STATE OF NEW JERSEY IN THE INTEREST OF M.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4976-08T1

STATE OF NEW JERSEY IN THE

INTEREST OF M.H., a minor.

____________________________________

September 2, 2011

Submitted February 2, 2011 - Decided

Before Judges R. B. Coleman and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FJ-15-490-09S.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant M.H., a juvenile, appeals from the denial of his motion to suppress evidence incident to the execution of a search warrant at his home. The motion judge found that exigent circumstances warranted entry into the home without knocking and announcing. Because we are satisfied that such a finding is supported by substantial credible evidence, we affirm.

During August 2008, controlled purchases of heroin were made by a confidential informant under the direction of the Little Egg Harbor Police Department (LEHPD) from an apartment in the Royal Timbers apartment complex occupied by M.H., his parents and siblings. On September 3, 2008, Detective Christopher Costa filed an affidavit in support of a search warrant for the apartment and any persons arriving at, departing from and located at the apartment who were reasonably believed to be associated with the investigation. Judge Damian Murray issued a search warrant, which authorized execution between the hours of 6:00 p.m. and 6:00 a.m. within ten days of September 3, 2008. The application did not seek authority to enter the dwelling without knocking, and the warrant did not include such authorization.

Detective Costa conducted a briefing with LEHPD police officers and Emergency Service Unit (ESU) members in preparation for the execution of the warrant. The officers arrived at the apartment complex between 8:20 p.m. and 8:35 p.m. For approximately forty-five to sixty-minutes, Detective Costa and Detective Joel Mahr conducted surveillance of the apartment from the woods behind the complex. They observed at least four individuals near the door of the target apartment in the breezeway.1 The detectives witnessed a male, J.C., pacing back and forth throughout the time of the surveillance. They assumed he was a lookout.

The detectives also observed F.H. and E.S. leave the apartment, walk to the back of the apartment building, engage in what they believed was a hand-to-hand drug transaction, after which F.H. and E.S. returned to the apartment. Based on his observations, Detective Mahr stated he "knew there were drugs in that building" and it was time to execute the search warrant. Detective Costa directed the team to execute the search warrant.

Throughout the surveillance, Detectives Costa and Mahr maintained communication with Sergeant Thomas J. Thornton, who commanded the members of the ESU positioned in a wooded area twenty to thirty yards from where the detectives were stationed. Detective Mahr, Detective Costa and Sergeant Thornton testified at the hearing on the motion to suppress that as the officers approached the apartment, there was a commotion and it became "chaotic." There was yelling of "5-0" and "police" by the numerous individuals outside of the apartment. Sergeant Thornton testified that he believed the yelling was alerting the individuals inside the apartment of the police presence so that the individuals could destroy evidence or harm the officers executing the warrant. This prompted Sergeant Thornton to call a "compromise," which is called when there is a safety issue regarding the execution of a search warrant. After the compromise was called, the team abandoned their intention to knock-and-announce their presence before entering the apartment and conducting their search.

As a result of the search, the officers found marijuana, heroin, a brass knuckle, an oriental throwing star, and a paintball gun. Several individuals, including defendant M.H., were found inside the apartment, and five were arrested. A complaint was filed in Ocean County, Chancery Division, Family Part, Docket No. FJ-15-490-09S, charging defendant M.H. with possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count one); possession of controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count two); possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(11) (count three); possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count four); and conspiracy to commit the aforementioned offenses with another, N.J.S.A. 2C:5-2 (count five).

On October 24, 2008, defendant filed a motion to suppress evidence, which was denied after a hearing conducted on December 3 and December 23, 2008. Thereafter, defendant pled guilty to fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3). In accordance with the plea agreement, defendant was sentenced to sixty days in the Ocean County Detention Center and a fifteen-month period of probation. Defendant also was sentenced to fifty hours of community service, mandatory enrollment in an education program and was assessed two $30 VCCB fees, among other fees. The remaining charges in the complaint against defendant were dismissed. On June 11, 2009, defendant filed his notice of appeal in this matter.

Defendant raised the following arguments for our consideration on the appeal:

POINT I: THE MOTION JUDGE ERRED IN DENYING M.H.'S MOTION TO SUPPRESS EVIDENCE.

A. The trial judge erred in finding that exigent circumstances were present at the time of the execution of the search warrant.

i. Preservation of

evidence

ii. Officers' peril

iii. Frustration of an arrest

B. The trial judge erred in denying the motion to suppress because even if exigent circumstances existed the officers created them.

I.

We start our analysis by reciting the well-established principle that controls our review. "[A]n appellate court reviewing a motion to suppress 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) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). "The aim of our review is to determine whether the judge's findings are supported by evidence in the hearing transcript." State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990). We give particular "deference to those findings . . . which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We "should not disturb the trial court's findings merely because [we] might have reached a different conclusion were [we] the trial tribunal or because the trial court decided all evidence or inference conflicts in favor of one side in a close case." Ibid. (internal quotation marks and citation omitted).

The warrant requirement embodied in both the Fourth Amendment to the United States Constitution, U.S. Const. amend. IV, and in paragraph 7 of Article I of the New Jersey Constitution, N.J. Const. art 1, 7, limits the power of the sovereign to enter our homes and seize our persons or our effects.

[State v. Robinson, 200 N.J. 1, 3 (2009).]

"The requirement that law enforcement officers knock and announce their presence before entering a dwelling predates our federal and State constitutions." State v. Johnson, 168 N.J. 608, 615 (2001). "Although an integral part of the mosaic of procedural mechanisms designed to shield and protect individual rights, 'the requirement that law enforcement officers first knock and announce their presence before entering a dwelling is not absolute.'" Robinson, supra, 200 N.J. at 14 (quoting Johnson, supra, 168 N.J. at 616. "Exceptions have been allowed where (1) immediate action is required to preserve evidence; (2) the officer's peril would be increased; or (3) the arrest [or seizure] would be frustrated." Ibid. (quoting State v. Fair, 45 N.J. 77, 86 (1965)). Ultimately, "the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering." State v. Goodson, 316 N.J. Super. 296, 302 (App. Div. 1998).

There is, however, no "blanket exception" to the knock-and-announce rule in drug cases consistent with the Fourth Amendment. Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421-22, 137 L. Ed. 2d 615, 624 (1997). "'In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.'" Simmons v. Loose, 418 N.J. Super. 206, 225 (App. Div. 2011) (quoting Richards, supra, 520 U.S. at 394, 117 S. Ct. at 1421, 137 L. Ed. 2d at 624).

In the present case, defendant complains that the motion court erred in denying his motion to suppress evidence seized in the execution of the warrant because (1) there were no exigent circumstances to justify the officers' failure to follow the knock-and-announce requirement and (2) if there were exigent circumstances, it was the officers who created the exigency by executing the warrant when it was apparent that a lookout was present. We reject these arguments substantially for the reasons stated by Judge James M. Blaney in his oral decision on December 23, 2008.

Contrary to defendant's contentions, Judge Blaney determined that exigent circumstances were present, justifying the LEHPD officers' entry into defendant's home. The judge determined immediate action was required to preserve evidence, to reduce the risk of peril to the law enforcement team and to avoid frustration of the seizure. Fair, supra, 45 N.J. at 86. The judge stated:

[The officers] had enough reason to suspect that there were things going on that they did not create, but were created by all of the facts in this case, particularly the chaos that was talked about, the yelling and screaming that was talked about, the fact that there was a lookout, and the fact that they had prior information about prior dealings and prior weapons charges, and all of those things, to me, saw that they did not create the exigent circumstances, but rather, they were created by the participants in this and the lookouts in this.

The judge elaborated further:

[T]he Court does specifically find that [Detective Thornton] . . . testified that, when he, in fact, was going towards the breezeway, he got there and a specific question, I believe, was asked on cross examination what his intent was at that time. And he specifically said that he was still approaching the building and he was still under the impression that he was the one giving the commands at that point in time, that it was going to be a knock-and-announce warrant, still as he's going into the area coming into the breezeway[.]

But when he gets to that particular area, he is confronted with a situation that provides him with, in the Court's opinion, the unforeseen circumstances that the courts talk about, particularly in State v. Goodson, where the officer who is in charge at that point in time has to make a decision as to whether or not there are reasons to set aside the search warrant and proceed with a no-knock provision at that time.

. . . .

[T]he Court finds that, at that point in time, when Det. Thornton was about to begin entry into the stairway and begin entering into performing the search of the premises, that, at that point, he felt -- and he was in charge -- that there was a requirement for immediate action to preserve evidence.

The motion judge made particular mention of a warning given by a person or persons who appeared to be lookouts:

But this lookout that [Detective Thornton] . . . saw and he thought was a lookout said something that [Detective Thornton] considered to be a warning to those people that were possibly watching from inside the premises because he was a lookout that that would also give him the reasonable expectation that those people inside could see this person, could hear this person, could see the girls running, could see them yelling "police," and that they could then destroy evidence also during the period of time between when they got to the door and were able to gain entry.

In the judge's assessment, the risk of peril to the officers was increased by the circumstances:

With respect to the officer's peril, which is exigent circumstance number (2), the Court finds that there is evidence and there was testimony and there is evidence in the warrant that there had been prior service calls or calls for service made to this actual residence; that the police had direct knowledge of incidents that had occurred in and around this particular residence; and that they also had the evidence of prior records of both the defendant in this case and other people that were in the residence and thought to be in the residence. And that included drug charges against those individuals as well as possession of weapons.

So, the officers, seeing that as well as seeing the chaos, as they specifically pointed out, on going into the breezeway and that area, they, in fact, had the reasonable right to suspect that there might be some peril for the officers involved in this search and they had the right, in the Court's opinion, then to also use that as an exigent circumstance, that the officer's peril would be increased by if they had to go up and knock on the door since they were faced with all of the circumstances involved in this.

Finally, in addressing the potential frustration of the arrest, Judge Blaney stated:

[T]he officers, by using a knocking provision, would have possibly frustrated an arrest. And I say that because there are people running away from them who they suspect were involved in drug buys outside the premises, were involved in being lookouts. And they don't know who, in fact, saw them or heard the lookout outside yelling and the girls yelling, and they don't know whether the others inside had an ability to exit somehow without them being arrested.

So, the Court finds in this case that all three exigent circumstances, as set forth in State v. Goodson, are present in this case and gave the officers the right to engage in a no-knock search at this point in time and the Court will not sustain the request of the defendant in this case to suppress the evidence but, rather, finds that it is, in fact, admissible based upon all of that information.

And the Court, finally, would like to comment and say that these cases all speak of the totality of the circumstances involved and . . . this could have been cleaner, this could have been done in a better manner . . . [and] the Court finds that under the totality of circumstances of this particularly unique situation that the police were faced with, all three exigent circumstances, at the time of the raid going on, and therefore, the Court finds that for that reason also the search is proper.

We are satisfied after reviewing the evidence in its totality and in light of the deferential scope of our review, that the State met its burden of showing that LEHPD's entry into the dwelling without knocking and announcing was appropriate and necessary. The motion judge thoroughly analyzed the facts of the case and balanced the interests of the occupants of the dwelling against the safety interests of the law enforcement officers executing the search warrant. We affirm the judgment of the motion court, substantially for the reasons expressed in that court's opinion, which we have quoted at length.

Affirmed.

1 The door of the apartment is accessible through an open common area in the middle of the building referred to as the "breezeway."