STATE OF NEW JERSEY v. JEFFREY W. LUCKETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5177-08T45177-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY W. LUCKETT,

Defendant-Appellant.

_____________________________________________________

 

Submitted June 22, 2010 - Decided

Before Judges Fisher and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-08-1772.

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

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, we consider the legitimacy of police entry into defendant's hotel room based on a tip that defendant was in possession of firearms and on the observation of weapons in the room when defendant opened the door at the officers' request. We conclude that the police had sufficient cause to request entry into defendant's hotel room; we also conclude that because the officers observed rifles in the room upon the opening of the door, they were authorized to enter the room to conduct a protective sweep and that what was observed during the sweep, together with defendant's subsequent consent, warranted the additional search of the hotel room. We, therefore, affirm.

Defendant was charged with various weapons offenses resulting from evidence obtained by police from his hotel room in Atlantic City. Following the denial of his suppression motion, as well as the subsequent denial of motions to reconsider or for the reopening of the record, defendant pled guilty to second-degree possession of weapons without a permit, N.J.S.A. 2C:39-7, and was sentenced to a five-year prison term.

Defendant appealed, presenting the following arguments for our consideration:

I. THE WARRANTLESS SEARCH OF DEFENDANT'S APARTMENT WAS UNCONSTITUTIONAL AS IT DID NOT FALL WITHIN A) THE PROTECTIVE SEARCH EXCEPTION; B) THE CONSENT SEARCH EXCEPTION; C) THE PLAIN VIEW EXCEPTION; OR D) THE EXIGENT CIRCUMSTANCES EXCEPTION TO THE WARRANT REQUIREMENT.

A. The warrantless search of defendant's apartment was unconstitu-tional as it did not fall within the protective search exception to the warrant requirement.

B. The warrantless search of the defendant's apartment was unconstitu-tional as it did not fall within the consent search exception to the warrant requirement.

C. The warrantless search of the defendant's apartment was unconstitu-tional as it did not fall within the plain view exception to the warrant requirement.

D. The warrantless search of the defendant's apartment was unconstitu-tional as it did not fall within the exigent circumstances exception to the warrant requirement.

II. THE DEFENDANT'S APPLICATION TO REOPEN THE MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED ON THE BASIS OF NEWLY DISCOVERED EVIDENCE.

III. THE DEFENDANT'S MOTION FOR BAIL PENDING APPEAL SHOULD HAVE BEEN GRANTED AS HE ESTABLISHED THAT HE WAS NOT A THREAT TO THE COMMUNITY AND THAT THIS CASE INVOLVES SUBSTANTIAL QUESTIONS WHICH MUST BE DECIDED BY THE APPELLATE DIVISION.

We find insufficient merit in Points II and III to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also reject Point I for the following reasons.

After an evidentiary hearing to develop and illuminate the issues raised by defendant's suppression motion, Judge Albert J. Garofolo rendered a written decision that included the following findings of fact:

On May 28, 2007 at 12:45 p.m., Captain Abrams, Detective Dabney, Detective James and another officer of the Atlantic County Police Department responded to 142 South Tennessee Avenue. A citizen had reported that the defendant was in possession of a backpack full of handguns destined for the Blood[s] street gang. He was described as a heavyset black male who resided on the third floor. Upon arrival, the officers were informed by a hotel resident that he resided in room one on floor three.

The officers then knocked on room one on the third floor while verbally identifying themselves as police. After the defendant opened the door, the officers observed numerous long guns leaning against the far wall. Although the officers observed orange muzzles on some of the guns, some of the muzzles were hidden. Captain Abrams stepped inside the room to position himself between [defendant] and the guns.

Detective Dabney retrieved the bullet[] and the defendant then became physically nervous by sweating and stuttering his words. The police told the defendant about the information they received. The police then requested consent to search the defendant's room and advised him of his right of refusal. The defendant read the consent form and inquired whether his guns would be confiscated. Defendant consented to the search and expressed such by signing the consent form. The defendant then retrieved a revolver from under desk and gave it to Detective Dabney. Detective Dabney removed the ammunition and the defendant was taken into custody.

The defendant argues that the weapons might not have been initially visible because he only opened the door "slightly," and due to the size of the defendant standing in the doorway, the police could not have seen what they claim. The photographs admitted by the defendant of him standing in the doorway are insufficient to discount the veracity of the police on this issue. They are not an adequate recreation of one standing in front of the defendant in an open door and the point of view one would have. The factual dispute is decided in favor of the State.

Based on these factual findings, which are well-supported by the evidence adduced at the evidentiary hearing and, thus, entitled to our deference, State v. Locurto, 157 N.J. 463, 470-71 (1999), the judge concluded that the officers had a reasonable and articulable suspicion to inquire at defendant's hotel room and, once the door was opened by defendant, the observation of rifles in the room warranted entry into the room as a safety precaution. See Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094, 108 L. Ed. 2d 276, 281 (1990) (holding that a protective sweep is "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers and others"); State v. Lane, 393 N.J. Super. 132, 153 (App. Div.) (holding that "an arrest should not be the sine qua non of a legitimate protective sweep"), certif. denied, 192 N.J. 600 (2007). Once inside the room, defendant's consent authorized the officers' further search of the room.

 
Affirmed.

Although not explained in the judge's decision, Detective Dabney saw a bullet on a desk in the room after the officers entered.

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A-5177-08T4

July 9, 2010