STATE OF NEW JERSEY v. STEVEN Q. BRANNON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4495-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN Q. BRANNON,

Defendant-Appellant.

_______________________________

Submitted May 3, 2011 Decided May 26, 2011

Before Judges Parrillo and Espinosa.

On appeal from Superior Court of New Jersey, Law

Division, Mercer County, Indictment No. 06-08-831.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress evidence seized from a warrantless search of a residence, defendant Steven Q. Brannon entered a conditional plea of guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. He was sentenced in accordance with the plea agreement to a five-year term subject to a mandatory five-year period of parole ineligibility. Defendant now appeals from the denial of his suppression motion. We affirm.

According to the State's evidence presented at the suppression hearing, at about 1:40 p.m. on May 11, 2006, Trenton police received a call from a concerned resident of the 100 block of Franklin Street. The caller told Detective Sergeant Jim Dellaira that he observed an unknown black male inside the house next door at 115 Franklin Street. The caller reported that the occupants of the house had recently moved out and there had been a break-in several days earlier. According to the caller, following the break-in, the landlord told area residents, including the caller, that the perpetrators might return and that they should call the police if anyone was observed on the premises because the property should be vacant. The caller's assertion was confirmed by defendant himself, who admitted that he was questioned by the resident, who said she was going to call the police.

Detective Dellaira radioed for officers to respond to the call and proceeded to the location to back up the responding officers. Dellaira arrived on the scene first and saw a black male peeking through the shades of the second story window at 115 Franklin Street. He checked the front door and it was locked. Dellaira knocked and banged on the door and announced his presence several times, but no one responded. When Officers Joseph Tulle and Thomas Paccillo arrived on the scene, Dellaira knocked on the door again and announced he was a police officer. A black male, later identified as defendant, opened the door. Defendant was shirtless, sweating, animated, with dilated pupils and Dellaira was convinced defendant was under the influence of drugs.

Defendant said that he belonged there and that his daughter lived there, but he could not produce any identification or a key for the residence. When asked how he entered the home, defendant "didn't have an answer" at first, although he eventually said someone let him in, whom he could not identify. However, the next-door neighbor, who was sitting on her porch, told the officer that she did not recognize him and that he did not belong there. Dellaira suspected that defendant had broken into the house.

At this point, Dellaira entered the premises to investigate whether a burglary was in progress and whether another suspect was in the home. As he climbed the stairs to the second floor, where he had previously seen someone peeking out the window, the odor of marijuana became stronger. He started at the rear portion of the second floor, where he noticed that the rear bedroom window was open, its lock damaged and apparently "slipped." Dellaira could see scuff marks on the siding outside of the window, which he believed was consistent with someone climbing in through the window.

Dellaira worked his way to the front of the second story toward the bedroom where he had earlier observed an individual peek through the window. This room was smoke-filled and littered with drug paraphernalia, including a glass stem crack pipe, a partially burnt marijuana cigarette, and two spoons burnt on the bottom and containing white residue, all in plain view. A strong marijuana odor lingered and the crack pipe was still warm. As Dellaira bent down to examine the crack stem, he saw the butt of a handgun sticking out of a black canvas bag. He dumped out the bag and found a loaded handgun, a flashlight, a large butcher knife, a utility knife, a black fingerless glove, rubber gloves, a black fanny pack, and a black cloth wallet containing defendant's identification.

After securing the handgun and leaving behind the rest of the contraband, Dellaira returned downstairs and instructed Officers Paccillo and Tulle to arrest defendant for, among other things, possession of a loaded handgun and burglary.

The defense offered a different version of defendant's presence in the Franklin Street residence. His daughter, Tahira Young, claimed that defendant had her permission to be at her rented row house, which she was moving out of in May 2006. However, instead of giving her father a key to her home, she left the rear door unlocked throughout the day in the event defendant might come to visit. And although defendant had been to her home many times, Young could not understand why her next-door neighbor did not recognize him. Defendant confirmed that his daughter gave him permission to visit her row home. Defendant denied being under the influence of drugs or that the handgun and drugs found in the house were his.

At the conclusion of evidence, the trial judge denied the suppression motion, finding that "the evidence of a potential burglary in progress constituted probable cause and exigent circumstances to justify a warrantless search of the residence." In reaching this conclusion, the judge credited the State's testimony while affording "little weight to the testimony of defendant's daughter[,]" and none to defendant's own testimony because of his evident bias and inconsistencies. In finding both probable cause and exigent circumstances, the court reasoned:

The police officer's duty to investigate the potential burglary in progress precluded him from seeking a warrant. The following facts justified the officer's belief that a burglary was being committed: an anonymous call of a potential burglary, the information that the residence had previously been burglarized and unoccupied, the officer's observation of a suspect "peeking" through the second story window, the appearance that the defendant was under the influence of drugs, the inability of the defendant to sufficiently identify himself or produce a key to the residence, the contemporaneous statement by a neighbor that she did not recognize the defendant.

The potential that a burglary was currently in progress gave the officer sufficient exigency to search the premises without a warrant and to further investigate the residence for evidence of a burglary and a possible accomplice. Furthermore, the search of the second floor did not extend outside the scope of the exigency. Since the police officers had probable cause to believe that the defendant was burglarizing the residence, it was permissible for the officers to search the rest of the house to dispel this belief, and to determine if an accomplice was hiding.

Under the circumstances, it was reasonable for the police to search the residence in an attempt to apprehend a burglary suspect. Once the officers were inside, they were lawfully in the residence and could seize any evidence they found in plain view. See Coolidge v. New Hampshire, . . . 403 U.S. [443,] 465-68[, 91 S. Ct. 2022, 2037-38, 29 L. Ed. 2d 564, 582-83 (1971)]; State v. Bruzzese, . . . 94 N.J. [210,] 236 [(1983)] (holding that the plain view doctrine requires the police officer to lawfully be in the viewing area)[, cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)].

Based on the facts found above by a preponderance of the evidence, the search of the residence was supported by probable cause and exigent circumstances. Therefore, the motion to suppress the evidence is denied.

On appeal, defendant raises the following argument for our consideration:

AS THE POLICE LACKED PROBABLE CAUSE, THE SEARCH OF THE HOUSE AND ARREST OF DEFENDANT WAS VIOLATIVE OF HIS FOURTH AMENDMENT RIGHTS AND THE GUN AND DRUGS SEIZED MUST BE SUPPRESSED.

We reject this argument and affirm the denial of defendant's motion to suppress substantially for the reasons stated in Judge Ostrer's May 15, 2008 written opinion. Defendant's argument does not warrant any additional discussion. R. 2:11-3(e)(2).