STATE OF NEW JERSEY v. BRIAN McGACKEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4527-08T44527-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN McGACKEN,

Defendant-Appellant.

_______________________________________

 

Argued December 15, 2009 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-06-1519.

Mitchell J. Ansell argued the cause for appellant (Ansell, Zaro, Grimm & Aaron, attorneys; Mr. Ansell, of counsel and on the brief; Greg S. Gargulinski, on the brief).

Hillary Horton, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. Horton, of counsel and on the brief).

PER CURIAM

This appeal from an order denying suppression of evidence focuses on a narrow issue the circumstances that permit warrantless entry and search of a home to determine whether a person may be in need of emergency aid. See State v. Frankel, 179 N.J. 586, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004).

We must determine whether the police violated defendant's constitutional rights by following him, without a warrant or consent, into a bedroom to investigate a report of loud screaming, in particular after defendant had given a plausible explanation. We hold that a limited warrantless search, seeking only to determine if any person needed aid, was reasonable under the circumstances and, therefore, did not violate defendant's Fourth Amendment or State constitutional rights. We affirm the trial court's order denying defendant's motion to suppress evidence.

The facts developed at the suppression hearing are not disputed. At about 7:30 p.m. on February 17, 2007, State Police dispatch received an anonymous 911 call reporting loud screaming coming from defendant's residence in Farmingdale, Monmouth County. Trooper Thomas Holmes and a fellow trooper responded to the call. They heard and saw nothing unusual from outside the residence. They knocked on the door and announced that they were the State Police.

Within a reasonable time, defendant opened the door dressed only in a bathrobe. Otherwise, defendant's demeanor and conduct were normal, and he was completely cooperative. When told about the report of screaming, defendant invited the troopers to step inside and explained that the screaming came during loud sex with his girlfriend. The troopers asked to talk to the girlfriend. She came from upstairs wearing only a towel and confirmed defendant's explanation.

Trooper Holmes asked to see identification. Defendant said that his identification was upstairs in his bedroom, and Trooper Holmes told him to get it. As defendant walked to the stairs, Trooper Holmes followed. Defendant expressed no objection. Walking up the stairs, Trooper Holmes smelled the odor of raw marijuana.

Upstairs, Trooper Holmes saw defendant use his foot to push a tray under a couch. He asked defendant what was on the tray, and defendant soon admitted that the tray contained marijuana. In defendant's bedroom, the trooper saw in plain view a number of growing marijuana plants, as well as bagged and loose marijuana. He placed defendant under arrest.

Defendant later consented to a search of his home, signing State Police authorization forms. The Police seized fifteen growing marijuana plants, 12.5 ounces of loose or bagged marijuana, and various equipment and paraphernalia for growing and distributing marijuana.

Among other marijuana charges, defendant was indicted on a first-degree charge of maintaining or operating a facility for the production of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-4. After the trial court denied his motion to suppress all evidence seized from his residence, defendant pleaded guilty conditionally to the first-degree charge. He was sentenced in accordance with his plea agreement to ten years in prison with thirty-nine months to be served without parole. Defendant posted bail pending this appeal.

In reviewing a motion to suppress evidence, an appellate court must defer to the trial court's fact findings and "feel" of the case and may not substitute its own conclusion regarding the evidence, even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)); State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007).

Defendant does not contend that the police violated his constitutional rights by coming to his door and questioning him about the report of loud screaming. Nor does he challenge their request for identification. See State v. Sirianni, 347 N.J. Super. 382, 390 (App. Div.), certif. denied, 172 N.J. 178 (2002). Defendant focuses his argument on the proofs necessary to satisfy the emergency aid exception to the warrant requirement.

Trooper Holmes testified that he followed defendant upstairs for two reasons to protect his own and his fellow trooper's safety and to make sure there was no other person in the home in need of aid. Defendant accepts these police motivations without dispute. No evidence suggested the police had any suspicion of criminal activity by defendant or his girlfriend, or they wished to conduct a search for evidence of crime. Trooper Holmes testified that he had no prior knowledge of defendant when he first met him at the door of his house that night, and that nothing that defendant and his girlfriend did or said downstairs raised suspicion of criminal activity.

Defendant argues that the police did not have an unfettered right to search his home after he and his girlfriend gave plausible explanations for the source of the screaming. He also relies on Trooper Holmes's straightforward testimony that he had no other reason to suspect an emergency besides the report of screaming. Arguing that the screaming by itself did not permit the police to search his home, defendant emphasizes the Supreme Court's determination in Frankel, supra, 179 N.J. at 605, that a so-called open-line 911 call alone would not be sufficient as a matter of law for the police to enter a home and investigate the nature of the emergency.

In Frankel, the Court explained "the contours of the emergency aid exception to the warrant requirement." Id. at 598. The police had received a 911 call from Frankel's residence that remained on an "open line," meaning that the police dispatcher could hear background noise but no one was speaking. The dispatcher got a busy signal when he attempted to call back Frankel's phone number. Id. at 593. An officer went immediately to Frankel's home. At the door, Frankel peered around a sheet and appeared surprised and nervous. Ibid. He denied making the 911 call and also said no one else was in the house. Id. at 593-94. He refused the police request to enter his home and look for themselves. Id. at 594.

Outside his house, Frankel theorized that his computer may have inadvertently dialed 911. Ibid. While waiting for backup officers to arrive, an officer saw a lawn chair propped up against a sliding door, raising further suspicion. The police entered the house without a warrant and found marijuana plants and other evidence. Id. at 595.

The Supreme Court concluded that the police entry and search did not violate Frankel's constitutional rights. Id. at 612. The Court first acknowledged that a warrantless search of a home is "presumptively invalid" and the State has the burden of proving one of the "few specifically established and well-delineated exceptions" to the warrant requirement. Id. at 598 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298-99 (1978)). Exceptions to the warrant requirement "are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Ibid. (citing Chimel v. California, 395 U.S. 752, 762-64, 89 S. Ct. 2034, 2039-41, 23 L. Ed. 2d 685, 694-95 (1969); Terry v. Ohio, 392 U.S. 1, 29-31, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968)).

The Court explained in Frankel that the emergency aid exception "is derived from the commonsense understanding that exigent circumstances may require public safety officials, such as the police, firefighters, or paramedics, to enter a dwelling without a warrant for the purpose of protecting or preserving life, or preventing serious injury." Ibid. The Court held that a three-prong test must be satisfied for the police to enter a home without a warrant under the emergency aid exception: (1) "an objectively reasonable basis to believe that an emergency requires . . . immediate assistance to protect or preserve life, or prevent serious injury[,]" (2) a "primary motivation" of the police "to render assistance, not to find and seize evidence[,]" and (3) "a reasonable nexus between the emergency and the area or places to be searched." Id. at 600.

In Frankel, the "totality of the circumstances" of the open-line 911 call, which was inadequately explained, together with Frankel's nervousness and agitation, gave the police an objectively reasonable basis to suspect an emergency and to enter the house without a warrant or consent. Id. at 609-10.

In this case, defendant does not challenge the second and third prongs of the Frankel test. Concededly, Trooper Holmes did not follow defendant up the stairs for the purpose of searching for evidence, and he did not intrude into any area beyond where a person could be in need of aid. Defendant argues only that the first prong of the test was not satisfied under these facts that the police lacked an objectively reasonable basis to believe anyone was in need of aid after defendant and his girlfriend plausibly explained the screaming.

We disagree with defendant's argument and conclude that the screaming, confirmed by the police to have occurred, gave them an objectively reasonable basis to believe that a limited investigation was necessary to determine whether anyone else was in the home and in need of aid.

In Frankel, the Court described a 911 call as "an SOS." Id. at 604. A scream, too, is usually an SOS call, and it requires investigation. While the Court in Frankel declined to reach a "bright line" rule that a distress call always provides sufficient objective basis to enter a home, it also declined to reach the opposite conclusion that, by itself, it never does. Id. at 605. The Court opted for "a more nuanced approach" based on the "totality of circumstances." Ibid. Trial courts must consider "the competing values at stake" in each particular case, "the privacy interests of the home versus the interest in acting promptly to render potentially life-saving assistance to a person who may be incapacitated." Ibid. The Court also recognized that hindsight might prove to be distorting, and the conduct of the police must be judged with an understanding that they must act "in the heat of the moment . . . without the luxury of time for calm reflection or sustained deliberation." Id. at 599.

The police are not required to accept the explanation that a person answering the door gives for a distress call. Id. at 609. While loud sex may have been a plausible source of screaming, that explanation was not so reliable that the police acted unreasonably in investigating further. As Trooper Holmes testified, he had no particular reason to disbelieve defendant and his girlfriend, but he also had experienced many instances when persons had lied to him. The potential for harm was too severe for the police to accept an explanation for loud screaming that could as well have been a cover-up of its true source. The police intrusion here was for the reasonable purpose of confirming that no other person was in the home and in need of aid. "Courts are loath to second-guess decisions made in good faith with the intent of protecting life . . . ." Ibid.

Moreover, by first questioning defendant and his girlfriend, the troopers discounted the possibility that someone may have made a false report of screaming. Defendant did not deny that screaming had occurred in his residence. His admission made it unnecessary for the police to seek corro-boration to establish the reliability of the anonymous 911 call.

We also note that the issue in such a case is not whether the police should obtain a warrant before entering the home. Because the emergency aid exception is not tied to the gathering of evidence and by its nature requires immediate official action, the warrant provisions of the Fourth Amendment and the State constitution are simply inapplicable. See id. at 599 (Constitutional protections "do not demand that public safety officials stand by in the face of an imminent danger and delay potential life-saving measures while critical and precious time is expended obtaining a warrant."); see also U.S. v. Barone, 330 F.2d 543, 544-45 (2d Cir.), cert. denied, 377 U.S. 1004, 84 S. Ct. 1940, 12 L. Ed. 2d 1053 (1964) (Where police heard screaming from a residence at night, their right "to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as peace officers, and derives from the common law.").

Finally, the State also argues that the community caretaking function of the police justified Trooper Holmes's intrusion into defendant's home. See Cady v. Dombrowski, 413 U.S. 433, 439-48, 93 S. Ct. 2523, 2527-31, 37 L. Ed. 2d 706, 713-18 (1973); State v. Bogan, 200 N.J. 61, 73-75 (2009); State v. Diloreto, 180 N.J. 264, 276 (2004); State v. Garbin, 325 N.J. Super. 521, 526-27 (App. Div. 1999), certif. denied, 164 N.J. 560 (2000). We need not analyze that exception separately because we see the emergency aid doctrine as encompassed within the community caretaking function of the police. The same questions of objective reasonableness of police conduct would be considered in determining whether Trooper Holmes could follow defendant up the stairs as part of his community caretaking function. See Bogan, supra, 200 N.J. at 80.

We find no error in the trial court's conclusion that the police could enter the interior of defendant's home, without his consent or a warrant, for the limited purpose of determining whether any person was in need of emergency aid.

 
Affirmed.

We commend counsel for filing helpful briefs that argue the discrete dispositive issue on these facts.

A person's refusal to allow a warrantless search is not probative of wrongdoing and does not add to the police justification for a search. Frankel, supra, 179 N.J. at 611.

The Fourth Amendment and article I, paragraph 7, of the New Jersey Constitution prohibit unreasonable searches, not warrantless searches.

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A-4527-08T4

March 15, 2010