have time to get a telephonic search warrant?

Melody: I don't believe at that time, leaving that location and feeling that she would have made that phone call, I felt we had to move in the quickest way possible.

Melody testified that at the time Williams signed the consent form she was not free to leave the apartment, and potentially could have been charged with a number of criminal offenses, though she ultimately was not. He did not know whether Williams was a minor, but if he had known she was, he "probably would have secured the [apartment] and got a search warrant."

On re-direct, Melody testified that "there's always potential based on the information of an armed robbery, weapons, and homicide that . . . there [are] grounds . . . for hostage situations and a barricade." He did not know how many people were in the apartment when he entered, and he was concerned that someone in the apartment might see the presence of officers on the street from a window. However, he acknowledged when asked by the judge that he "busted down the door . . . on purpose, based on what [he] thought" at the time was occurring in the apartment.

B.

In a comprehensive, well-reasoned written opinion, the motion judge reviewed the testimony of Melody and found him to be a credible witness. The judge first determined that the officers' entry into the common hallway of 124 Hobson Street was "proper," noting the outside door of the building was not locked, nor was any evidence presented that it was "commonly locked." Citing State v. Johnson, 171 N.J. 192, 209 (2002), the judge concluded that "none of the occupants [of a multi-occupancy premises] can have a reasonable expectation of privacy in areas that are also used by other occupants."

The judge also concluded that probable cause to search the apartment "manifested when the subscriber information subpoenaed from PSE&G showed that Anita Williams lived at that location." Taken together with the information the officers obtained from Parsons, and the information obtained from the CDW that the cell phone had been tracked to within twenty-eight meters of 112 Hobson Street, "[t]his . . . established a fair probability that contraband or evidence of a crime would be found" in the apartment.

The judge considered whether exigent circumstances existed that excused the need to obtain a warrant prior to entering 124 Hobson Street, first noting that "[s]uch circumstances may exist if the facts supporting probable cause were unanticipated and occurred quickly," citing State v. Cooke, 163 N.J. 657 (2000). He considered the factors we listed in State v. Alvarez, 238 N.J. Super. 560 (App. Div. 1990), in determining whether exigency existed in this case.

The judge determined that "there was a lack of urgency" at the time of the entry because the prosecutor's investigators "[h]ad taken the time to draft a subpoena," "[f]ax[ed] the subpoena requesting documents from PSE&G," "[c]alled Newark Police department for backup," and "[s]urrounded 124 Hobson Street." He noted that Melody was fully familiar with "the telephonic warrant process, yet he and his fellow officers forcefully entered the apartment without a warrant." The judge also concluded that a telephonic warrant could have been relatively easily obtained given the time of day--mid-morning--the day of the week--Tuesday--and the fact that the prosecutor's offices were located in the same building as the criminal courts where numerous judges were sitting.

The judge further concluded that "there [wa]s no evidence which would suggest the police had a 'reasonable belief'" that the cell phone was about to be removed or destroyed. He noted that any danger to the police officers guarding 124 Hobson Street "was created once they knocked on the second floor apartment door jarring it open[,]" and "nothing precluded [them] from obtaining a search warrant prior to the arrival at the scene as they had the requisite probable cause." The judge concluded that the occupants of the apartment may have been able to look outside and see the officers surrounding the building, thus suspecting that the police were "on their trail," but that was unlikely until Melody rang the doorbell. Moreover, he noted that Melody did not know anyone was actually in the apartment until he heard voices and saw the "silhouette." The judge further reasoned that any attempts to destroy the cell phone and the other evidence would have been "extremely difficult," given their nature. The judge agreed with the State that the offenses being investigated were serious, the perpetrator was likely armed and dangerous, and that probable cause was sufficiently demonstrated. The judge concluded that any exigency, however, was created by the police themselves, distinguishing the facts from those presented in State v. Laboo, 396 N.J. Super. 97 (2007), and finding them more similar to those presented in Lewis, supra, and State v. De La Paz, 337 N.J. Super. 181 (App. Div.), certif. denied, 168 N.J. 295 (2001). He concluded, "[T]he warrantless search cannot be justified by the exigent circumstances exception to the warrant requirement."

The judge rejected the State's argument that the phone was properly seized because it was in "plain view," noting that exception to the warrant requirement only applies if the "officer is legally in a position to view the item[,]" and its "discovery . . . is inadvertent[,]" citing State v. Bruzzese, 94 N.J. 210, 236-37 (1983). The judge concluded the State failed to demonstrate that either of these two conditions existed in this case.

Finally, the judge considered whether those items seized after the officers had obtained Williams' consent, i.e., the .357 ammunition and three live shotgun rounds, should also be suppressed. Noting defendant's contention that "the illegal entry into the apartment raises serious concerns as to whether any consent could be freely given[,]" the judge nevertheless concluded that the "State has proven that the consent to search was freely, voluntarily and knowingly given." He denied defendant's motion to suppress with respect to this evidence and entered the order now under review.

II.

The State contends that the judge erred in determining that the exigent circumstances exception to the warrant requirement was inapplicable. While it argues that securing a search warrant was unfeasible given the fluidity of the situation as an active homicide investigation, the State also contends that the judge gave undue consideration to this factor. In short, because the police had the right to enter the building and investigate further the information supplied by Parsons, the State contends that even if a warrant could have been secured, Melody and the others were in the midst of an ongoing investigation of serious violent crimes, and they acted reasonably in going to the building to speak to Williams before applying for any warrant. The State contends that the facts are so similar to those presented in Laboo that the rationale we employed in that case should compel the same result, i.e., that the police acted reasonably when confronted with exigent circumstances.

We conclude that the exigent circumstances exception does not apply under the facts of this case and the police entry into the apartment was impermissible. In large part, we agree with the reasoning employed by the motion judge and affirm substantially on that basis. We add only these comments.

In Laboo, the police were investigating several armed robberies committed within a one-hour time period. 396 N.J. Super. at 100. After obtaining a CDW to track a cell phone stolen during one of the robberies, some thirty hours later investigators located the phone at a three-family house in Newark. Ibid. Using a hand-held device, the officers entered the house and followed the signal to the second-floor apartment. Id. at 101. Meanwhile, a crowd of people had gathered outside "having become aware that a tracking device was being used." Id. at 100. The investigator "heard a voice he believed to be a young female yelling and then a man's voice saying, 'shut-up, shut-up, 5-0,' . . . a 'layman's term for police.'" Id. at 101. After "hear[ing] scurrying in the apartment," and fearing "a hostage or a barricade situation," the police broke through the door, discovered three men inside with various items stolen during the robberies, as well as a handgun in one of the bedrooms. Ibid.

In reversing the trial judge's decision suppressing the evidence, we concluded that "[t]he existence of probable cause and exigent circumstances trumps the right of privacy and the requirement of a search warrant." Id. at 104 (citing Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 1646, 18 L. Ed. 2d 782, 787 (1967)). Acknowledging defendants' argument that the exigent circumstances were police-created, thus defeating the exception to the warrant requirement, we noted "although the exigent circumstances that justified entry into the apartment may have been 'police-created,' they arose as a result of reasonable police investigative conduct." Id. at 106.

We find the facts in this case to be sufficiently distinguishable both in terms of the officers' conduct prior to entering 124 Hobson Street, and their conduct after they entered and knocked on the apartment door, so as to justify a different result. In Laboo, we noted that

Although it [wa]s true that the officers knew that a live cell phone was located in a multi-family building when they first arrived at the address and that there might be suspects at the location, they had no idea which apartment contained the cell phone or the layout of the interior of the building. The officers were neither in control of the location nor the timing of the encounter such that they could ensure continuing an adequate and safe surveillance until they were able to obtain a telephone warrant.

[Id. at 106-07 (emphasis added).]

In Laboo, the police had little information other than a signal from a hand-held tracking device, which they contemporaneously followed hoping it would lead them to evidence of a crime. Once inside the building, with a potentially hostile crowd gathered outside, the officers still did not know where the phone might be until the signal led them to the second floor apartment.

In contrast, here Melody and his fellow officers knew that the stolen cell phone had recently been used from a location within a short-radius of 112 or 113 Hobson Street. They knew after speaking with Parsons that Williams had recently used the phone, that she lived in a certain house in that vicinity with her mother, and that someone with the last name of Williams was the PSE&G subscriber to a specific unit in the house. They had the house surrounded by police officers and could have with reasonable facility obtained a telephonic search warrant.

We do not imply that the police acted unreasonably in deciding to approach the apartment door to speak to Williams before obtaining a search warrant. See De La Paz, supra, 337 N.J. Super. at 196 (holding that "[p]olice-created exigent circumstances which arise from unreasonable investigative conduct cannot justify warrantless home entries"). Rather, the ability to have obtained a warrant is a factor that weighs strongly against a finding that exigency existed in the first instance. See State v. Penalber, 386 N.J. Super. 1, 13 (App. Div. 2006) (holding that a determination as to "whether a warrantless entry into a residence was justified by genuine exigent circumstances or was the product of a police-created exigency, a court should 'appraise the [officers'] conduct during the entire period after they had a right to obtain a warrant and not merely from the moment when they knocked at the [suspect's] front door.'")(quoting United States v. Patino, 830 F.2d 1413, 1416 (7th Cir. 1987), in turn quoting United States v. Rosselli, 506 F.2d 627, 630 (7th Cir. 1974)).

In Laboo, the police knew the robberies had been perpetrated by four males. Thus, when they heard a young female voice yelling inside the apartment, and a male voice telling her to keep quiet and acknowledging the police presence, it was a reasonable belief that emergent action was needed to protect themselves, the occupants of the apartment, or the public at large from harm. As we noted "[t]he danger occurred suddenly and spontaneously when a male occupant responded to a young lady's yelling by saying 'shut up, shut-up 5-0.' It did not result from the officers' mere presence in the building. It became dangerous for the first time when the suspects became aware of the police presence." Laboo, supra, 396 N.J. Super. at 107.

Here, though Melody testified he heard voices from inside the apartment, he did not hear any threats or even an acknowledgement that the occupants knew the police were outside. Melody did not know whether the voices were male or female, acknowledging that he held no belief that any suspect, other than Williams, might be in the apartment. He did not observe any particular behavior on the part of the "silhouette" he saw through the door jamb that reasonably aroused apprehension or suspicion. In short, the actual events that took place as the police were in front of the door to apartment two cannot be deemed to present exigent circumstances requiring their immediate entry into the apartment, and are factually distinguishable from the situation faced by the police in Laboo.

We conclude that exigent circumstances did not support the warrantless entry of the police into the apartment. As a result, we need not consider the second point raised by the State, i.e., that the seizure of the items was justified by the "plain view" exception to the warrant requirement. See Johnson, supra, 171 N.J. at 206 (holding "[t]he plain view doctrine requires the police officer to lawfully be in the viewing area"). We affirm that portion of the order that granted defendant's motion to suppress as to the cell phone and shotgun.

III.

We turn to the issues defendant raises in his cross-appeal. In particular, defendant argues that any consent to search given by Williams was constitutionally infirm because she was being detained by the police at the time she was asked to consent, and because "if the entry into the apartment was illegal, serious questions exist as to whether any consent given . . . thereafter could be freely given." The State counters that the judge appropriately considered "the totality of the circumstances" and correctly concluded Williams' consent was freely and voluntarily given.

The Supreme Court has held that a "consent to search that is attributable to police misconduct involving the violations of constitutional rights may be regarded as the product of that unconstitutional conduct and an invalid basis on which to justify a search." State v. Smith, 155 N.J. 83, 101, cert. denied, New Jersey v. Smith, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998) (citations omitted). Whether the taint of a prior constitutional violation has been sufficiently cleansed so as to permit the seizure of evidence on other independent grounds depends upon consideration of three factors--"the temporal proximity between the illegal conduct and the challenged evidence; [] the presence of intervening circumstances; and [] the flagrancy and purpose of the police misconduct." State v. Williams, 192 N.J. 1, 15 (2007)(quoting State v. Johnson, 118 N.J. 639, 653 (1990)); Smith, supra, 155 N.J. at 100.

Applying these factors to the case at bar, the seizure of the ammunition and shotgun shells in the apartment was not sufficiently attenuated from the prior unconstitutional entry despite the officers having obtained Williams' consent in the interim. Melody testified that Williams and her child were removed from the bedroom and another officer obtained her consent shortly thereafter and while the police were still in the apartment securing defendant, the weapon, and the phone they had already found. Williams, who was being detained by the officers at the time, was clearly aware of that. Her consent cannot be viewed as an intervening circumstance that somehow attenuated the connection between the unconstitutional entry of the apartment and the ultimate seizure of the evidence. Consideration of these two factors--temporal proximity and lack of any intervening circumstance--predominate our analysis, and we need not attribute any venal motive to the officer's conduct in order to conclude that the unconstitutional entry of the apartment tainted the seizure of the other items.

The circumstances are comparable to those in Smith, where the police improperly seized the keys to a certain apartment from the defendant during a frisk on the street. Id. at 89. Thereafter, they obtained the tenant's consent to search her apartment, using the keys for entry, and found drugs in the refrigerator. Id. at 90. The Court, noting the brief temporal proximity and that the tenant knew the police had the key, were standing outside the apartment, and could get a warrant, held that her "consent was not an independent intervening circumstance" because "[i]n light of those factors, the discovery of the drugs was a product of the unlawful seizure of the keys." Id. at 101.

We conclude that defendant's motion to suppress as to the ammunition and shotgun shells should have been granted. We therefore reverse that portion of the order under review that denied that request, and remand the matter to the motion judge for the entry of an appropriate order. In light of our conclusion, we need not consider the third point raised by defendant on his cross-appeal, i.e., whether the entry of the police into the hallway of 124 Hobson Street was itself unconstitutional. See Penalber, 386 N.J. Super. at 11 (declining to address "whether the occupants of [a] second floor apartment had a reasonable expectation of privacy in the hallway and stairway leading to the second floor, because the police entry into the apartment [was] invalid even if the police were in a public place").

Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.

 

Melody actually testified that he believed the subscriber information had revealed a contact at either 437 or 467 Leslie Street. But, it is apparently undisputed, and the record reveals at other points, that the actual address was 427 Leslie Street.

Melody later testified that the subscriber information was furnished after his office had supplied PSE&G with a subpoena. Exactly when the subpoena was served was unclear, except that Melody testified the information was given to him "kind of immediate[ly]." He acknowledged having the subscriber information before arriving at 124 Hobson Street.

Melody testified that the shotgun shells were found "in the rear bedroom also," but provided no other location.

These factors include: "(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause, and (9) the time of the entry." Alvarez, supra, 238 N.J. Super. at 568 (citing State v. Hutchins, 116 N.J. 457, 465-66 (1989) and State v. Lewis, 116 N.J. 477, 484 (1989)).

The judge concluded the "time of the entry" was insignificant.

At oral argument, we clarified that it was one of defendant's contentions that any consent given by Williams was the product of the impermissible presence of the police in the apartment in the first instance, and it could not justify the subsequent seizure of the ammunition. The State urged that we remand that issue to the judge to make further findings since it was not previously raised below and not considered by the judge. We reject this suggestion. It is unclear whether defendant raised the issue more succinctly below or not, and the judge did not specifically address it. However, the record and the judge's findings are sufficiently clear to permit us to decide a purely legal question. See State v. Barry, 86 N.J. 80, 87 (1981)(holding "[t]he inquiry for determining whether a defendant's statements are tainted by antecedent illegality is not a factual one . . . but rather is a question of judgment."), cert. denied, Barry v. New Jersey, 454 U.S. 1017, 102 S. Ct. 553, 70 L. Ed. 2d 415 (1981).

(continued)

(continued)

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A-3175-07T4

November 6, 2008