STATE OF NEW JERSEY v. ALTIRICK GOLDSMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1999-07T41999-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALTIRICK GOLDSMITH,

Defendant-Appellant.

__________________________________________

 

Submitted February 22, 2010 - Decided

Before Judges Rodr guez and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-3890.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Stalford, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After defendant Altirick Goldsmith's motion to suppress evidence was denied, he entered a negotiated plea of guilty to third degree possession of CDS, N.J.S.A. 2C:35-10a. The State agreed to recommend dismissal of related charges and to a "time served/probation" recommendation. The judge imposed a probationary three year term with a special condition of 270 days in jail, which defendant had already served; to remain employed; follow through with counseling at the Bethel Counseling Center; urine screening; and to remain drug free.

The proofs presented at the hearing on the motion to suppress evidence can be summarized as follows. On August 11, 2006, three detectives from the Newark Police Department's Fugitive Apprehension Unit executed an arrest warrant for co-defendant Shawntay Thompson at her apartment located in a building on Grove Street. The warrant was based on a charge of possession of three envelopes of heroin. Detective Fletcher testified at the hearing that he obtained the arrest warrant that same day. Together with Detectives Pracher and Froster, they went to Thompson's apartment on Grove Street. Detective Fletcher knocked on the apartment door. Thompson answered. He advised Thompson that he had a warrant for her arrest.

Thompson was not completely dressed. She requested time to get properly dressed. The detectives agreed. As Thompson stepped back into her apartment, she left the door partially opened. Fletcher saw defendant in the apartment. Defendant was moving from the front room toward the bedroom. The detectives, who were then still in the hallway, then stepped into the apartment without giving any indication of their intention or requesting permission to enter the premises.

After entering the apartment, the detectives saw a trail of empty red baggies leading from the front room to the bedroom. The detectives followed Thompson and defendant into the bedroom. They entered the bedroom. In the bedroom, the detectives saw empty red and peach plastic baggies, a clear plastic baggie containing a substance suspected to be cocaine and a razor sitting on a plate toward the edge of the bed. Froster took possession of the suspected cocaine and paraphernalia. As he did so, he observed two handguns protruding from underneath the bed. Froster seized the suspected cocaine, paraphernalia and guns.

At the conclusion of the motion to suppress hearing, the judge found that the testimony of the police officer was credible. She concluded that they had the right to enter the apartment. According to the judge, once they saw defendant "scurry past with what was characterized as suspicious . . . behavior," the detectives had a right to enter and seize the drugs that were in plain view.

On appeal, defendant contends:

THE POLICE ENTRY INTO THE CO-DEFENDANT'S [SHAWNTAY THOMPSON] APARTMENT CONSTITUTED AN UNLAWFUL SEARCH[;] THEREFORE[,] THE EVIDENCE SEIZED FOLLOWING THE ENTRY SHOULD HAVE BEEN SUPPRESSED.

We disagree and affirm the denial of the motion to suppress.

The Fourth Amendment to the United States Constitution, as well as Article I, paragraph 7 of the New Jersey Constitution, protects an individual against unreasonable searches and seizures. U.S. Const. Amend. IV, N.J. Const. Art. 1, 7. However, it is not unreasonable for an arresting officer to maintain custody over an arrestee, absent an affirmative indication that the arrestee might have a weapon available or might attempt to escape. Pennsylvania v. Mimms, 434 U.S. 106, 109-110, 98 S. Ct. 330, 332-33, 54 L. Ed. 2d 331, 335-37 (1977).

In 1982, the United States Supreme Court solidified this right in Washington v. Chrisman, 455 U.S. 1, 5-7, 102 S. Ct. 816-17, 70 L. Ed. 2d 784-85 (1982), where an officer accompanied a college student to his dorm room to obtain identification. In Chrisman, the arresting officer was initially waiting by the door of the room while executing an arrest. Id. at 3, 102 S. Ct. at 815, 70 L. Ed. 2d at 783. When the officer observed the student's roommate, Chrisman, acting nervously, he entered the room to find contraband in plain view. Id. at 4, 102 S. Ct. at 815, 70 L. Ed. 2d at 784. The Supreme Court held that an officer has the right to remain at an arrestee's elbow and this right is not extinguished if an officer hesitates before subsequently following the arrestee. Id. at 8-9, 102 S. Ct. at 817-18, 70 L. Ed. 2d at 786-87.

In State v. Bruzzese, 94 N.J. 210, 232 (1983), the New Jersey Supreme Court found this rule to be equally applicable in this State. The Court highlighted that an officer need not explain a special need for accompanying a defendant as long as the arrest itself was warranted. Id. The court must evaluate the objective facts available to the officer at the time instead of focusing on his or her subjective motives. Id. at 219. Objectively, an officer cannot predict if an arrestee may have a concealed weapon, will try to escape or may destroy evidence. Id. at 233-34. Accompaniment is a minor intrusion on the privacy interests of an arrestee in comparison to the risk to the officer involved. Id. at 232.

While at the defendant's elbow, an officer is also permitted to conduct a limited protective sweep of the area. Maryland v. Buie, 494 U.S. 325, 334-36, 110 S. Ct. 1093, 1098-99, 108 L. Ed. 2d 276, 286-87 (1990). Constant surveillance of an arrestee, as a precautionary measure, is permissible and the officer can search the area surrounding an arrest from which an attack could be immediately launched. Ibid. This sweep does not have to be predicated on probable cause or reasonable suspicion, but is a limited precautionary move. Id. at 334, 110 S. Ct. at 1098, 108 L. Ed. 2d at 286. Further, the Supreme Court distinguished an encounter on the street and an in-home arrest. Id. at 333, 110 S. Ct. at 1097-98, 108 L. Ed. 2d at 285. An in-home arrest puts the officer at a disadvantage for they are in an environment entirely controlled by their adversary. Ibid. This creates a heightened sense of insecurity that necessitates measure to maintain the officer's safety. Ibid. Thus, based on these authorities, we conclude that the officers acted reasonably. They saw in plain view, in an area where they had the right to be, contraband.

Defendant also contends that:

THE JUDGMENT OF CONVICTION SHOULD BE AMENDED TO REFLECT JAIL CREDIT FOR THE PERIOD DEFENDANT SPENT IN CUSTODY PRIOR TO SENTENCING ON THIS INDICTMENT.

The State concedes that the jail days credit is not reflected in the judgment of conviction. The judge's sentence clearly indicates that defendant is entitled to a 270 jail credit days from August 11, 2006 to May 7, 2007.

 
Accordingly the conviction and sentence are affirmed, however, the matter is remanded to the Law Division, Criminal Part Essex County for the entry of a corrected judgment.

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A-1999-07T4

August 19, 2010