STATE OF NEW JERSEY v. ANDRE FRANCIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2636-05T42636-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE FRANCIS,

Defendant-Appellant.

___________________________________________

 

Submitted October 10, 2007 - Decided

Before Judges Coburn and Chambers.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Ind. No. 04-07-2643.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jeffrey R. Jablonski, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lora B. Glick, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction by a jury for third- degree possession of a controlled dangerous substance (CDS) in violation of N.J.S.A. 2C:35-10(a)(1) (count four), third-degree possession of CDS with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) (count five), second-degree possession of CDS within 500 feet of public housing with intent to distribute in violation of N.J.S.A. 2C:35-7.1 (count seven), and second- degree eluding police in violation of N.J.S.A. 2C:29-2(b) (count eight). The court granted the State's motion for an extended sentence under N.J.S.A. 2C:44-3(a). On the eluding charge, defendant was sentenced to fifteen years, with five years of parole ineligibility. Counts four and five were merged into count seven, and for that count, he was given a concurrent sentence of ten years with a three year period of parole ineligibility. He was also assessed the requisite fees and monetary penalties. The jury acquitted defendant of fourth- degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(5)(a) (count one), fourth-degree possession of a weapon in violation of N.J.S.A. 2C:39-5(d) (count two), and third-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(d) (count three).

The issues raised by defendant in this appeal include the question of whether the "hot pursuit" doctrine permitted the warrantless entry into his residence and seizure of evidence found there. Since the record presents sufficient exigent circumstances to allow the warrantless entry into the residence and seizure of the evidence found there in plain view, defendant's motion to suppress was properly denied. We affirm the conviction, but remand for resentencing in accordance with State v. Pierce, 188 N.J. 155, 168-69 (2006).

On March 29, 2004, several officers from the Newark police department observed a transaction that they believed to be an illegal drug transaction in which a woman handed money to the driver of a red Pontiac Grand Prix and received an object in return. The officers, who were in an unmarked vehicle, pulled up by the car; one officer exited the vehicle and approached the driver, later determined to be defendant. The officer identified himself as a police officer. Upon learning this, defendant rammed his car into the police vehicle and sped away at a high rate of speed, driving erratically, and going through several red traffic lights.

The police officers followed, but eventually lost sight of the red vehicle, although they were able to obtain its license plate number. This information was immediately relayed to the police dispatcher who then advised the officers that the vehicle was not reported stolen or missing and provided them with the name of the owner and her address. The police officers immediately drove to that address, and circled the housing complex several times. They then observed the vehicle they had been chasing go into the garage adjacent to the unit at the address they had been given. They did not see the driver of the vehicle nor, due to the configuration of the dwelling and the garage, could they see the driver exit the car and enter the apartment.

The police then knocked on the apartment door and announced "Newark Police, open the door." They heard a male voice reply "What the fuck you cops want? I am not going to fucking open my door." The officers demanded that the door be opened or they would kick it open. The person replied, "kick the fucking door in, because I'm not going to open it." The officers forced open the door. When conducting a protective sweep of the apartment, they saw in plain view an open safe with over $4,000 in loose currency, and on top of a bedroom dresser, they found a plastic bag with several vials of cocaine and a number of empty vials of the type used to package cocaine for street sale. Defendant had fled the apartment, but surrendered about a week later. The apartment and car belonged to defendant's girlfriend, and he lived in the apartment with her.

In this appeal, defendant contends that the following errors were made below:

POINT I

The trial court erred in denying the defendant's motion to suppress.

A. There was no "hot pursuit" of the defendant, nor did the officers confront any exigency to require the immediate entry to the apartment.

B. Since the intrusion into the apartment was unlawful, the "plain view" doctrine to justify the discovery of the illegal substances does not apply.

POINT II

The defendant's due process right to a fair trial was violated since he was not informed of the consequences of a stipulation to

an integral element of a majority of the offenses for which he was convicted. (Not raised below)

POINT III

Since trial court did not instruct the jury about the lesser-included offense of resisting arrest, it deprived the defendant of a fair trial and committed reversible error. (Not raised below)

POINT IV

The trial court abused its discretion by granting the State's extended-term motion and by sentencing Mr. Francis to an excessive and unjustified term without a valid consideration of the aggravating sentencing factors.

I

The motion to suppress was submitted to the trial court based on the briefs, police report, and oral argument. No testimony was taken. This procedure is appropriate where the briefs reveal no material issue of fact to be tried. R. 3:5-7(c); State v. Green, 346 N.J. Super. 87, 90-91 (App. Div. 2001). The trial judge found that the "hot pursuit" doctrine allowed the officers to enter the apartment, and that, since the officers were there lawfully, the "plain view" doctrine allowed them to seize the evidence. As a result, the motion to suppress was denied. Defendant appeals this decision.

The Fourth Amendment of the United States Constitution protects people from unreasonable searches and seizures by the government. U.S. Const. amend. IV. The right to retreat to one's home and be free of unreasonable government intrusion there stands at the core of the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 683, 5 L. Ed. 2d 734, 739 (1961). A warrantless search and seizure in a home is presumptively unreasonable. Brigham City v. Stuart, ___ U.S. ___, 126 S. Ct. 1943, 1947, 164 L. Ed. 2d 650, 657 (2006) (citing Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 650-51 (1980)). However, since the "touchstone of the Fourth Amendment is reasonableness," the exigencies of the situation may be so compelling that a warrantless search and seizure is objectively reasonable and permissible. Ibid. Unless exigent circumstances are present, law enforcement officers may not enter a home to effect the seizure of persons or property without a warrant. Payton v. New York, supra, 445 U.S. at 590, 100 S. Ct. at 1382, 63 L. Ed. 2d at 653. Warrantless arrests or searches are "subjected to particularly careful scrutiny," and, indeed, are justified "only in extraordinary circumstances". State v. Bolte, 115 N.J. 579, 583-84 (1989). For the warrantless arrest or search to be valid, there must be shown both probable cause for the arrest or search and exigent circumstances. Id. at 585-86.

In the case before this court, the requirement of probable cause was met. Once the officers witnessed the suspected narcotics transaction, they had a duty to respond to the suspicious behavior. State v. Stovall, 170 N.J. 346, 371 (2002). When they approached defendant and identified themselves, defendant intentionally rammed his vehicle into the police car and fled. At that point, the officers had probable cause to arrest him for the assault and eluding charges, crimes that occurred in their presence.

With respect to the requirement of exigent circumstances, one recognized exception to the warrant requirement due to exigent circumstances is when the police are in "hot pursuit" of a fleeing felon. United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300, 305 (1976); State v. Bolte, supra, 115 N.J. at 589. "Hot pursuit" refers to "some sort of a chase," even if a very short one, and will justify a warrantless entry into a house in order to make an otherwise valid arrest. United States v. Santana, supra, 427 U.S. at 42-43, 96 S. Ct. at 2409-10, 49 L. Ed. 2d at 305.

Generally, when there is probable cause to believe a defendant has committed a crime and eluded apprehension by the police by retreating into his home, there is authority for the police, who are in immediate or continuous (i.e., "hot") pursuit, to follow the fleeing felon, and there is a reasonable expectation that a delay in obtaining a warrant would result in the destruction of evidence.

[State v. Laboo, ___ N.J. Super. ___ (App. Div. 2007) (slip op. at 7).]

However, our Supreme Court has stated that "hot pursuit" alone will not justify a warrantless entry into a home. State v. Bolte, supra, 115 N.J. at 597. "[W]hether hot pursuit by police justifies a warrantless entry depends on the attendant circumstances." Ibid. Police officers may not pursue defendants into their homes for minor traffic violations. Welsh v. Wisconsin, 466 U.S. 740, 754, 104 S. Ct. 2091, 2100, 80 L. Ed. 2d 732, 746 (1984). "[A]n arrest for a 'minor offense' can rarely support a finding of exigent circumstances sufficient to justify a warrantless home entry." State v. Bolte, supra, 115 N.J. at 597.

Defendant argues that since the officers lost track of the car during the chase that followed, the "hot pursuit" doctrine does not apply. However, officers may pursue a suspect into a home when they can make reasonable inferences from the surrounding circumstances that the suspected criminal is inside, and exigent circumstances are present. See Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 1646, 18 L. Ed. 2d 782, 787 (1967) (police were told that an armed robber had fled into the house five minutes earlier and speed was essential for the safety of the officers and others due to the presence of weapons); State v. Josey, 290 N.J. Super. 17, 30-31 (App. Div.), certif. denied, 146 N.J. 497 (1996) (back-up officer, attempting to arrest defendant for drug transactions, did not see defendant enter his house, but heard footsteps running up the stairs); State v. Stupi, 231 N.J. Super. 284, 288 (App. Div. 1989) (when police at the scene of a robbery followed footprints in the snow to defendant's house, the court stated, in dicta, that "[p]rompt police action was necessary to apprehend the perpetrators and to prevent destruction of evidence of the crime.")

In State v. Josey, a case relied upon by the trial court below, the police had seen defendant and a co-defendant engage in drug transactions on the sidewalk in front of defendant's apartment. State v. Josey, supra, 290 N.J. Super. at 21. As the officers were starting to move in for the arrest, defendant walked into the alley toward his house, and the co-defendant threw the bags of narcotics to the ground. Id. at 23. When one officer went into the alley, he did not see defendant. Ibid. The officer then pounded on the door of defendant's residence demanding entry, and heard footsteps running up the stairs. Ibid. He broke down the door and entered the house, seizing defendant and the narcotics evidence in plain view. Ibid. This court found under those circumstances, that the officer had probable cause to arrest defendant, that the officer could reasonably infer that defendant had entered the premises, and that pursuit of defendant into the dwelling "was plainly justified in order to effect his arrest and prevent the likely destruction of evidence." Id. at 30-31. In so holding, this court noted that the officers are not required to remain passive, thereby allowing evidence to be destroyed. "The Fourth Amendment is not violated when the police justifiably pursue a fleeing criminal into his apartment after the criminal has committed a serious crime in their presence." Id. at 31.

In this case, while we do not know the exact amount of time that the officers lost sight of defendant's vehicle, we do know that it was the amount of time it took for them to receive the address from the dispatcher, drive to the address and circle around a few times. Under these circumstances, it was reasonable for the officers to infer that the same driver may have been in the car when it arrived at the owner's address. Further, if the driver had changed, the person currently in the house would in all likelihood know the identity of the person they were seeking. Under these circumstances, their decision to knock on the door to investigate was reasonable.

Once the officers knocked on the apartment door, the hostile response they received from a male, together with the fact they had just seen the vehicle they had been chasing pull into the garage for the unit, provided probable cause that the suspect was inside the apartment. At this point, the officers needed to act quickly in order to prevent the escape of the individual and to seize any evidence on his person concerning the suspected narcotics transaction. The potential destruction of narcotics evidence is also a recognized exigency that, combined with probable cause, may justify a warrantless entry into a residence. State v. Hutchins, 116 N.J. 457, 459-60 (1989).

The fact that these exigent circumstances may have been created by the officers knocking on the door does not invalidate their entry into the residence, since the steps they took were the result of "reasonable police investigative conduct intended to generate evidence of criminal activity." Id. at 460. Conduct by the police designed to locate a suspect is considered reasonable, even if it eventually leads to exigent circumstances and a warrantless entry. See State v. Laboo, supra, ___ N.J. Super. ___ (slip op. at 13) (upholding a warrantless entry into an apartment where police had tracked a stolen cell phone to that location, and knocked on the door, thereby creating exigent circumstances when the suspects, who had been armed when the robberies took place, became aware of the police presence); Hutchins, supra, 116 N.J. at 460-61 (remanding to consider whether a police-created exigency was reasonable when the police knocked to confirm a tip that drugs were being sold at that location); State v. Stanton, 265 N.J. Super. 383, 386 (App. Div. 1993) (stating that there was "nothing unreasonable in the officers' decision to knock on the [defendant's] motel room door and identify themselves" in response to a narcotics tip).

Since the officers were, thus, lawfully within the apartment, their seizure of the contraband in plain view was proper. State v. Johnson, 171 N.J. 192, 206-08 (2002). The defendant's motion to suppress the narcotics evidence was properly denied.

II

Defendant also contends that his constitutional rights were violated because the court did not advise him of the consequences of stipulating to the State's laboratory report identifying the contraband as a controlled dangerous substance. This argument was not raised below, and hence, relief will be provided only if this issue constitutes plain error "clearly capable of producing an unjust result." R. 2:10-2. No error occurred here.

Pursuant to New Jersey statutory law, an employee at the State's forensic laboratories may provide law enforcement with a certification made under oath of the test results on a suspected controlled dangerous substance. N.J.S.A. 2C:35-19(b). The State must then submit to the defense at least twenty days prior to trial the certification, reports, and a notice of intent to proffer the certification. N.J.S.A. 2C:35-19(c). Within ten days of receipt of the notice, the defense must advise the State if defendant will contest the admission into evidence of the certification. Ibid. Failure by defendant to object to the certification within this time frame constitutes a waiver of objections to its admissibility. Ibid. This procedure was followed in the present case, and defendant did not provide notice of objection to the certification. As a result, the lab report was stipulated into evidence.

This statutory procedure has been constitutionally upheld as not violating the confrontation clause. State v. Miller, 170 N.J. 417, 431-36 (2002). Defendant identifies no authority requiring that the judge advise defendant of the consequences of stipulating to the State's laboratory report under these circumstances. Without the stipulation, the report would have been admissible anyway pursuant to the statute. We find no plain error here.

III

Defendant contends that the trial court erred by not instructing the jury on resisting arrest, which he contends is a lesser included offense of the eluding charge. Since this issue also was not raised below, no relief can be provided unless we find plain error "clearly capable of producing an unjust result." R. 2:10-2. No error occurred here.

The pertinent part of the criminal code permitting conviction for lesser included offenses provides that a defendant may be convicted of a lesser included offense where the lesser included offense can be proven by "the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8(d)(1). This standard cannot be met here.

An essential element of the crime of resisting arrest is that the law enforcement officers must be in the process of arresting the defendant. N.J.S.A. 2C:29-2(a). The State maintains that in this case, when the officers approached defendant in the vehicle after the suspected drug transaction, they were conducting an investigatory stop under Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). They were not attempting to arrest defendant at that point. As a result, the record had no factual basis for a jury to find that, when defendant fled, he was resisting arrest. The crime of eluding occurs when a person operating a motor vehicle knowingly flees from an officer after having been signaled to stop. N.J.S.A. 2C:29-2(b). It does not require a circumstance where the officer is attempting to arrest the person. Accordingly, no error occurred here.

IV

Finally, the State concedes that defendant is entitled to resentencing under State v. Pierce, 188 N.J. 155, 168-69 (2006). We remand in order that defendant be sentenced after consideration of the full sentencing range for an extended term sentence.

The conviction is affirmed, but we remand for resentencing.

 

(continued)

(continued)

15

A-2636-05T4

November 13, 2007