STATE OF NEW JERSEY v. MAURICE NEVIUS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1037-04T4F1037-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE NEVIUS,

Defendant-Appellant.

_______________________________

 

Submitted January 31, 2006 - Decided February 17, 2006

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of

of New Jersey, Law Division, Union

County, Docket No. 03-05-0396.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Timothy P.

Reilly, Designated Counsel, of counsel

and on the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Daniel I.

Bornstein, Deputy Attorney General,

of counsel and on the brief).

PER CURIAM

Defendant Maurice Nevius argues on appeal that his conviction for possession and possession with intent to distribute heroin should be reversed because Judge Barisonek "erred in denying defendant's motion to suppress illegally obtained evidence."

The police obtained a "no knock" search warrant for 524 West Second Street, Apt. 3D, a multi-unit facility in the Elmwood Housing Projects, and for the persons of defendant and Linda A. Nevius. The trial prosecutor conceded that the "no knock" provision in the warrant was invalid.

After observing a "pattern" of behavior where defendant kept meeting people on the street, while "going in and out of the building," the police decided to execute the warrant. They entered the premises through the back door and as they climbed the stairs in the common area of the first floor, they encountered a woman who proceeded to make a loud "whoop whoop" siren sound. The testifying officer had heard the "whoop whoop" sound before and knew that it was used to alert others that police were present. The officers increased their pace, continued past the woman, jogged up to the third floor, and entered Apt. 3D without knocking. As the police entered, defendant ran into a bedroom and dropped a small bundle of heroin.

A no-knock entry without a specific warrant is justified when the police are "'presented with exigent circumstances.'" State v. Ventura, 353 N.J. Super. 251, 259 (App. Div. 2002) (quoting Johnson, supra, 168 N.J. at 624). The police may enter unannounced if the exigent circumstances give rise to "a reasonable suspicion that knocking and announcing their presence . . . would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S. Ct. 1416, 1421-22, 137 L. Ed. 2d 615, 624 (1997).

In this case, defendant argues that there was no way the alert could have reached defendant in his apartment two floors away. The testifying officer described the alert, however, as "a siren like noise real loud. . . . something like a whoop whoop." The officers entering through the basement heard the noise before they got to the first floor. The court asked the testifying officer to make a sound that "matched what volume you heard at that time." The officer, though embarrassed, did so as best he could, and the judge commented, "I wouldn't say it's a deafening sound. It's loud."

In its decision, the court noted that "[t]he issue is not whether or not the State can prove that this defendant heard that siren noise. That's impossible to prove from State's perspective. What the State needs to show is that that noise is made to a purpose of alerting individuals, and that this defendant could have been alerted." The court further considered that there was no one else in the common areas when the unidentified woman sounded the alert. Consequently, the court found it was "reasonable under those circumstances for this officer to believe that the purpose of the noise is to alert individuals in the building, including this defendant, as to police presence."

We agree with the trial judge. It is important to remember that the officers had obtained a valid search warrant, which was based upon probable cause that drug dealing was occurring in the apartment to be searched. Indeed, controlled buys had been made from the apartment. While executing the valid warrant, the officers were confronted with an unidentified person sounding an alert. It is not necessary to establish that the defendant actually heard the alert, all that is necessary is that the circumstance caused the officers to have a "reasonable suspicion," that the "whoop whoop" could have alerted defendant, thus allowing opportunity to destroy the evidence. See Ventura, supra, 353 N.J. Super. at 258-59. We agree with Judge Barisonek that this exigent circumstance justified the officers entering the apartment without knocking and announcing their presence. Accordingly, the judge correctly refused to suppress the evidence seized.

 
Affirmed.

Although the State on appeal argues that the no-knock provision was indeed valid, we assume for purposes of this opinion that the provision was invalid. See State v. Jones, 179 N.J. 377, 397 (2004); State v. Johnson, 168 N.J. 608, 619 (2001).

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A-1037-04T4F

February 17, 2006