STATE OF NEW JERSEY v. JACOB DOERR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JACOB DOERR and AMANDA

PETRUNIS,

Defendants-Respondents

_________________________________

September 26, 2014

Submitted July 1, 2014 Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 12-12-1127.

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (Sarah Slachetka, Assistant Prosecutor, on the brief).

Robinson Andujar Robinson, LLC, attorneys for respondents (Arnold Robinson, on the brief).

PER CURIAM

The State appeals from a Law Division order suppressing

evidence seized by State Police from defendants' home on June 1, 2012. The motion judge determined that the State had not met its burden of proof to establish that the warrantless entry by police was justified under the so-called "plain smell doctrine" or by the "emergency aid doctrine." The State argues that the motion judge erred in finding that defendants' version of events was credible and that defendants' factual averments "were completely and utterly contradicted by the real-time motor vehicle recording [from a State Police car] (MVR), which was played during the State's case." We have carefully considered the State's arguments in light of the record and the law, and we affirm.

I.

We derive the following facts from the record of the suppression hearing.1 On June 1, 2012, at approximately 3:30 p.m., L. Petrunis (LP) was speaking on the telephone with her daughter, defendant Amanda Petrunis (defendant), when she heard a "verbal exchange" after which the phone "went dead." Concerned that her daughter "was being harmed," LP had her husband contact the State Police to advise them that their daughter "was being injured" and "had been pushed down the steps." The State Police dispatcher then directed Troopers Drake and Sharpless to the Cumberland County property where she lived with her boyfriend, defendant Doerr. According to Trooper Sharpless' report, dispatch stated that defendant's father reported he believed his daughter -"Amanda"- residing at a certain address had been assaulted by her boyfriend. Trooper Sharpless arrived at the small one-family residence, followed by Firefighter Wolf and Trooper Drake. In the interim, defendant called her mother to report she was fine, that she and Doerr simply had an argument and that no assault had occurred. When told that her father had called the police, defendant asked her mother to contact them and "cancel." However, the troopers and Wolf had already arrived at defendant's home.

The troopers had parked their police vehicles near the house and then saw a woman, later identified as defendant, walk toward them from the side of the house. Defendant appeared "extremely nervous" and told the troopers, "you're not needed here, everything's fine. Go away. We're good." Trooper Drake, who claimed not to know who the woman was and whether she had been the subject of the report, noted that she appeared uninjured, without bruises and not in need of medical attention.

Wolf, who had been a first responder in the area for approximately thirty years, stated he knew defendant and that she had identified herself as "Amanda" to one of the troopers. Wolf also confirmed that defendant was "doing fine" and "was not injured at all."

The troopers nonetheless stated to defendant that they just could not leave at that point and asked, at least twice, if she would allow them into her home. Defendant made it "very clear" to the troopers, however, that they could not enter the house and should leave the property. Trooper Sharpless then told defendant that if she did not comply with their requests they were "going to arrest her," according to Trooper Drake.

At some point, defendant used her cellphone to call Doerr and advised him the police were there and were looking for him. She then handed the phone to Trooper Sharpless who spoke on the phone with Doerr. Defendant asserted that after that call was completed, she retrieved her phone and began walking back to the house. As she was walking toward the rear door of the house she called her mother on the cellphone, entered the house, and slid the glass door closed.

Defendant stated that Trooper Drake then slid the glass door open, walked into the house, and "started yelling" at her. LP testified that she was speaking with her daughter on the phone at the time and "could hear the sliding door." Defendant told her she was being arrested and "the phone connection went dead."

By contrast, Trooper Drake stated that Sharpless was speaking on the phone with Doerr when defendant turned to walk back to the house. He said he followed her "because our job wasn't complete" and they had to "ma[k]e sure everybody was safe." He followed her up the short flight of steps to the house and tried to prevent her from closing the door. He said, "I put my hand on the door" and simultaneously smelled "the obvious odor of raw marijuana from inside the house."

In his report, however, Trooper Sharpless stated as follows,

While I spoke with Doerr, utilizing Petrunis' cellular phone, Trooper Drake and I observed that Petrunis began walking toward the residence. When Petrunis approached the residence she began closing the door even though we still had her cellular telephone. Subsequently, Trooper Drake approached the door, and informed Petrunis that we needed to ask her additional questions, to ensure that she had not sustained any injuries, and to return her cellular phone to her.

When Trooper Drake and I approached and entered the residence with Petrunis, we immediately detected the strong odor of raw marijuana inside the residence. In addition, while speaking with Petrunis she continued to walk around the interior of the house, pacing through the living room and kitchen area. When she walked toward the kitchen, I followed her and observed a large kitchen knife on the counter. As a result, I proceeded to move the knife to a less accessible location, out of concern for our safety. While doing so, I observed a circular digital scale on the kitchen counter. On top of the scale, I observed what appeared to be shakes of a greenish brown vegetation, which I suspected to be marijuana. It should be noted, we did not observe any evidence that an assault had occurred inside the residence, and Petrunis did not provide any additional information regarding the assault.

Based upon these observations and other evidence seized from the houses pursuant to a search warrant based on the troopers' observations, an indictment was returned charging defendant and Doerr with fourth-degree possession of marijuana, contrary to N.J.S.A. 2C:35-10a(3) (count one); and second-degree possession of more than five pounds of marijuana with the intent to distribute, contrary to N.J.S.A. 2C:35-5b(10)(b) (count two).

The motion judge suppressed the evidence seized from the home, after finding defendant's testimony "frankly was believable" and that the State had not met its burden of proof "that the officer smelled the marijuana outside the house and therefore went in only because he smelled the marijuana." He added it was "pretty obvious from the trooper's testimony that he was going in regardless."

As to the emergency aid doctrine, the judge noted that under the circumstances of this case, where there were no injuries and the putative victim stated no assault had occurred and that her mother had "panicked" in instigating the initial call, the single fact that a domestic violence call had been made does not justify police to "sweep a house."

This appeal followed.

II.

We begin by setting forth the basic principles which guide our analysis. Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, 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.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, we defer to a trial judge's 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 . . . ." State v. Davila, 203 N.J. 97, 109-10 (2010).

When we are satisfied that the findings of the trial court could reasonably have been reached on the record, "[our] task is complete and [we] should not disturb the result, even though [we have] the feeling [we] might have reached a different conclusion were [we] the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then [we] should review 'the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162). "[We] owe[] no deference to the trial court in deciding matters of law. When a question of law is at stake, [we] must apply the law as [we] understand[] it." Ibid. (citations omitted).
In near-identical language, both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey State Constitution guarantee "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and provide that "no [w]arrants shall issue, but upon probable cause." U.S. Const. amend. IV; N.J. Const. art. I, 7. Accordingly, "[o]ur constitutional jurisprudence expresses a clear preference for government officials to obtain a warrant issued by a neutral and detached judicial officer before executing a search." State v. Edmonds, 211 N.J. 117, 129 (2012) (citing State v. Frankel, 179 N.J. 586, 597-98 cert. denied sub nom., Frankel v. New Jersey, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)). Moreover, courts have historically applied "a more stringent standard of the Fourth Amendment" in evaluating searches of homes, State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), as this is the "chief evil" at which the Amendment is directed. State v. Davila, 203 N.J. 97, 112 (2010) (quoting United States v. U.S. Dist. Ct., 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)).

Thus, warrantless searches particularly of a home are presumptively invalid. Edmonds, supra, 211 N.J. at 129. The State bears the burden of proof by a preponderance of evidence, State v. Johnson, 193 N.J. 528, 552 (2008), and must establish one of the "few specifically established and well-delineated exceptions to the warrant requirement." State v. Frankel, supra, 179 N.J. at 598 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298-99 (1978)) (internal quotations omitted). Furthermore, the State's proofs are "subject[] to particularly careful scrutiny." State v. Bolte, 115 N.J. 579, 583 (1989).

Given these principles, we need not even reach the issue as to whether a police officer's "plain small" of marijuana purportedly emanating from the interior of a house would justify a police officer's warrantless entry into the house to conduct a search in these circumstances. Rather, we perceive no basis to disagree with the motion judge's determination that the State had not met its burden of proof establishing that the troopers were outside the premises when they first detected the odor of raw marijuana. The judge believed defendant was credible in her testimony that Trooper Drake entered the house by sliding open the closed door to the rear of the premises. Moreover, Trooper Sharpless' report stipulated into evidence could not be clearer that the troopers detected the odor of raw marijuana only after entering the house.

The State's insistence that the audio recording on the MVR supports their factual averments is not accurate. The most that can be said of the recording is that there is a fact question as to whether defendant had received her phone back prior to the police intrusion into the home. The recording, however, does not contradict the statement of Trooper Sharpless in his report that the troopers entered the house prior to detecting any odor of marijuana, or the testimony of defendant respecting Trooper Drake's opening the rear door to the premises.

Likewise, we have no basis to disagree with the motion judge's determination that, in the circumstances of this case, the sole fact that a third-party had reported a possible domestic violence incident is insufficient to invoke application of the emergency aid doctrine to justify a warrantless intrusion into the home. Under the emergency-aid doctrine, "[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Wayne v. United States, 318 F.2d 205, 212, 115 U.S. App. D.C. 234 (D.C. Cir.), cert. denied, 375 U.S. 860, 84 S. Ct. 125, 11 L. Ed. 2d 86 (1963). This explanation of the rationale for the emergency-aid exception has repeatedly been quoted and followed by the United States and the New Jersey Supreme Courts. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 1947, 164 L. Ed. 2d 650, 657-58 (2006) (quoting Mincey, supra, 437 U.S. at 392-93, 98 S. Ct. at 2413, 57 L. Ed. 2d at 300 (quoting the passage)); Edmonds, supra, 211 N.J. at 130 (quoting Frankel, supra, 179 N.J. at 600).

In State v. Edmonds, the New Jersey Supreme Court held that "the subjective motivation of a police officer is irrelevant in determining whether a search or seizure is unreasonable under the Fourth Amendment" or under Article I, Paragraph 7 of the State Constitution. 211 N.J. at 131-33 (recognizing the inconsistency between Frankel, which required consideration of the officer's subjective motivation, and Brigham City, which precludes it).

The Court further held that to have a search upheld under "the emergency-aid doctrine, the State must prove that (1) the officer had 'an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or to prevent serious injury' and (2) there was a 'reasonable nexus between the emergency and the area or places to be searched.'" Id. at 132 (quoting Frankel, supra, 179 N.J. at 600). The Court explained that "if police officers 'possess an objectively reasonable basis to believe' that prompt action is needed to meet an imminent danger, then neither the Fourth Amendment nor Article I, Paragraph 7 demand that the officers 'delay potential lifesaving measures while critical and precious time is expended obtaining a warrant.'" Id. at 133 (quoting Frankel, supra, 179 N.J. at 599).

The Court also stated that the emergency-aid doctrine "is not a general grant of authority to conduct warrantless searches." Id. at 133. Thus, "[w]hen the exigency that justifies immediate action dissipates, the rationale for searching without a warrant is no longer present." Id. at 134.

As we noted earlier, the State bears the burden of establishing that the actions of the troopers fit within the exception to the warrant requirement. Here, the purported victim of the third-party domestic violence call appeared and spoke to the troopers; was uninjured and needed no medical attention; verified that her boyfriend was not home; put the officers in contact with her boyfriend, who agreed to meet them at police headquarters; and asked them to leave. The troopers thus had available to them a host of reasonable options to complete their investigation and no basis to conclude that an immediate warrantless entry into the home was necessary to address an on-going emergency.

Affirmed.

1 At the suppression hearing, the State proffered the testimony of State Trooper Drake, several photographs of the premises, an audio tape of a portion of the encounter derived from the Troopers' MRV at the scene, and, upon stipulation by the defense, the report of Trooper Sharpless in lieu of his live testimony. The defense proffered the testimony of Firefighter First Responder William Wolf, L. Petrunis, and defendant Amanda Petrunis.