STATE OF NEW JERSEY v. ANDRE SCOTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1787-07T41787-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE SCOTT,

Defendant-Appellant.

_________________________________________________

 

Argued October 1, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

07-03-0986.

Michael Noriega, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Noriega, on the brief).

Steven A. Yomtov, Deputy Attorney General,

argued the cause for respondent (Anne

Milgram, Attorney General, attorney; Mr.

Yomtov, of counsel and on the brief).

PER CURIAM

After drugs were found in a bedroom occupied by defendant, Andre Scott, and his girlfriend, Shalis Taylor, both were indicted for the third-degree crimes of conspiracy to violate the narcotics laws, N.J.S.A. 2C:5-2; possession of cocaine, N.J.S.A. 2C:35-10a(1); possession of cocaine with the intent to distribute it, N.J.S.A. 2C:35-5a(1) and b(3); and possession of cocaine with the intent to distribute it within 1,000 feet of a school zone, N.J.S.A. 2C:35-7. In a suppression motion, Scott challenged the police's warrantless entry into the premises where the drugs were found and their seizure of the drugs. However, following a hearing, his motion was denied. Thereafter, defendant pled guilty to third-degree possession of cocaine, and he was sentenced to 364 days in jail as a condition of three years of probation, time served.

Defendant has appealed the denial of his suppression motion arguing:

POINT ONE

THE "PLAIN VIEW" DOCTRINE DOES NOT EXCUSE LAW ENFORCEMENT'S NEED FOR PROBABLE CAUSE AND AN EXIGENCY BEFORE CONDUCTING A WARRANTLESS SEARCH OF A PRIVATE RESIDENCE; THE SEIZURE OF EVIDENCE WAS ILLEGAL AND THE LOWER COURT DECISION SHOULD BE REVERSED.

We agree with defendant's arguments and reverse the order denying suppression of the evidence seized by the police in this case.

At the suppression hearing, testimony was given by Eva Martin, the owner of the two-family house where defendant and the drugs were found, and by police officers Lester Wilson and Ana Perez. The testimony disclosed that, in the early afternoon of November 6, 2006, two women standing outside of a residence located at 24 Augusta Street in Irvington were arrested for selling drugs. As the second woman was being handcuffed, Martin exited the residence to obtain her mail. When she was asked by the police if she knew the identities of the two women, Martin responded that one was her daughter and the other was her daughter-in-law. Additionally, she told the police that the women used the building's porch for their drug dealing, but a resultant search disclosed no drugs.

As Martin was standing in the doorway of the house facing the street, a man walked quickly from the interior of the house past her, squeezing between her and the door frame. According to Martin, the police commanded the man to "hold it," and he stopped. Officer Wilson testified that, as the man passed through the doorway, Martin stated in a "frantic" voice, "no, no, where did he come from? I don't know him." Martin testified that the man initially stated that he had come from "up there." However, when Martin stated that he was lying because she lived upstairs, and no one had entered her premises, the man stated that he had stopped by to see his friend and the friend's girlfriend on the first floor. When asked, the man was unable to give the names of the persons that he had just visited.

In response to police questioning, the man identified himself as Amir Bullock, and he gave his social security number. When asked if there were any outstanding warrants for his arrest, Bullock replied "no" but stated that he had unpaid parking tickets. According to Officer Wilson, at the time he was stopped, Bullock was not carrying either burglar's tools or the spoils of a burglary, he was not disheveled, and he had no bloodstains on him. Bullock was nonetheless detained, but he was not arrested. Backup officers were assigned to watch Bullock, and according to Martin, Officer Wilson announced that he was "going inside." He did not seek Martin's or any other person's permission to do so.

Officer Wilson testified that, at this point, he looked down the first-floor hallway and saw two open doorways, one to the first-floor apartment, and the other to the stairs leading to the second floor. Wilson entered the first-floor apartment, announcing, as he did so, that he was a police officer and asking if anyone was home. He received no answer to that or to subsequent similar queries. When asked why he entered the apartment, Wilson stated that he found Bullock's inability to identify the people he had visited to be suspicious, and he wanted to see if someone in the apartment could vouch for him. Wilson testified: "I figured everything could be wrapped up if I found somebody on the first floor to say, yeah, he came to visit me. We're done, and we on our way." Wilson admitted:

At that point, I didn't believe that [Bullock] committed a crime. It was just a lot of inconsistencies. I didn't know what had transpired . . . .

Before entering the apartment, Wilson did not check for signs of forced entry. Once inside, he found no evidence of the commission of a crime or other disturbance. Nonetheless, he, along with Officer Perez, quickly walked through the living room, the kitchen, and a bedroom.

Encountering a closed door at the back of the apartment, and hearing noises inside of people moving from one side of the room to the other and of drawers closing, Wilson knocked, and upon receiving no answer, he commenced to enter just as an occupant of the room, defendant Scott, simultaneously opened the door. Wilson testified:

I remember speaking to [Scott] upon entering the room to see my main purpose focus was to see if he knew that individual. We didn't go there to investigate anything else. Our report, our investigation was wrapped up outside. We just went in there to see if somebody could identify Mr. Bullock. He was the first person that I came upon, and if he said, yeah, I knew this guy, then we were done, and we were out of there.

When Scott was unable to identify Bullock, Officers Wilson and Perez walked further into the bedroom and observed Taylor sitting on the bed. At this point, Perez pointed out a brown paper bag on the nightstand with drug packaging materials spilling from it. She looked inside and discovered eleven packages of cocaine. Scott and Taylor were thereupon arrested. Bullock was subsequently identified by Taylor and released.

At the conclusion of the hearing, the motion judge found Martin's testimony to be credible, but unimportant. The judge additionally found that it was reasonable for the police to investigate when Bullock, who was quickly leaving the building, could not identify whom he had been visiting. Resolving a conflict between the testimony of Martin and Wilson as to whether the door to the first-floor apartment was open by finding that it was open, the judge additionally held that the police had a "duty to investigate" a wide-open apartment from which someone had exited who did not belong there. The judge stated:

I'm not satisfied that Ms. Martin was in a position that she was able to testify that she . . . could see that the door was closed [from] where she was. I believe the officers went to the first floor apartment, saw a door that was opened.

[W]hen they find the door opened . . . they made every effort to find out whether anyone was in the apartment, who was there, what was going on. They, apparently, called out police. No one responded, whatsoever to a wide open apartment, in the position where someone had just recently exited, who does not . . . belong there. I think they had a duty to investigate, at least, what had taken place in that apartment, or what that person had been doing there.

The judge did not address the police's entry into the bedroom occupied by Scott and Taylor, except to hold that once Scott denied knowing Bullock, the police had a right to question Taylor. The drugs, the judge found, were in plain view. The judge did not otherwise specify what exception to the warrant requirement applied to the matter, and he cited to no precedent in support of his decision to deny suppression.

We defer to the trial court's factual findings in this matter, finding them to have been adequately supported by the testimony presented at the suppression hearing. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). We owe no deference to the legal conclusions drawn by the motion judge from those facts. Ibid.

Our analysis of this matter commences with the recognition that both the State and Federal Constitutions prohibit warrantless searches of homes unless justified by one or more of the exceptions to the warrant requirement recognized by precedent. State v. Hill, 115 N.J. 169, 173 (1989) (listing exceptions). The State bears the burden of proving the validity of a warrantless search. State v. Wilson, 178 N.J. 7, 12-13 (2003).

The State justifies the warrantless entry of the police officers into the first-floor apartment as a part of their community caretaking function. However, as the quoted portion of the judge's opinion illustrates, the motion judge found that the police's community caretaking function arose only after they observed the open door to the first floor apartment an observation necessarily made from the building's hallway, since the judge found that the building's owner, Martin, was unable to see the doorway from her vantage point at the entrance to the residence. Nothing in the record suggests that the police had any authorization to enter the hallway, either from Martin or from a first-floor resident. Their presence in that hallway thus violated the Fourth Amendment. Compare Cleveland, supra, 371 N.J. Super. at 300 (noting that the police were admitted as guests of another tenant and thus were legally in the hallways); see also United States v. Taylor, 248 F.3d 506, 511-12 (6th Cir.), cert. denied, 534 U.S. 981, 122 S. Ct. 414, 151 L. Ed. 2d 315 (2001) (distinguishing between legal invitation into common areas and illegal entry by subterfuge).

A further question arises in the circumstances presented as to whether the police's community caretaking function arose at the time they observed Bullock rapidly leaving the premises and determined that he was unable or unwilling to name the persons whom he had been visiting. As the Supreme Court recently stated:

Courts have allowed warrantless searches under the Fourth Amendment when police officers have acted not in their law enforcement or criminal investigatory role, but rather in a community caretaking function. See, e.g., Cady v. Dombrowski, 413 U.S. 433, 439-48, 93 S. Ct. 2523, 2527-31, 37 L. Ed. 2d 706, 713-18 (1973). In today's society, police officers perform "dual roles." State v. Diloreto, 180 N.J. 264, 276 (2004). On the one hand, they carry out traditional law enforcement functions, such as investigating crimes and arresting perpetrators. Ibid. (citation omitted). On the other hand, police officers perform a wide range of social services, such as aiding those in danger of harm, preserving property, and "creat[ing] and maintain[ing] a feeling of security in the community."

[State v. Bogan, 200 N.J. 61, 73 (2009) (citation omitted).]

See also, e.g., State v. Diloreto, 180 N.J. 264, 275-77 (2004) (holding warrantless pat-down of man before placing him in a police car while awaiting confirmation that he was an endangered missing person to be reasonable); State v. Garbin, 325 N.J. Super. 521, 525-27 (App. Div. 1999) (finding warrantless search of garage reasonable when officers' observation of smoke emanating from it and the wheels of defendant's truck rapidly spinning provided a reasonable basis for concern that something was wrong either with the vehicle or the driver), certif. denied, 164 N.J. 560 (2000); State v. Navarro, 310 N.J. Super. 104, 108-10 (App. Div.) (finding police acted reasonably in accompanying landlady while she retrieved a gun she had found in her tenant's room, after she told the police that there were several children living in the apartment, and she wanted to determine whether the gun was real or a toy), certif. denied, 156 N.J. 382 (1998).

In State v. Faretra, 330 N.J. Super. 527 (App. Div.), certif. denied, 165 N.J. 530 (2000), we held that the community caretaker exception to the warrant requirement justified a warrantless search of a garage by the police after being informed that the garage had just been burglarized and that the burglar was walking down the street carrying his spoils in a cardboard box, after stopping a suspect carrying a box and discovering car radios inside, and after noting that the door to the garage in question had a panel pushed in. There, we found that the police had authority "to enter private premises when the police reasonably believe that a crime is taking place or has just taken place, for the limited purposes 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." Id. at 531-32.

In contrast to Faretra, where the police had ample evidence of the recent commission of a garage burglary, in the present case, Officer Wilson testified merely that he found Bullock's inability to identify the persons whom he had visited to be "suspicious" and that at the time he entered the first-floor apartment, he did not believe that Bullock had committed a crime. Moreover, evidence of criminal activity was lacking. When Bullock exited the building, he was not carrying either burglary tools or household items, and his appearance was unexceptionable. Although Bullock did not identify those whom he had visited, in response to police questioning, he provided his own name and other identifying information. No evidence of forced entry was apparent to the police as they entered the apartment, and their walk through the living room, kitchen and unoccupied bedroom disclosed no evidence of criminal activity.

We find these facts to be insufficient to establish as reasonable the police's claimed exercise of their caretaking function.

As a final matter, we conclude, in the absence of any evidence of criminal or otherwise untoward activity, that the State has failed to meet its burden of demonstrating the validity of the police's entry into the bedroom in which defendant and his girlfriend were found, which the police justified as part of the its effort to find someone who could vouch for Bullock. We recognize that entry may not have been sought in order to search the room, and thus that defendant's permission to enter would have been sufficient to permit entry by the police. State v. Padilla, 321 N.J. Super. 96, 108 (App. Div. 1999), aff'd o.b., 163 N.J. 3 (2000). However, there is no evidence in the record that such permission was granted. Because the police were not lawfully in the bedroom, no legal basis existed for the police's subsequent visual observation of Taylor or of the drugs located on the nightstand. State v. Bruzzese, 94 N.J. 210, 235-36 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

In summary, we conclude that the State has failed to meet its burden of proving that it was reasonably fulfilling its community caretaking function when it entered, first, the building owned by Martin, second, the first-floor apartment in that building and, third, the bedroom occupied by defendant and Taylor. We further conclude that because the police were not lawfully on the premises, their invocation of the plain view exception to the warrant requirement as justification for seizure of the drugs found on the bedroom nightstand fails.

 
Reversed.

(continued)

(continued)

13

A-1787-07T4

November 17, 2009