STATE OF NEW JERSEY v. JAMAR M. BATTLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAR M. BATTLE,

Defendant-Appellant.

_____________________________

November 7, 2016

Submitted September 27, 2016 Decided

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-06-1323.

Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa A. Aiello, Assistant Deputy Public Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).

PER CURIAM

Following the denial of a motion to suppress physical evidence, including a handgun, seized from his girlfriend's apartment, defendant Jamar Battle pled guilty to second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b). Defendant was sentenced to five years in prison with five years of parole ineligibility. Having reserved his right, defendant appeals the denial of his motion to suppress. We affirm.

I.

The facts were developed at a suppression hearing. On January 28, 2013, a robbery occurred outside a store in Jersey City. Surveillance video showed the suspect fled into an apartment building located on Princeton Avenue. Thus, the police canvassed the apartment building looking for information concerning the suspect. During that canvas, officers knocked on the door of apartment four and defendant answered. Defendant gave the police his name and explained that he was babysitting his girlfriend's teenage son.

The officers who conducted the canvas collected information concerning everyone they spoke to at the apartment building and prepared a report. That report was then turned over to Lieutenant Nicola Flora, who conducted background checks on all the individuals that had been spoken with during the canvas. The report did not state whether defendant was a resident at Princeton Avenue; rather, the report identified defendant as someone "attached to" apartment four.

A search of the HIDTA law enforcement database revealed that defendant had an outstanding arrest warrant issued by the Newark Municipal Court.1 Searches of other databases also disclosed that defendant had several different listed addresses, including an address in Newark. No database indicated that defendant was residing or had resided at Princeton Avenue in Jersey City. The databases also disclosed that defendant had a criminal record, including convictions for drug-related offenses and a burglary.

After learning that defendant had an arrest warrant, Lieutenant Flora and several other officers went to Princeton Avenue to arrest him. They initially arrived at approximately 9 a.m., but no one answered the door at apartment four. The officers returned later that same day after 4 p.m. When they knocked on the door at apartment four, defendant opened the door. He was wearing only sweatpants and he had no shirt or shoes on. Defendant was informed that the police had a warrant for his arrest and the officers stepped inside the apartment and placed defendant under arrest. After defendant was handcuffed, he was placed on the couch and asked whether he wanted a shirt and shoes. Defendant indicated that he did want such clothing and when asked where the clothing was, defendant motioned with his head to indicate that the clothing was in an adjacent bedroom. Two officers then stepped into the bedroom and saw a handgun sitting on the dresser. The officers seized the handgun.

Thereafter, defendant was questioned and he informed the officers that the apartment was rented by his girlfriend, C.B.2 The police called C.B. and requested that she come to the apartment. When C.B. arrived, she was informed that the police had found a gun in the apartment and she was asked for consent to search the apartment. C.B. was then provided with a written consent form, which advised her of her right to refuse consent and her right to stop the search after the consent was given. C.B. signed the consent to search form.3

The police then searched the apartment and seized a black ski mask, two black-handled knives, a black sweatshirt, and a red head rag. Following his arrest, defendant was informed of his Miranda rights,4 and he waived those rights. Defendant then told the police that the handgun belonged to him.

A grand jury indicted defendant for three crimes: second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b). Thereafter, defendant moved to suppress the physical evidence seized from his girlfriend's apartment.

The trial court conducted a six-day evidentiary hearing. During that hearing, eight witnesses testified and the parties submitted a number of documents into evidence. The motion judge then heard oral argument and, on July 10, 2014, the judge issued an order and a written opinion denying defendant's motion to suppress.

Concerning the entry into the apartment, the motion judge found that the officers who executed the arrest warrant had an objectively reasonable basis to believe that defendant resided in the apartment and that he was at the apartment when they went to execute the warrant. The judge also found that those officers were not aware that defendant had previously told the canvassing officers that he was at the apartment babysitting his girlfriend's son. In addition, the motion judge found that it was only after the handgun had been seized that the officers questioned defendant and learned that the apartment belonged to defendant's girlfriend.

The motion judge also reasoned that the arrest of defendant was lawful because it did not involve the entry and search of the girlfriend's apartment. In that regard, the judge found that the police had gone to the door of the apartment, knocked, and defendant answered the door. Thus, the motion judge reasoned that defendant was encountered at the door and the police only entered the apartment to effectuate the physical arrest of defendant and to allow him to get fully clothed.

With regard to the handgun, the motion judge found that it was lawfully seized under the plain view exception. Specifically, the judge found that the officers were lawfully in the apartment to arrest defendant on the warrant. Two officers then lawfully entered the bedroom because, when the officers asked defendant where his clothes were, defendant nodded his head in the direction of the bedroom. Finally, the motion judge found that the officers had probable cause to associate the gun with criminal activity. One of the officers who entered the bedroom testified that he had been made aware that defendant had a criminal record. Thus, the officer believed that defendant was not legally allowed to have a weapon.

As already noted, after the court denied the motion to suppress, defendant pled guilty to second-degree certain persons not to possess a weapon. He was sentenced to the minimum term of five years in prison for a second-degree conviction, with a five-year period of parole ineligibility.

II

On appeal, defendant challenges the denial of his motion to suppress and he argues

THE OFFICERS' ENTRY INTO [DEFENDANT'S] GIRLFRIEND'S APARTMENT FOR THE PURPOSE OF ARRESTING [DEFENDANT] ON AN OUTSTANDING WARRANT FOR A CURFEW VIOLATION WAS ILLEGAL BECAUSE THE OFFICERS DID NOT HAVE AN OBJECTIVELY REASONABLE BASIS TO BELIEVE THAT [DEFENDANT] RESIDED IN HIS GIRLFRIEND'S APARTMENT

Thus, defendant focuses his appeal on the officers' entry into his girlfriend's apartment and argues that the entry was illegal. To analyze that contention, we will first examine the entry into the apartment and then analyze whether the handgun was lawfully seized under the plain view doctrine.

A. The Entry into the Apartment

The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protects individuals from unreasonable searches and seizure. U.S. Const. amend. IV; N.J. Const. art. I, 7. Our Supreme Court has recently reiterated that "[h]omes are particularly protected spaces under those constitutional guarantees." State v. Cushing, 226 N.J. 187, 198 (2016).

An arrest warrant generally provides no authority for the police to enter a home or engage in a search of that home. Steagald v. United States, 451 U.S. 204, 213-14, 101 S. Ct. 1642, 1648, 68 L. Ed. 2d 38, 46 (1981); Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388, 63 L. Ed. 2d 639, 661 (1980); State v. Miller, 342 N.J. Super. 474, 494 (App. Div. 2001). Accordingly, when law enforcement officers enter a dwelling to execute an arrest warrant without a search warrant, the officer must have an "objectively reasonable bases for believing that the person named in the warrant both resides in the dwelling and is within the dwelling at the time." Miller, supra, 342 N.J. Super. at 479.

In reviewing a motion to suppress, we defer to the factual and credibility findings of the trial court, "so long as those findings are supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded "because the 'findings of the trial judge . . . are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Reese, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court should disregard those findings only when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). The legal conclusions of the trial court "are reviewed de novo." Id. at 263.

Applying these principles, we discern no basis for disturbing the motion judge's determination that the officers conducted a lawful execution of the arrest warrant. Here, the motion judge heard the testimony of eight different witnesses and then made specific findings of fact. With regard to the execution of the arrest warrant, the judge found that the officers who executed that warrant had an objectively reasonable basis to believe that defendant resided in apartment four at Princeton Avenue.

To dispute that fact finding, defendant argues that Lieutenant Flora did not have an objectively reasonable basis to believe that defendant resided at Princeton Avenue because the database searches that he conducted did not list Princeton Avenue as one of defendant's residences. Defendant's argument simply ignores the fact finding made by the motion judge. The motion judge considered that contention, but found that Lieutenant Flora had been provided with information indicating that defendant was at apartment four at Princeton Avenue when other officers conducted a canvas of that building. The motion judge heard the testimony of Lieutenant Flora and, although he made no express credibility finding, he implicitly accepted Lieutenant Flora's testimony that he believed that defendant was residing at Princeton Avenue when he and the other officers went to execute the arrest warrant. Thus, there was credible evidence from which the motion judge could find that the officers who executed the arrest warrant reasonably believed that defendant was residing in apartment four at Princeton Avenue.

We also agree with the motion judge's alternative reasoning concerning the execution of the arrest warrant. The motion judge correctly recognized that the rules developed by the United States Supreme Court in Payton and Steagald, as well as our case in Miller, are designed to protect against the entry into or search of a home. Payton, supra, 445 U.S. at 603, 100 S. Ct. at 1388, 63 L. Ed. 2d at 661; Steagald, supra, 451 U.S. at 213-14, 101 S. Ct. at 1648, 68 L. Ed. 2d at 46; Miller, supra, 342 N.J. Super. at 494.

Here, the police encountered defendant at the door of the apartment. In other words, the police never entered C.B.'s apartment to search for defendant. Instead, they went to the door of the apartment, knocked, and defendant answered. At that point, defendant was lawfully subject to arrest. Because defendant was wearing only sweatpants, the police appropriately stepped into the apartment to place him under arrest and to allow him to become fully clothed. Unlike the factual circumstances giving rise to the rulings in Payton and Steagald, the police did not enter the dwelling to locate defendant and conduct searches incident to defendant's arrest. Payton, supra, 445 U.S. at 603, 100 S. Ct. at 1388, 63 L. Ed. 2d at 661; Steagald, supra, 451 U.S. at 213-14, 101 S. Ct. at 1648, 68 L. Ed. 2d at 46.

B. The Seizure of the Handgun

The plain view doctrine is a recognized exception to the Fourth Amendment's requirement for police to obtain a warrant prior to conducting a search. Texas v. Brown, 460 U.S. 730, 735, 103 S. Ct. 1535, 1539, 75 L. Ed. 2d 502, 509 (1983); State v. Bruzzese, 94 N.J. 210, 236 (1983). There are three requirements for the plain view doctrine

First, the police officer must be lawfully in the viewing area; second the officer has to discover the evidence "inadvertently," meaning that he did not know in advance where evidence was located nor intend beforehand to seize it; third, it has to be "immediately apparent" to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.

[Bruzzese, supra, 94 N.J. at 236 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465-70, 91 S. Ct. 2022, 2037-40, 29 L. Ed. 2d 564, 582-85 (1971)).]

Here, the trial judge found that all three of the requirements of the plain view doctrine were satisfied. First, the officers were lawfully at the apartment to arrest defendant on the outstanding warrant. Second, two officers went into the bedroom to retrieve defendant's clothes after defendant indicated that that was where the clothes were located. Third, one of the officers who went into the bedroom knew that defendant was a person who did not have the right to have a weapon and, thus, when he saw the handgun, he recognized it as a potential illegally possessed weapon. All of these findings are supported by substantial credible evidence in the record and we discern no basis to set aside the judge's order denying the motion to suppress.

Affirmed.

1 HIDTA is an acronym for High Intensity Drug Trafficking Area Program, which provides assistance to federal, state and local law enforcement agencies operating in areas determined to be critical drug-trafficking regions in the United States. See www.whitehouse.gov/ondcp/high-intensity-drug-trafficking-area-program.

2 We use initials for defendant's girlfriend to protect her privacy interests.

3 Although defendant challenged the validity of the consent in the trial court, he has not raised that issue on this appeal.

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).