STATE OF NEW JERSEY v. SANDY WILCHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0809-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SANDY WILCHER,

Defendant-Appellant.

___________________________________

May 5, 2011

Submitted February 15, 2011 - Decided

Before Judges Wefing and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

08-09-1607.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Frank J. Pugliese, Assistant

Deputy Public Defender, of counsel and on the

brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (Gina Giordano, Assistant

Prosecutor, on the brief).

PER CURIAM

Following the trial court's denial of his motion to suppress, defendant entered a plea of guilty to one count of first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1); -5b(3). The trial court sentenced defendant to a term of ten years in prison, with a five-year period of parole ineligibility. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant presents but one argument on appeal.

THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AS ITS BEING THE PRODUCT OF AN ILLEGAL SEARCH AND SEIZURE. (U.S. CONST. AMENDS. IV AND XIV; N.J CONST. (1947) ART. I, [sic] 7)

Two witnesses testified at the suppression hearing, Officer Joseph Seals of the Jersey City Police Department and his partner Edmond Redmond. They testified that on May 31, 2008, they were working the 3:00 p.m. to 11:00 p.m. shift. While on patrol, they were dispatched to 177-183 Bergen Avenue in response to a report that six black males, carrying a blue bag and a white bag, had been seen entering an apartment known to be vacant. Four other officers were dispatched to the scene as well.

When they arrived, Redmond and his partner and two other officers were admitted into the building by someone who lived there. The two other officers took up a position at the rear of the building. Redmond, Seals and the two other officers proceeded to the apartment about which they had been alerted. Officer Seals knocked on the door, and a male voice called from inside the apartment, inquiring who was at the door. Seals did not answer but knocked again. After a short wait, the door opened. Redmond, who had worked as a corrections officer at Moutainview Correctional Facility prior to joining the Jersey City police, recognized the man as Johnell Bowens. Bowens had been an inmate at Mountainview during Redmond's service there. Seals recognized defendant as from the area but had not had any direct dealing with him. Bowens, on opening the door and seeing the four officers, stated simply, "Oh shit, the police" and started to close the door. Officer Seals tried, unsuccessfully, to prevent him from doing so. Redmond testified that in the time that the door was opened, he could see into the apartment and observed a table, on which were three packages of white powder, each the approximate size of a tennis ball. He also saw a scale, a yellow bowl and a box with vials and caps. Later in his testimony Redmond also said that he saw a man sitting at the table, later identified as defendant Wilcher. Redmond did not know him at the time as he had Bowens.

Seals tried to re-open the door. While he was struggling with the door, the officers could hear what Redmond described as "a commotion going on inside." Seals said he heard "rummaging through the apartment." After a brief struggle, Seals was able to get the door open, and the police entered the apartment, but no one remained inside. A bedroom window was open, and there was a black boot on the window sill. Redmond and Seals looked out the window and could see a man jumping over the wall at the rear of the apartment complex. Redmond estimated the window to be approximately fifteen feet off the ground.

As they turned from the window, they saw an open closet door. On the floor of the closet was an open shoe box bearing the brand name Timberland. The box contained white powder that both thought to be heroin. They recognized it as such from the manner in which it was packaged, with plastic wrap and magazine paper. After making sure no one was in the apartment, the police then left and returned later, after securing a search warrant.

Later that day, Johnell Bowens was apprehended and placed under arrest, as was defendant Wilcher, who was with Bowens. At the time he was arrested, Wilcher was wearing only one boot, which was of the same type as Redmond had seen on the window sill of the apartment earlier that day.

Defendant presents several challenges to the trial court's decision to deny his motion to suppress. He contends that the information that was forwarded to Officers Seals and Redmond, the report of six black males entering a vacant apartment carrying plastic bags, did not provide a sufficient basis for them to approach the apartment. He points to the lack of independent corroboration and the failure to conduct any surveillance of the apartment. The police were not obliged to take either of the suggested steps before investigating. While they could have pursued such a course, "they were not constitutionally compelled to pursue these options. . . ." State v. Stanton, 265 N.J. Super. 383, 386 (App. Div. 1993).

We agree with the State that Stanton presents a factual complex that closely resembles this matter. In that case, the police received an anonymous tip that an individual named Christopher Torres was selling drugs from a particular room at a motel in Asbury Park; the informant also said there were several guns in the room. Id. at 384-85. Because of staffing issues, the police were not able to respond immediately to investigate but when the next shift reported for duty, they proceeded to the motel to look into the matter. Id. at 385. When they arrived at the room that had been identified, they knocked on the door and identified themselves as police. Ibid. Defendant pulled aside the window curtain to look out, and when he did so, the police could see into the room and saw a bag of white powdery substance they recognized as cocaine. Ibid. They entered the room and seized a quantity of cocaine, two handguns, a box of ammunition and a knife. Ibid. The trial court granted defendant's motion to suppress, but we reversed. Id. at 384. Writing for the court, Judge Baime stated the following principles, which we deem fully applicable here.

We discern nothing constitutionally offensive in the decision of the police to proceed to the scene and investigate. Indeed, the officers would have been derelict in their duty had they failed to do so. We also perceive nothing unreasonable in the officers' decision to knock on the motel room door and identify themselves. Whether or not this conduct was intended to detect criminal activity, it was not unreasonable or inconsistent with Fourth Amendment principles. We assume that the police routinely respond to complaints of criminal conduct by proceeding to the scene, announcing their presence and making reasonable inquiries. That is their job. We know of no constitutional prohibition barring such conduct.

[Id. at 386.]

The balance of defendant's argument is premised upon his view that the testimony of Officers Seals and Redmond with respect to their observations when Bowens opened the door is not credible. This is the only possible avenue for defendant for if the officers made the observations to which they testified, and heard the "commotion" and "rummaging" they described, they were confronted with exigent circumstances and probable cause, justifying their entry into the apartment. State v. Myers, 357 N.J. Super. 32, 38 (App. Div. 2003) (noting that "[t]he need for the police to obtain a warrant may be excused if both exigent circumstances and probable cause are extant.")

The trial court, however, specifically stated that the officers "were credible in what they were able to observe." "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). If the trial court's findings of fact are supported by "sufficient credible evidence present in the record[,]" those findings will be binding on a reviewing court. Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We are satisfied the trial court's order must be affirmed.

Affirmed.