State v. Alice O'Donnell

 

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                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).

                                        State v. Alice O'Donnell (A-54-09)

(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the
Appellate Division is based substantially on the reasons expressed in Judge Skillman's opinion below.)

Argued April 26, 2010 -- Decided July 20, 2010

PER CURIAM

  The Court considers whether evidence observed in plain view during a police entry into a residence to provide
emergency aid may be seized without a warrant even though there is a short delay between the emergency aid entry
and the seizure of evidence by other officers responsible for processing the crime scene.

    Around 12:45 p.m. on February 22, 2005, the Highland Park Police Department received a 9-1-1 call from a
sister of defendant Alice O'Donnell, reporting that there was an unconscious six-year-old child at an apartment in
Highland Park. Several Highland Park police officers responded to the scene. After entering the apartment, the
officers found O'Donnell's deceased son in a bedroom. One officer, Lieutenant Golden, entered through the back
door, then walked into the kitchen to inquire from O'Donnell's sister where he could find the child's mother. The
sister directed the officer to the living room, where he found O'Donnell sitting on a couch with dried blood on her
hands. Although Lieutenant Golden attempted to question O'Donnell, her responses were largely incoherent.

    The supervisor of the Highland Park investigation unit, Sergeant Vassallo, arrived at the apartment shortly after
Lieutenant Golden. In the bedroom, he observed small amounts of blood on the bedding near the child's body and a
small amount of vomit on the pillow. The Sergeant also observed handwritten notes to the police and family
members and pictures in the kitchen. Officers took O'Donnell into custody and transported her to police
headquarters. They also called the homicide unit in the Middlesex County Prosecutor's Office and secured
O'Donnell's apartment by stationing officers at the entrances. Investigators from the Prosecutor's Office arrived
thirty to forty minutes later and entered the apartment with Sergeant Vassallo. At this time, the body of the deceased
child was still in the apartment. The Prosecutor's Office investigators seized the bedding from the child's bed and
the handwritten notes and other evidence Sergeant Vassallo had observed upon his initial entry.

   At headquarters, O'Donnell was questioned and gave inculpatory statements. Based on information obtained
from O'Donnell, the Prosecutor's Office investigators and Sergeant Vassallo returned to O'Donnell's apartment the
next day, February 23, 2005, and seized medications found at various locations in O'Donnell's bedroom.

   O'Donnell was indicted for murder. She filed a motion to suppress the evidence seized from her apartment.
Based on evidence presented at an evidentiary hearing, the trial court concluded that the police entry into
O'Donnell's apartment was justified under the emergency aid exception to the warrant requirement and that the
seizure of evidence observable at that time was proper under the plain view doctrine. However, the judge concluded
that the emergency that justified the initial entry into the apartment did not continue when the officers returned the
next day and searched for additional evidence without obtaining a warrant. As a result, the judge denied
O'Donnell's motion to suppress as to the evidence seized on February 22, 2005, but granted it as to the additional
evidence seized on February 23, 2005.

   O'Donnell appealed only the denial of her motion to suppress the evidence seized in her apartment on February
22, 2005. The Appellate Division affirmed the trial court's decision. 
408 N.J. Super. 177 (App. Div. 2009). The
panel considered and rejected O'Donnell's argument that because the Highland Park police officers did not
immediately seize that evidence, but instead secured the apartment until the arrival of members of the Prosecutor's
Office homicide unit, the investigators of that unit were required to obtain a warrant before seizing evidence that had
been observed in plain view by the Highland Park police officers. In part, the panel explained that only thirty to

forty-five minutes elapsed between when the Highland Park police officers secured the apartment and the
Prosecutor's Office investigators arrived, and there was no evidence that the Prosecutor's Office investigators
searched any part of the apartment that was not observable upon the initial entry by the Highland Park officers, or
that Prosecutor's Office investigators seized any item of evidence in addition to items that could have been seized by
Highland Park officers if they had been authorized to complete the investigation.

HELD: The judgment of the Appellate Division, which upheld the trial court's denial of defendant Alice
O'Donnell's motion to suppress evidence, is affirmed substantially for the reasons expressed in Judge Skillman's
opinion.

1. The Court summarizes the question presented in this case as whether police are allowed to remain at a murder
site after a proper entry under the emergency aid exception to the warrant requirement, thereby authorizing the
lawful seizure of evidence in plain view. The Court emphasizes that, when determining the propriety of a
warrantless seizure, the question is not whether the police could have done something different, but whether their
actions, when viewed as a whole, were objectively reasonable. (Pp. 1--4)

2. Here, the propriety of the access indisputably was established by the emergency aid exception to the warrant
requirement, the continued police presence at the site of the dead body was authorized until the scene could be
turned over to the medical examiner without a break in custody, and the seizure of evidence of a crime was
authorized by the plain view doctrine. In respect of the discrete issue presented in this appeal--whether it was
proper for police to remain on the premises and seize evidence after discovery of the dead boy abated the initial
emergency--the conclusion is clear: because the corpse remained at what was obviously the death scene and the
police had the obligation to retain control of the premises until that control could be transferred to the medical
examiner, the police had a continuing right to remain present at the scene. Thus, their continued presence was
consonant with constitutional principles, and the plain view seizures performed during that period were
constitutionally authorized. (Pp. 2--7)

   The judgment of the Appellate Division is AFFIRMED.

  CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO
and HOENS join in this PER CURIAM opinion.




                                                       -2-

                                         SUPREME COURT OF NEW JERSEY
                                           A-
54 September Term 2009


STATE OF NEW JERSEY,

     Plaintiff-Respondent,

          v.

ALICE O'DONNELL,

     Defendant-Appellant.


          Argued April 26, 2010 ­ Decided July 20, 2010

          On certification to the Superior Court,
          Appellate Division, whose opinion is
          reported at 
408 N.J. Super. 177 (2009).

          Stephen P. Hunter, Assistant Deputy
          Public Defender, argued the cause for
          appellant (Yvonne Smith Segars, Public
          Defender, attorney).

          Joie D. Piderit, Assistant Prosecuor,
          argued the cause for respondent (Bruce
          J. Kaplan, Middlesex County Prosecutor,
          attorney).

          Frank Muroski, Deputy Attorney General,
          argued the cause for amicus curiae
          Attorney General of New Jersey (Paula
          T. Dow, Attorney General, attorney).


     PER CURIAM

     The judgment of the Appellate Division is affirmed

substantially for the reasons expressed in the thoughtful and

thorough opinion by Judge Skillman.    State v. O'Donnell, 
408 N.J. Super. 177 (App. Div. 2009).     We add only the following.

     According to defendant Alice O'Donnell, the question

presented in this appeal is "[w]hether the warrantless entry

into defendant's home for the specific purpose of searching and

seizing evidence in a criminal murder investigation . . . 30 to

45 minutes after the original emergency was over and the police

had exited and secured the home" violated constitutional

strictures.   Stripped to its bare bones, the question presented

is whether the police are allowed to remain at a murder site

after a proper entry under the emergency aid exception to the

warrant requirement, thereby authorizing the lawful seizure of

evidence in plain view.   Subject to the limitations expressed

both by the Appellate Division and below, the answer to that

question is "yes."

     More than thirty years ago, the Supreme Court of the United

States rejected a broad "murder scene" exception to the warrant

requirement, Mincey v. Arizona, 
437 U.S. 385, 392-95, 
98 S. Ct. 2408, 2413-15, 
57 L. Ed. 2d 290, 299-302 (1978), an exception

also repudiated in New Jersey.    State v. Faretra, 
330 N.J.

Super. 527, 531 (App. Div.) (refusing to adopt "crime scene

exception" to warrant requirement), certif. denied, 
165 N.J. 530

(2000); State v. Damplias, 
282 N.J. Super. 471, 481 (App. Div.

1995) ("There is no `murder scene exception' to the Fourth

Amendment." (citing Mincey, supra)), certif. denied, 
154 N.J.
 607 (1998).   In the absence of such an exception, the question


                                 -2-

of whether, after responding to an emergency call and lawfully

entering a homicide scene, a later re-entry into a police-

secured location, followed by the plain view seizure of evidence

therefrom, constitutes "merely a continuation of [an] initial

emergency entry[,]" Arizona v. Mincey, 
636 P.2d 637, 649 (Ariz.

1981), cert. denied, 
455 U.S. 1003, 
102 S. Ct. 1638, 
71 L. Ed. 2d 871 (1982), remains "for the . . . courts to resolve[.]"

Mincey, supra, 
437 U.S.  at 395 n.9, 
98 S. Ct.  at 2415 n.9, 
57 L. Ed. 2d  at 302 n.9.

     When determining the propriety of a warrantless seizure,

"[t]he question is not whether the police could have done

something different, but whether their actions, when viewed as a

whole, were objectively reasonable."   State v. Bogan, 
200 N.J.
 61, 81 (2009) (citing State v. Diloreto, 
180 N.J. 264, 278

(2004)).   In that vein, the determination of whether any portion

of a search -- either the initial entry, the police presence, or

the seizure itself -- is "reasonable" under both the Federal and

State Constitutions1 implicates relevant long-standing law and

practices.   See State v. Slockbower, 
79 N.J. 1, 19 n.4 (1979)

(Schreiber, J., concurring) (noting that courts "on occasion

ha[ve] also looked to history to discern whether certain types



1
     See U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7; see
also State v. Boykins, 
50 N.J. 73, 78 (1967) ("The Fourth
Amendment forbids only such searches as are unreasonable.")


                               -3-

of government intrusion were perceived to be objectionable by

the Framers of the Fourth Amendment" (citations omitted)).

     The reasonableness of continuous police presence at the

location initially accessed under the emergency aid exception is

defined by the facts presented.   See State v. Boretsky, 
186 N.J.
 271, 280 (2006) (defining "three-part test when determining

whether the emergency aid doctrine permits a warrantless search"

as (1) "[t]he public official must have an objectively

reasonable belief, even if later found to be erroneous, that an

emergency demands immediate assistance in order to protect or

preserve life, or to prevent serious injury; [(2)] the provision

of assistance must be the prime motive for the public official's

warrantless entry; and, [(3)] any search must be limited to

those places that have a nexus to the emergency" (citing State

v. Cassidy, 
179 N.J. 150, 161 (2004)).   Those principles guide

our inquiry, and define the circumstances presented here as a

continuing emergency.2

     In the limited context of this case -- where the police

responded to a 9-1-1 call and, in an admittedly proper

2
     For that reason, we need not conclude, as the Appellate
Division has, that the "reentry into defendant's apartment by
the Prosecutor's Office investigators to seize evidence observed
in plain view by the Highland Park police officers during their
initial entry was merely another `component[] of a single,
continuous, and integrated police action' conducted under the
emergency aid exception to the warrant requirement." O'Donnell,
supra, 
408 N.J. Super. at 186-87 (quoting State v. Henry, 
133 N.J. 104, 116 (1993)).


                              -4-

invocation of the emergency aid exception to the warrant

requirement, discovered the body of a dead child -- it is

relevant that New Jersey law has long required that, in all

cases of "[v]iolent deaths, whether apparently homicidal,

suicidal or accidental" or "[d]eaths under suspicious or unusual

circumstances[,]" N.J.S.A. 52:17B-86(a) and (c), the county

medical examiner "shall fully investigate the essential facts

concerning the causes of death" and "shall take possession of

any objects or articles which, in his opinion, may be useful in

establishing the cause of death, and deliver them to the county

               N.J.S.A. 52:17B-87.3
prosecutor."

     When, as here, a dead body is discovered by police

responding to an emergency call, those statutory provisions are

material to determining the reasonableness of post-entry police

action.   It readily can be said that there is little substantive

difference between the statutory mandate that the medical

examiner collect evidence and deliver it to the county

prosecutor, and trained police investigators performing exactly

the same function and to the same effect.   No doubt, the

3
     In a similar vein, we observe that, since 1880, New Jersey
has required that police officers responding to an emergency
call must notify the county medical examiner upon discovery of
an unidentified dead body. See L. 1880, c. 59, § 7 (presently
codified at N.J.S.A. 40A:9-57 ("Where in any municipality the
police ascertain the finding or discovery of an unidentified
dead body, the chief of police or other police officer on duty
shall forthwith notify the county medical examiner of such
finding or discovery.")).


                               -5-

legislative scheme governing the acts of the medical examiner,

standing alone, is not dispositive of the question of the

reasonableness of a police search.   That said, long-established

law and procedures in respect of government's obligations in

dealing with dead bodies when the cause of death has not yet

been determined will inform whether a continuing police presence

at a death scene was reasonable.   Thus, in the absence of a

warrant, the analysis should account for the entire continuum of

police action, from entry to seizure:   whether entry into an

otherwise constitutionally protected area is permitted under an

exception to the warrant requirement; whether a continued police

presence is permissible; and whether, once there, the

warrantless seizure is permitted under a recognized

constitutional doctrine.

     In this case, where the police gained access and seized

evidence without a warrant, the propriety of the access

indisputably was established by the emergency aid exception to

the warrant requirement; the continued police presence at the

site of the dead body of a six-year-old child was authorized

until the scene could be turned over to the medical examiner

without a break in custody; and the seizure of evidence of a

crime was authorized by the plain view doctrine.   In respect of

the discrete issue presented in this appeal -- whether it was

proper for the police to remain on the premises and seize


                              -6-

evidence after discovery of the dead body abated the initial

emergency -- the conclusion is, to us, clear:   because the

corpse remained at what was obviously the death scene and the

police had the obligation to retain control of the premises

until that control could be transferred to the medical examiner,

the police had a continuing right to remain present at the

scene.   Thus, their continued presence was consonant with

constitutional principles, and the plain view seizures performed

during that period thus were constitutionally authorized.4

     CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN,
WALLACE, RIVERA-SOTO, and HOENS join in this opinion.




4
     The distinctions we draw are highlighted in stark relief by
additional, relevant facts of this case. On the day following
the initial entry, discovery of the child's dead body and
resulting seizures, the police again accessed the premises and
seized additional items. The trial court invalidated the
following day's search and seizure, a determination the State
rightly has not appealed. That ruling recognizes that, once the
medical examiner removed the body, no exception to the warrant
requirement would authorize continued police access to the
premises and, hence, that warrantless entry and seizure could
not survive constitutional scrutiny.


                               -7-

               SUPREME COURT OF NEW JERSEY

NO.   A-54                                  SEPTEMBER TERM 2009

ON CERTIFICATION TO           Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

              v.

ALICE O'DONNELL,

      Defendant-Appellant.




DECIDED            July 20, 2010
               Chief Justice Rabner                       PRESIDING
OPINION BY         Per Curiam
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


CHECKLIST                          AFFIRM
CHIEF JUSTICE
                                      X
RABNER
                                      X
JUSTICE LONG
                                      X
JUSTICE LaVECCHIA
                                      X
JUSTICE ALBIN
                                      X
JUSTICE WALLACE
                                      X
JUSTICE RIVERA-SOTO
                                      X
JUSTICE HOENS
TOTALS                                7