STATE OF NEW JERSEY v. CHRISTINE LOWRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2270-08T42270-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTINE LOWRY,

Defendant-Appellant.

_______________________________________

Argued June 7, 2010 - Decided July 6, 2010

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4737.

John Vincent Saykanic argued the cause for appellant.

Marc A. Festa, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Festa, of counsel and on the brief).

PER CURIAM

Defendant Christine Lowry appeals from an order entered by the Law Division on December 17, 2008, which affirmed her municipal court convictions for driving while intoxicated (DWI) and certain other offenses. We affirm.

I.

This appeal arises from the following facts. On July 25, 2007, police officers in the Township of Wayne issued five municipal court summonses to defendant. She was charged with careless driving, N.J.S.A. 39:4-97; leaving the scene of an accident, N.J.S.A. 39:4-129; failure to report an accident, N.J.S.A. 39:4-130; DWI, N.J.S.A. 39:4-50; and driving with a suspended driver's license, N.J.S.A. 39:3-40. Prior to trial, defendant filed a motion to suppress evidence obtained by the police.

On November 16, 2007, the municipal court judge conducted an evidentiary hearing on defendant's motion. At the hearing, Dominick Staiano, Jr. (Staiano) testified that, on July 25, 2007, at approximately midnight, he was driving on the Hamburg Turnpike in Wayne. Staiano observed an overturned vehicle, with its wheels spinning.

Staiano stopped his vehicle and saw defendant crawling out of the overturned car on the passenger's side. Staiano said that she was dazed, bleeding, and smelled of alcohol. Staiano told defendant that he would call the police, but she asked him not to do so and walked away. Staiano thought that defendant may have been in shock.

A short time later, Officer Rick Vanderclock (Vanderclock) of the Wayne Police Department (WPD) arrived on the scene. He testified that he saw a vehicle that had turned upside down. The car had struck a utility pole which was "dangling over the roadway." A witness told him that the driver had walked away from the scene of the accident. The witness gave Vanderclock a physical description of the driver, which he relayed by radio to other patrol units who were en route to the accident scene.

Vanderclock testified that he looked inside the overturned car. There, he found a purse, which contained the driver's license. Vanderclock said that "there was a lot of blood in the vehicle[.]" He believed that the driver had been injured in the accident. Vanderclock was told that the driver had walked in the direction of a nearby store, and he instructed another officer to attempt to locate the driver there.

Vanderclock then had the dispatcher contact the Pompton Lakes Police Department (PLPD) because the driver's license indicated that the driver resided there. The Pompton Lakes police were provided with defendant's name, address and physical description and told that defendant had fled from the scene of the accident on foot and may be injured.

Sergeant Alfonse Strumalo (Strumalo) of the WPD arrived on the scene. He testified that defendant's vehicle had struck a utility pole. Vanderclock provided him with the address of defendant's residence, which was within a mile of the scene of the accident. Strumalo went to defendant's home and arrived there around 1:00 a.m. He met Patrolman Jonathan Williams (Williams) from the PLPD and Patrolman John Bloom from Riverdale. Strumalo told Williams that there had been a serious accident with injuries and a report that a woman who left the scene was bleeding. He said he was looking to find the driver and speak with her.

The officers rang the door bell at defendant's residence. Strumalo observed a shadow in the window. He stated that it appeared to be the shadow of a man pacing back and forth. Strumalo testified that "it just seemed weird at [that] hour . . . that someone was pacing[.]" He stated that "it seemed like" something was "wrong in the house." The officers rang the door bell and knocked on the door for a minute or so.

A man in his late twenties or early thirties opened the door. The officers asked the man whether defendant was at home. The man said that defendant was home but she was in bed. The officers asked the man whether they could speak to her, and the man replied that they could. The man started walking up the stairs and left the door opened. Williams noticed a smudge that appeared to be blood on the wall near the stairs. Strumalo testified that he decided that the police had "to go in."

The officers got to the top of the stairs and, in a bedroom, they found defendant lying on a bed. The officers asked defendant about the location of her car. Defendant replied that her car was on the Hamburg Turnpike. Strumalo testified that defendant's eyes were watery and it appeared that she might be intoxicated. Williams testified that he observed blood on defendant's shirt.

Strumalo stated that defendant told him she had "a few scrapes." She showed him a cut on her leg. He asked defendant whether she required an ambulance "or anything like that," and defendant said that she did not need an ambulance. He asked her whether she would accompany him back to her vehicle. According to Strumalo, defendant "willingly said" that she would do so.

Defendant put on her shoes and she walked out with the officers to Strumalo's vehicle. He drove her back to the scene. Williams followed in his police car. Defendant was not handcuffed or detained. At no point did she tell the officers that she did not want to go with them to the accident scene.

On November 28, 2007, the municipal court judge rendered a decision from the bench and denied defendant's motion to suppress. Defendant's municipal court trial began on February 29, 2008. Vanderclock testified that that, when defendant returned to the scene of the accident, he observed that her face was flushed and her eyes were bloodshot and watery. Vanderclock observed cuts and scrapes on defendant's body. He saw blood, as well. He asked her if she was injured. She stated that she was not.

Vanderclock said that he detected a strong odor of an alcoholic beverage coming from defendant. He believed that she might be intoxicated and decided to conduct field sobriety tests. Defendant did not pass any of the tests. Vanderclock provided defendant with Miranda warnings and placed her under arrest. Defendant was placed in an ambulance and transported to a hospital.

Rather than completing the trial, defendant entered a conditional guilty plea. She was found guilty of DWI, failure to report an accident, careless driving and leaving the scene of an accident. The driving-while-suspended charge was dismissed pursuant to the plea agreement. After merging certain charges, the municipal court judge ordered a two-year suspension of defendant's driving privileges; imposed a forty-eight hour jail term, to be served at an Intoxicated Driver Resource Center; required defendant to provide thirty days of community service; ordered that defendant use an ignition interlock for two years; and assessed appropriate fines and costs.

Defendant filed an appeal to the Law Division and argued that the municipal court erred by denying her motion to suppress. The court filed a written opinion dated December 17, 2008, in which it concluded that the officers' warrantless entry into defendant' home was justified by the "emergency aid" doctrine. The court additionally found that defendant had voluntarily consented to return with the police to the accident scene.

The court entered an order dated December 17, 2008, affirming defendant's convictions and the sentence imposed. This appeal followed. Defendant raises the following issues for our consideration:

POINT I

THIS WARRANTLESS HOME ENTRY CANNOT BE SUPPORTED AS AN EXIGENCY STEMMING FROM A NEED TO GIVE EMERGENCY AID, MANDATING A REVERSAL OF THE LAW DIVISION DECISION AND DISMISSAL OF THE CHARGES

SUBPOINT A

THERE WAS NO OBJECTIVE EMERGENCY IN THIS CASE

SUBPOINT B

POLICE WERE MOTIVATED HERE BY THE DESIRE TO FIND EVIDENCE AGAINST DEFENDANT FOR DRIVING WHILE INTOXICATED

SUBPOINT C

HOT PURSUIT DOES NOT JUSTIFY THE WARRANTLESS ENTRY INTO THE DEFENDANT'S HOME

POINT II

DEFENDANT WAS ARRESTED INSIDE OF HER HOME AND THE STATE FAILED TO DEMONSTRATE DEFENDANT CONSENTED TO ACCOMPANY THE POLICE TO THE SCENE

POINT III

THE DEFENDANT SHOULD HAVE BEEN GIVEN THE RIGHT TO REFUSE TO ACCOMPANY THE OFFICERS BACK TO THE ACCIDENT SCENE

II.

Defendant argues that the trial court erred by refusing to suppress the evidence obtained after the warrantless entry into her home. In our view, this contention is without merit.

"Under the Fourth Amendment of the Federal Constitution and Article 1, Paragraph 7 of our State Constitution, judicially-authorized search warrants are strongly preferred before law enforcement officers conduct a search, particularly of a home." State v. Johnson, 193 N.J. 528, 552 (2008). "Therefore, when the police act without a warrant, the State bears the burden of proving by a preponderance of the evidence not only that the search or seizure was premised on probable cause, but also that it 'f[ell] within one of the few well-delineated exceptions to the warrant requirement.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)) (alteration in original). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160, L. Ed.2d 128 (2004).

Our courts have "adopted a three-prong test to determine whether a warrantless search by a public safety official is justified under the emergency aid doctrine." Id. at 600.

Under that test, the public safety official must have an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or prevent serious injury; his primary motivation for entry into the home must be to render assistance, not to find and seize evidence; and there must be a reasonable nexus between the emergency and the area or places to be searched.

[Ibid. (citing State v. Cassidy, 179 N.J. 150, 161 (2004)).]

In applying this test, the court must "avoid viewing the events through the distorted prism of hindsight, recognizing that those who must act in the heat of the moment do so without the luxury of time for calm reflection or sustained deliberation." Id. at 599.

Here, the trial court found that all three prongs of the Frankel test had been satisfied. In its written opinion dated December 17, 2008, the court found that the officers had an objectively reasonable belief that defendant had been injured in the accident and required immediate medical assistance. The court additionally found that the officer's primary motivation for entering into defendant's home without a warrant was to render assistance, not to find and seize evidence. In addition, the court found that there was a reasonable nexus between the emergency and the areas of the home where the officers went.

The court's factual findings are binding upon us because they are supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). Deference to the court's factual findings is particularly appropriate in this case because the court's findings were informed by its "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Id. at 471 (quoting Johnson, supra, 42 N.J. at 161-62).

Defendant argues, however, that there was insufficient evidence to justify the officers' entry into her home. She contends that, while the officers stated that they saw a "stain" on the wall, there was no evidence as to whether the "stain" was blood, was old or new, or had some relationship to the auto accident. Defendant asserts that Williams' description of the stain as a "red smudge" suggests that "the spot was fairly small and insignificant."

We find no merit in these contentions. Suffice it to say, in light of the information the officers had concerning the accident, they reasonably believed that the "stain" on the wall in defendant's home was blood and defendant might require immediate medical assistance. The officers were not required to undertake a forensic analysis of the "stain" before entering defendant's home. Moreover, the State was not required to present proof that the "stain" was, in fact, blood in order to establish that the officers had a reasonable belief that defendant required immediate medical assistance.

Defendant further argues that the officers' entry into her home was primarily motivated by a desire to obtain evidence concerning the accident, rather than to provide emergency assistance. Again, we disagree. As the trial court pointed out in its written opinion, there is no evidence to suggest that the officers were primarily motivated by a desire to obtain evidence concerning the accident.

The record supports the court's finding. When the officers entered the home, they went to the bedroom, asked defendant whether she required an ambulance and checked her injuries. Defendant's assertion that the officers' "real motivation" was to arrest her and collect evidence that she had been DWI is without merit.

Defendant additionally relies upon Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984), in support of her contention that warrantless entry into her home was not justified due to exigent circumstances. In Welsh, the defendant swerved his car off the road but did not damage any person or property and walked home. Id. at 742, 104 S. Ct. at 2093-94, 80 L. Ed. 2d at 738. The police entered the defendant's home without a warrant and arrested him for driving while under the influence. Id. at 743, 104 S. Ct. at 2094, 80 L. Ed. 2d at 738-39.

In Welsh, the Court held that the officer's warantless entry into the home was not justified. Id. at 754-55, 104 S. Ct. at 2100, 80 L. Ed. 2d at 746. The Court noted that the underlying offense was a civil, rather than criminal, offense with no imprisonment. Id. at 754, 104 S. Ct. at 2100, 80 L. Ed. 2d at 746. The Court stated that "application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense . . . has been committed." Id. at 753, 104 S. Ct. at 2099, 80 L. Ed. 2d at 745.

We are satisfied that defendant's reliance upon Welsh is misplaced. The defendant in Welsh was not injured and the Court did not consider whether the officer's entry into the defendant's home was justified by the need to provide the defendant with emergency medical assistance.

III.

Next, defendant argues that she was unlawfully arrested inside of her home and she did not voluntarily agree to accompany the officers back to the scene of the accident. The contention is without merit.

"The test for determining whether [a] defendant was arrested is that of the objective reasonable person. That is, considering all of the surrounding circumstances, would a reasonable person conclude that he is not free to leave." State v. Craig, 237 N.J. Super. 407, 412 (App. Div. 1989), certif. denied, 121 N.J. 6 62 (1990).

Here, the trial court noted that Strumalo had testified that he asked defendant if she would accompany him back to the accident scene, and she voluntarily agreed to do so. The court noted that defendant was not in handcuffs and never told the officers that she did not want to go with them. The court pointed out that both Strumalo and Williams stated that they went to defendant's home to assist in the investigation and neither officer stated that they went to defendant's home to arrest her.

The court also observed that, while Vanderclock had written in his report that Strumalo said he had detained defendant and was bringing her back to the accident scene, Strumalo had credibly testified that he did not detain defendant or so inform Vanderclock. In its written opinion, the court stated:

There is no evidence that the defendant felt restricted or restrained by the police officers when she consented to accompany them back to her vehicle. There is also nothing showing that the police conveyed any behavior that would make the defendant feel like she [did not] have a choice but to comply. Even though Officer Vanderclock testified that he felt the defendant was detained and would not have let her go once she was at the scene, the officers who did respond to her residence and asked her to come back to the scene, did not testify as to that fact.

We are satisfied the court's findings are supported by sufficient credible evidence in the record. Locurto, supra, 157 N.J. at 470-71. Accordingly, we reject defendant's contention that she was unlawfully arrested in her home.

IV.

Defendant additionally argues that trial court erred by holding that the officers were not required to advise her of her right to refuse to accompany them back to the accident scene. Again, we disagree.

Here, the trial court noted that generally the State must show the occupant of premises was informed of his or her right to refuse a request by the police for consent to search the premises. The court found that such advice was not required in this case because the officers did not seek defendant's consent to search her home. The officers merely asked defendant to accompany them back to the accident scene so that they could continue their investigation.

The court's decision was correct. See State v. Padilla, 321 N.J. Super. 96, 108 (App. Div. 1999), aff'd o.b., 163 N.J. 3 (2000) (holding that police were not required to inform occupant of her right to refuse consent when they sought permission to enter premises to continue their investigation rather than to conduct a search).

We have considered defendant's other contentions and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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

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