STATE OF NEW JERSEY v. THOMAS ROBINSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6209-05T46209-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS ROBINSON,

Defendant-Appellant.

_____________________________

 

Submitted September 23, 2008 - Decided

Before Judges Collester and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

04-11-1930.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Abby P. Schwartz, Assistant

Deputy Public Defender, of counsel and on the

brief).

Anne Milgram, Attorney General, attorney for

respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On November 16, 2004, a twenty-three count indictment was returned against defendant Thomas Robinson for a second-degree robbery, contrary to N.J.S.A. 2C:15-1; four counts of aggravated assault upon a law enforcement officer, contrary to N.J.S.A. 2C:12-1b(5)(a); four counts of second-degree aggravated assault by causing or attempting to cause serious bodily injury to another, contrary to N.J.S.A. 2C:12-1b(1); third-degree aggravated assault by causing or attempting to cause bodily injury to another with a deadly weapon, contrary to N.J.S.A. 2C:12-1b(2); four counts of third-degree aggravated assault by causing or attempting to cause significant bodily injury to another, contrary to N.J.S.A. 2C:12-1b(7); second-degree disarming of law enforcement officer, contrary to N.J.S.A. 2C:12-11a; two counts of third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a; three counts of possession of a weapon, namely mace, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and three counts of fourth-degree possession of a weapon, namely mace, under circumstances not manifestly appropriate for such lawful uses as it may have, contrary to N.J.S.A. 2C:39-5d.

Defendant made a motion to suppress evidence seized at the time of his arrest as well as incriminatory statements allegedly made by him subsequent to arrest. Following an evidentiary hearing, Judge Kevin G. Callahan denied defendant's motion. Thereafter, on April 18, 2005, defendant appeared before Judge John A. O'Shaughnessy, and pursuant to a negotiated plea agreement, entered a plea of guilty to second-degree robbery, three counts of third-degree aggravated assault, and second-degree disarming a police officer. Defendant was sentenced on June 17, 2005, to an aggregate term of eight years with an eighty-five percent parole disqualifier under the No Early Release Act (NERA).

Pursuant to Rule 3:5-7(d), defendant appeals the denial of his motion to suppress evidence. He argues the following:

POINT I - THE COURT BELOW ERRED IN FINDING THAT THE CONDUCT OF THE POLICE DID NOT VIOLATE DEFENDANT'S RIGHT TO BE FREE OF ILLEGAL SEARCHES AND SEIZURES. THE ARREST OF DEFENDANT, THE SEARCH OF GOODWIN'S HOUSE, AND DEFENDANT'S STATEMENTS WERE THE "FRUITS" OF AN ILLEGAL ARREST. THEREFORE, THE ORDER DENYING THE SUPPRESSION OF THE STATEMENTS MUST BE REVERSED. U.S. CONST., AMENDS. IV, XIV, N.J. CONST. ART. I, PAR. 7.

Sergeant Michael Kenny was the only witness at the suppression hearing. His factual narrative was as follows. On August 13, 2004, Sergeant Kenny and his partner, Officer Vincent Wolleon, were notified by police radio of a man screaming for help at a convenience store located at 2375 Kennedy Boulevard in Jersey City. As they were driving to the store, they received two further calls from the dispatcher indicating first that there was an armed robbery in progress and then that there had been a robbery at the store. When Kenny and Wolleon arrived, Officers Robateau and Traynor were already there. They had received a description given by the victim, Mohammed Hassanein, of a black male about forty years old wearing a black hooded sweatshirt and dark blue jeans. Mohammed said the man walked up to the cash register without saying a word, sprayed him in the face with mace, grabbed an unknown amount of money from the register and fled. Mohammed told them he could identify the robber because he had been in the store previously. While he did not know the robber's name, he knew that he was dating a woman named Bobo, who lived around the corner from the store at 192 Clinton Avenue.

Kenny and Wolleon took the victim to 192 Clinton Avenue, and after speaking to people sitting outside the building, they determined that Bobo lived in apartment 2G. Robateau and Traynor were detailed to the back of the building in case someone fled. Officers Kenny, Wolleon and the victim then went up to apartment 2G and knocked on the door. The woman known as Bobo, whose real name is Dorothy Goodwin, answered the door, and the defendant was standing behind her. Mohammed saw the defendant and immediately said, "that's the guy."

As Kenny and Wolleon attempted to take the defendant into custody, there was a struggle. Defendant grabbed Wolleon and threw him against the wall. As Kenny tried to radio for help, the defendant swatted the radio out of his hand, and the two men started wrestling with each other. Defendant tried to take Kenny's gun out of the holster as the struggle continued on into the kitchen where defendant grabbed a butcher knife from the sink. Wolleon banged defendant's arm against the counter, knocking the knife out of his hand. Defendant continued to resist, and Kenny was burned after being pushed into the lit gas stove.

Meanwhile, Officers Traynor and Robateau ran up the fire escape, entered the apartment and tried to subdue the defendant. The defendant grabbed a glass coffee pot and tried to strike Traynor in the head. He missed and wound up breaking the pot against an overhead cabinet. The defendant then tried to strike Officers Kenny and Robateau with the broken coffee pot. Finally, an additional police unit forced the apartment door open and were able to handcuff defendant.

Defendant was advised of his Miranda rights and transported to police headquarters. When he arrived, he complained of dizziness, explaining that he had been drinking and smoking crack cocaine all day. Along with defendant, the officers involved in the incident went to Jersey City Medical Center for treatment of injuries sustained. Kenny suffered a strained tendon in his right hand, scratches on the side of his face and a burn mark on his elbow. Defendant injured his head when he banged it on the top of the stove. While they were in the waiting area of the emergency room, the defendant, who was in handcuffs and seated down the hall, started shaking his head and said, "I'm sorry. I didn't mean to do that. I didn't mean to hurt yous [sic]. I didn't mean to do it. I was smoking cocaine. My girlfriend made me do it. I don't know why I did that to Mohammed."

Subsequent to the defendant's arrest, the police recovered a leather case designed to hold mace as well as the broken coffee pot and butcher knife used as weapons by defendant. The argument presented by defendant at the motion to suppress was that these items as well as his post-arrest statements should be suppressed as the search did not fall within one of the exceptions to the requirement of a search warrant. In ruling on the application, Judge Callahan stated:

Now, defense has also stated that there should not have been an entry into the apartment because exigent circumstances had been created by the police themselves, but this court disagrees with that position and the case that was submitted, State vs. De La Paz, 337 N.J. Super. 181 (App. Div.). Factually, here the police officers are in pursuit. They are following up on an investigation and doing this and simply went to the apartment because they were directed to go there after they had by the alleged victim, and also by further investigation. So, they were well within their rights to knock on the door and determine whether or not whether they could question anybody inside where Mr. Robinson was.

They were not going in there to arrest Mr. Robinson because they had no reason to believe that Mr. Robinson lived there. However, they were looking for Dorothy Goodwin, who was not a suspect, and merely was believed to the police officers absolutely had the right to be present. And when, having the alleged victim behind them, the door was opened and they are told spontaneously, "that's the man," they had an obligation and they had the right under their caretaking functions, under their hot pursuit incident to a lawful arrest to seize the person even though he is inside the apartment.

So, they had absolute if they did not do that, given the fact that this had been a violent crime that was committed, you know, a brazen robbery of the person in the store not violent against the individual, but potentially a case that could have evolved into even greater incident the police officers did not have to seek a warrant to enter that apartment. The exigency was totally created by the ongoing immediate investigation of the robbery. And so, consequently, the police officers were well within their rights. . . .

The police officers had the right to simply enter the apartment to detain the defendant. And at this point in time, it would have been unnecessary for them to go through the procedures of somehow trying to obtain a search warrant and sealing off the apartment when they had everything right in plain view and were lawfully on the premises and could lawfully enter.

It is well settled that all warrantless searches and seizures are presumptively unreasonable. State v. Elders, 192 N.J. 224, 246 (2007). A warrantless search is valid only if supported by probable cause and falls within one of the few well-delineated exceptions to the warrant requirement. State v. Pineiro, 181 N.J. 13, 19-20 (2004); State v. Maryland, 167 N.J. 471, 482 (2001). In this instance, the exception relied upon by the State is the so-called exigent circumstances requiring the police to dispense with the warrant requirement due to the need for immediate action. See State v. DeLuca, 168 N.J. 626, 632-34 (2001); State v. Cooke, 163 N.J. 657, 646 (2000); State v. Alvarez, 238 N.J. Super. 560, 567-72 (App. Div. 1990). The determination as to whether the search may be justified under exigent circumstances is a fact-sensitive inquiry. State v. Nishina, 175 N.J. 502, 516-17 (2003).

While there is no all-inclusive definition of exigent circumstances, certain factors should be considered in determining whether the warrant requirement may be dispensed with due to the need for immediate police action. Among the factors are: the degree of urgency and the time necessary to obtain a warrant; whether the location may be placed under surveillance while a warrant is obtained; the possibility of danger to police officers guarding the site while the warrant is sought; the reasonable belief that evidence will be destroyed or removed from the scene; the gravity of the offense, or weakness of the showing of probable cause; and whether the exigent circumstances are "police-created" and designed to make a suspect act in a way that would justify a warrantless search. State v. Wilson, 362 N.J. Super. 319, 332 (App. Div.), certif. denied, 178 N.J. 250 (2003); Alvarez, supra, 238 N.J. Super. at 568.

Judge Callahan found that the police action was justified under exigent circumstances because they were in hot pursuit of the defendant. If police are in hot pursuit of a suspect who enters a building or home, the police may enter the premises to search for the individual without a warrant to prevent escape. Warden v. Hayden, 387 U.S. 294, 299, 87 S. Ct. 1642, 1646, 18 L. Ed. 2d 782, 787 (1967); see State v. Jones, 143 N.J. 4, 16-17 (1995); State v. Josey, 290 N.J. Super. 17, 25 (App. Div. 1996). Defendant argues that exigent circumstances did not justify a warrantless arrest because police had sufficient time to obtain an arrest warrant prior to entering the Goodwin apartment. However, the facts as testified to by Sergeant Kenny and accepted by the trial judge do not comport with the defense position. First, Mohammed did not know the name of the man who robbed him. He only knew he had a girlfriend named Bobo living in a nearby building. Obviously, an arrest warrant could not be obtained pending further investigation. Moreover, when they obtained the correct apartment number for Dorothy Goodwin, they had no evidence or probable cause that defendant was in the apartment. It was not until Goodwin opened the door and Mohammed identified the defendant as the person who robbed him that the police could lawfully enter the apartment to make the arrest.

On appeal, the defendant does not argue that any exigent circumstances were police created, although that position was taken before Judge Callahan. In State v. Hutchins, 116 N.J. 457, 460 (1989), the Supreme Court stressed that the police may not "impermissively" create the exigency to justify a warrantless search under the guise of investigating criminal activity. Id. at 460-76. The instant case is similar to State v. Stanton, 265 N.J. Super. 383, 386 (App. Div. 1993), in which the police received an anonymous tip advising them that the defendant was selling narcotics out of a motel room. Since the information was insufficient to obtain a search warrant, the police went to the motel and knocked on the defendant's door. When the defendant pulled back the drapes to his room, the police observed drugs in plain view. They then conducted a warrantless search and seized the drugs in the room. We held that choosing to have an officer knock on the door as opposed to conducting surveillance or attempting a controlled buy was a reasonable investigative procedure by the police justifying action on the consequent exigency.

The instant case is even stronger than Stanton in justifying a warrantless search. Here the police did not know defendant was in Goodwin's apartment and were conducting their investigation when they knocked on her door. To be sure, officers were assigned to the rear of the building in case the defendant was in the apartment and chose to flee out the back, but the fact that the police were guarding against that possibility does not indicate impermissible creation of a exigency. To the contrary, it indicates proper police procedures.

 
Affirmed.

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

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A-6209-05T4

April 1, 2009