STATE OF NEW JERSEY v. ROBERT SAWH

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5913-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT SAWH,

Defendant-Appellant.

______________________________________________

October 18, 2010

 

Argued July 13, 2010 - Decided

 

Before Judges R. B. Coleman and C. L. Miniman.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-03-0504.

 

Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas and Margulies Wind, attorneys; Mr. Zegas, of counsel; Jeffrey R. Kivetz and Robert E. Margulies, on the brief).

 

Steven J. Harbace, Assistant Prosecutor, argued the cause for respondent (Edward J. DeFazio, Hudson County Prosecutor, attorney; Mr. Harbace, on the brief).

 

PER CURIAM

Following the denial of his motion to suppress evidence seized incident to a warrantless search of his home, defendant Robert Sawh, entered a plea of guilty to two charges: first-degree possession of cocaine in an aggregate amount of five ounces or more, with intent to disperse or distribute same, N.J.S.A. 2C:35-5a(1), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b. In exchange, the State agreed to recommend a sentence of ten years in prison with a forty-five month period of parole ineligibility concurrent with a five-year flat term on the weapons count, and to move to dismiss the remaining charges filed in Hudson County Indictment No. 08-03-0504. Defendant's right to appeal the denial of his motion to suppress was expressly reserved in the plea agreement. We have considered defendant's arguments in light of the facts and the applicable law, and we affirm. See State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990) (noting "[t]he aim of our review is to determine whether the judge's findings are supported by evidence in the hearing transcript").

The following evidence was developed in the hearing on defendant's motion to suppress evidence. During the months of August and September 2007, the Hudson County Prosecutor's Office Municipal Task Force (Task Force), operating through an undercover officer, purchased cocaine on several occasions from an informant, resulting in the informant's eventual arrest on September 18, 2007. The informant agreed to cooperate as a confidential informant with the Task Force in exchange for his release on bail. The informant consented to a voluntary interrogation conducted by Detective Juan Betancourth of the Bayonne Police Department and Detective Sergeant Dennis Miller of the Task Force, and he informed the officers that he purchased 500 grams of cocaine a week at a price of twenty-five dollars per gram from defendant Robert Sawh. He further advised the officers that the drug transactions occurred at Sawh's residence located in Jersey City, and that Sawh owned a 1999 dark-colored two-door Honda Civic. The informant also alerted the officers to the existence of a camera for counter-surveillance mounted outside Sawh's residence.

At about 6:00 p.m. on November 14, 2007, approximately two months after the informant s arrest, detectives with the Task Force initiated surveillance of defendant's residence, with the assistance of at least ten officers from the Bayonne and Jersey City Police Departments. Detective William Downy of the Task Force set up a mobile surveillance unit of the residence and surrounding area. During the surveillance, Downy observed a woman, later identified as Lillian Martinez, in the second floor window of the residence.

Downy observed Sawh arrive at his residence at approximately 8:00 p.m. Fifteen minutes later, a red cargo van bearing the logo "Behead Records" arrived. Crawford Hazelwood exited the passenger side of the van and entered the residence, staying inside for roughly fifteen minutes while the van remained running outside, with Gazie Neshiewat waiting in the driver's seat. After Hazelwood returned, the van left the area, and Downy notified the perimeter units of his observations. Detectives initiated a motor vehicle stop of the van, approximately six blocks from Sawh's residence.

While the van was pulled over, Detective Erin Burns asked for and received Neshiewat's consent to search the vehicle. Based on a tip received by a confidential informant, Detective Burns removed an air conditioning vent on the passenger side, which revealed a clear plastic sandwich bag containing 29.30 grams of cocaine. Both Hazelwood and Neshiewat were placed under arrest. Following his arrest, Neshiewat told Detective Burns that he had gone to Sawh's residence to pick up cocaine for Heston Hazelwood.

Continuing the surveillance, Detective Downy observed a grey Toyota Tundra driven by Christian Hernandez arrive at Sawh's residence at approximately 8:46 p.m. Sawh exited the residence and handed a package to Hernandez, who then drove away as Sawh reentered his house. Jersey City Officers Lugo, Burgess, and Goodman initiated a motor vehicle stop of Hernandez's vehicle at Garfield and Eastern Parkway. As Officer Lugo approached the driver's side of the vehicle, he observed in plain view in the cup holder of the center console two clear plastic bags containing ninety grams of cocaine. Hernandez was arrested.

At approximately 9:10 p.m., an unknown male and female arrived in a Mitsubishi Gallant and entered Sawh's residence, remaining inside for about thirty minutes. As the couple exited the house, Downy witnessed the male carrying a white plastic bag As they drove away, Downy notified the perimeter units that, based on his experience, he believed he had witnessed a drug transaction. The unknown persons were not pulled over, however, and Downy was not able to confirm whether the plastic bag carried by the male as he left Sawh's residence contained drugs, as he suspected.

At approximately 9:45 p.m., Sawh left the location in his Honda Civic. At 11:55 p.m., he returned, but he drove past his residence in his Honda Civic with Heston Hazelwood. Detective Downy alerted the perimeter units of the presence of Sawh and Heston Hazelwood, and the vehicle was stopped five or ten minutes later in the area of Linden and Garfield Avenues. Both men were arrested.

After the arrests of Crawford Hazelwood, Gazie Neshiewat and Christian Hernandez, who were observed either inside or outside of Sawh's residence engaged in suspected narcotics transactions, the police believed that they had probable cause to secure a search warrant.

Thus, 12:30 a.m., on November 15, the Task Force and Jersey City Police Department announced their presence and attempted to gain entry into Sawh's residence to secure the premises. The door of the premises was bolted from the inside, so the officers broke down the door, gained entry and conducted what they described as a protective sweep to ascertain whether there were other people in the premises. Lillian Martinez was present. Detective Miller testified that he went into the bathroom from which Martinez was coming as they entered. In plain view on the bathroom floor, Miller observed a .40 caliber handgun. As the sweep continued, a small quantity of marijuana was found in the living room area. Martinez was placed under arrest. Officers remained on the premises, without continuing to search.

At approximately 5:15 a.m., a search warrant for Sawh's residence was signed by Judge Richard Nieto of the Jersey City Municipal Court. According to Detective Burns, she had been told to do a search warrant at about 9:00 p.m. This was her first time drafting the paperwork for a search warrant. She started the affidavit between 9:15 p.m. and 9:30 p.m. Detective Burns testified that numerous unsuccessful attempts were made to find a judge to sign the warrant starting at approximately 3:00 a.m.

Based upon these facts presented at the motion hearing before Judge Kevin G. Callahan, the judge concluded that it was reasonable for the Task Force to believe that there was contraband inside of the apartment and that it probably would have been destroyed by Martinez if the police had not immediately entered to preserve the evidence. The judge reasoned as follows:

On the eve of the search, the police had made several arrests concerning this investigation of defendants with substantial amounts of narcotics. Each of these arrests pertained to someone either leaving the residence or who had received a package from the residence; based on these arrests it was reasonable for the police to believe that there was a large quantity of narcotics inside the apartment. The police had observed defendant Martinez watching the area through a window from within the fortified premises and they know she had been inside as Sawh conducted the drug transactions. These facts give rise to the well founded belief that this may have been more than a one man operation, leading the police to the conclusion that Martinez may have destroyed evidence still inside once she was unable to contact Sawh due to his arrest. The police had probable cause to believe that there were narcotics in the home and a reasonable belief that they would be destroyed if they did not take the extraordinary step of securing the premises from within.

In short, the judge found that exigent circumstances existed that were not created by the police. Under the judge's assessment of the circumstances, the police "acted accordingly as [the exigent circumstances] arose to ensure the safety of evidence." We agree.

Defendant raises the following arguments on appeal:

POINT I: THE WARRANTLESS SEARCH OF DEFENDANT'S HOME WAS IN VIOLATION OF HIS RIGHTS UNDER THE NEW JERSEY AND UNITED STATES CONSTITUTION AND CANNOT BE JUSTIFIED BASED ON EXIGENT CIRCUMSTANCES.

 

POINT II: DEFENDANT'S RIGHTS UNDER THE NEW JERSEY AND UNITED STATES CONSTITUTIONS WERE VIOLATED BY THE WARRANTLESS SEARCH AND THE INEVITABLE DISCOVERY DOCTRINE DID NOT JUSTIFY THE UNLAWFUL SEIZURE THAT OCCURRED AFTER DEFENDANT'S HOME HAD BEEN FORCIBLY ENTERED.

 

To reiterate the well-settled standard in reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007); see also Alvarez, supra, 238 N.J. Super. 560 at 562-64. We review the record on a motion to suppress to determine whether the judge's findings are supported by evidence in the hearing transcript. Id. at 564. We give deference to findings influenced by the judge's "opportunity to hear and see the witnesses and to have the 'feel' of the case." Elders, supra, 192 N.J. at 244. Applying these standards, we conclude that no reversible error was committed below.

A basic principle of Fourth Amendment law is that "a search and seizure of a citizen's home without a search warrant is presumptively unreasonable." State v. Speid, 255 N.J. Super. 398, 402 (App. Div. 1992) (quoting Payton v. N.Y., 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980)), cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993)). "The warrant requirement safeguards citizens by placing the determination of probable cause in the hands of a neutral magistrate before an arrest or search is authorized." State v. Henry, 133 N.J. 104, 110 (1993). The State bears the burden of demonstrating that a warrantless arrest or search falls within an exception to the warrant requirement. State v. Frankel, 179 N.J. 586, 598 (2004).

A search based upon probable cause and exigent circumstances without a warrant is permitted. Speid, supra, 255 N.J. Super. at 402, (citing State v. Lewis, 116 N.J. 477 (1989)). Moreover, the Supreme Court of the United States has recognized that where probable cause is established, the police may enter a home to secure it while a search warrant is obtained. Segura v. United States, 468 U.S. 796, 810 (1984). In Segura, the Court declared that:

securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents. We reaffirm at the same time, however, that, absent exigent circumstances, a warrantless search . . . is illegal.

 

[Ibid.]

 

We have held that "a search without a warrant may be made if probable cause exists therefor and exigent circumstances are present which, as a practical matter, preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both." State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974). "[T]o sustain a warrantless search, the State must ordinarily demonstrate that exigent circumstances prevented obtaining a written warrant and that probable cause for the search existed." State v. Valencia, 93 N.J. 126, 136 (1983). Moreover, we have held that, where the police enter a home to secure the premises until a warrant can be obtained, they must secure a warrant as soon as practicable, minimizing the time they are in the home without a warrant. Speid, supra, 255 N.J. Super. at 404, (citing United States v. Aquino, 836 F.2d 1268 (10th Cir. 1988)). To support the exigent circumstances exception to the warrant requirement, there should be a clear showing of probable cause as opposed to the minimum showing of probable cause requisite to secure a search warrant. Lewis, supra, 116 N.J. at 486.

We have previously enumerated relevant factors to be considered when determining exigency in order to mandate an immediate warrantless search:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause, and (9) the time of the entry.

 

[Alvarez, supra, 238 N.J. Super. at 568.]

 

In addition to those factors, we have recognized that the court should consider the physical character of the premises and whether it is "conducive to effective surveillance, as an alternative to a warrantless entry while a warrant is procured." Ibid. Likewise, it is relevant whether the exigent circumstances are "police created." Id. at 568 (quoting State v. Hutchins, 116 N.J. 457, 460 (1989)).

Defendant contends that the evidence seized, during the November 15, 2007 warrantless entry, should have been suppressed as the officers' entry into his residence and the search were not justified by exigent circumstances. Defendant argues in his appellate brief that the State was unable to offer any evidence that Martinez was aware of Sawh's arrest or any of the other arrests stemming from the alleged drug transactions at the house. Thus, defendant continues, the motion judge's finding of exigency was mere speculation, and any exigency that might have existed was dissipated over the course of the evening and early morning, between the time the Task Force determined to seek the warrant and when it was issued.

The State acknowledges the need for a warrant to search a home, but it argues it was critical under the circumstances of this case to secure the premises and the evidence while it sought the search warrant. It insists that it did not conduct a search until the warrant had been issued and that the only evidence seized upon entry into the premises was contraband in plain view.

We are satisfied that the motion judge appropriately determined that the officers were objectively reasonable in their belief that the law enforcement activity outside Sawh's residence, namely the arrest of Sawh and others connected to him, would likely come to the attention of Lillian Martinez, who was still on the premises. We further agree that "[t]he police could assume that by Martinez being aware of the narcotics operation she might have destroyed any contraband in the apartment after Sawh failed to return that night." Lastly, we are convinced there was an ample basis for the judge to conclude that Sawh's absence due to his earlier arrest would likely have prompted Martinez to take precautionary steps that would include the destruction of the narcotics.1

Applying the Alvarez factors to the facts of this case demonstrates the existence of exigent circumstances. First, the surveillance of the premises took place during the evening, and it took several hours for the officers to gather the information needed to obtain a search warrant, and, as was encountered here, judicial officers are not as readily available for consideration of warrant requests in the earlier hours of the morning.2 Second, there was urgency. The police had a reasonable belief that Martinez would come to realize that the police were in the area, and she would dispose of the contraband once Sawh did not return. Further, as soon as Martinez learned that the arrests of Gazie Neshiewat, Christian Hernandez, and Crawford Hazelwood, three "clients" of defendant, had taken place within a few block radius of Sawh's residence, it would be understood by Martinez that the premises were under surveillance. Third, the danger to officers surrounding the residence was potentially high, because the officers had information that there was a camera for counter-surveillance and that there were several weapons inside the residence.3

As for the fifth factor, the contraband was drugs and could have been disposed of easily. Sixth, the gravity of the offense involved was high, as the informant's tips and the investigations led the Task Force to believe that defendant's residence contained a large quantity of narcotics. Seventh, the possibility that defendant was armed was evident, since the Task Force had information that there were several weapons in the residence. Eighth, the strength of the facts establishing probable cause was quite high as the surveillance officers observed people entering defendant's residence with nothing in their hands, and exiting with bags that probably had drugs in them. These observations led to the arrests of three of these people for drug possession. Ninth, the time of entry was nighttime or early morning. The courts were closed and the reduced availability of a judge added a further complication to the procurement of the search warrant.

All of these factors weighed in favor of the determination that exigent circumstances existed. The State made a sufficient showing of probable cause of contraband within Sawh's home, enough so to obtain a search warrant for the residence and the officers reasonably believed that they needed to act immediately to secure the residence in order to prevent the destruction of evidence. Smith, supra, 129 N.J. Super. at 435.

Nevertheless, defendant maintains that the State did not present sufficient evidence of a likelihood that Lillian Martinez would dispose of the evidence. Defendant relies on various federal authorities as support for his argument, only one of which calls for an in-depth discussion.

In United States v. Radka, 904 F.2d 357, 358-62 (7th Cir. 1990), Drug Enforcement Agents (DEA) placed surveillance on a residence after learning from an informant that large quantities of marijuana were delivered there. During surveillance, DEA agents stopped two motor vehicles shortly after the vehicles left the subject premises. Id. at 358-59. The first stop was approximately eight to nine miles from the subject residence and resulted in an arrest for possession of hashish. Id. at 359. The second stop failed to produce any contraband and was an eighth of a mile from the residence which was "surrounded by heavy trees and brush." Ibid. The court held that these facts failed to support the district court finding that the DEA agents had an objectively reasonable belief that the destruction of narcotics was imminent. Id. at 362.

The reason it was impossible in Radka for occupants inside of the house to be aware of the circumstances outside the premises was the secluded location and the abundance of vegetation around the residence. Moreover, no actual resident of the home in Radka was arrested in that case, whereas Sawh, a co-resident of Martinez, was arrested. His failure to return to the residence would likely signal to the remaining occupant of the residence that something was amiss and there was a need to destroy the contraband within the premises. The police were not required to wait until Martinez had actual knowledge of Sawh's arrest.

Defendant argues that the mere possibility of loss or destruction of evidence is an insufficient justification for a warrantless entry. United States v. Hayes, 518 F.2d 675, 678 (6th Cir. 1975). Defendant again presses the point that Martinez was unaware of the law enforcement activities in the neighborhood because it was not observable to her within the residence. Defendant further urges that the motion judge engaged in mere speculation regarding the possibility that Martinez would destroy the evidence. Certainly, we agree that a slight chance of loss or destruction of evidence is not sufficient to establish exigency; however, as discussed above, the facts and circumstances revealed in the record herein reinforce that the motion judge's reasonably objective assessment that prompt action by law enforcement officials was warranted to preserve evidence. See Alvarez, supra, 238 N.J. Super. at 568; see also State v. Bruzzese, 94 N.J. 210, 219 (1983) ("[T]he proper inquiry for determining the constitutionality of a search and seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable . . . . ").

After a careful review of the stipulated facts, the applicable law, and the arguments raised, we affirm the motion judge's denial of defendant's motion to suppress evidence substantially for the reasons expressed in Judge Callahan's thoughtful and sound written opinion. Accepting the judge's finding, we are satisfied that the State met its obligation to establish that the entry into the premises in advance of the receipt of the warrant was justified by exigent circumstances and that the ensuing seizures of evidence were lawful under the plain view doctrine. In light of this disposition of the appeal, we decline to address the applicability of the inevitable discovery rule.

Affirmed.

 

1 For purposes of reasonableness, courts have held that a warrantless entry is justified where "experience had taught that if the [drug] sellers did not return to the residence of the source within a short period of time," the drugs might be destroyed. United States v. Mabry, 809 F.2d 671 (10th Cir.), cert. denied, 484 U.S. 874, 108 S. Ct. 33, 98 L. Ed. 2d 164 (1987), and overruled on other grounds, Mathews v. United States, 45 U.S. 58, 99 L. Ed. 2d 54, 108 S. Ct. 883 (1988); see also United States v. Cuaron, 700 F.2d 582, 589 (10th Cir. 1983) (citing United States v. Baker, 520 F. Supp. 1080, 1083 (1981)) (warrantless search justified where agents had "reasonable grounds to believe [defendant] might become alarmed and [] destroy" drugs if co-conspirator failed to return as expected).

2 In Segura, the United States Supreme Court held that if officers, having probable cause, are in the process of obtaining a warrant, they may enter the target premises, arrest and take into custody the occupants who have a legitimate possessory interest in its contents, and secure the premises from within for a reasonable period of time. Segura, supra, 468 U.S. at 812. There, the court found that a nineteen-hour time period was a reasonable amount of time. Id. at 812-13. In the present case, the police secured the apartment for approximately four and a half hours while a search warrant was obtained and therefore, clearly was within a reasonable time period necessary to obtain a search warrant.

3 The fourth factor may also be analyzed under the same facts and reasoning.