STATE OF NEW JERSEY v. ALFONSO J. BURKE

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3028-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALFONSO J. BURKE,

Defendant-Appellant.

________________________________________________________________

November 4, 2010

 

Submitted October 12, 2010 - Decided

 

Before Judges Carchman and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-07-1565.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress, defendant Alfonso J. Burke entered a plea of guilty to one count of second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1a. The trial judge sentenced defendant to a seven-year term of imprisonment to run concurrent to a sentence on unrelated offenses, together with statutory assessments and penalties. Defendant now appeals the denial of his motion to suppress narcotics and weapons evidence seized during the execution of a warrant for his arrest. We affirm.

Although some minor factual disputes emerged from the testimony at the suppression hearing, the basic underlying facts as to the search in question are not in significant dispute.

On January 18, 2007, Asbury Park Police Officer Daniel Newman, accompanied by other officers, executed an arrest warrant at defendant's purported residence, the home of defendant's cousin, co-defendant Rashaan Davenport in Asbury Park. The warrant was issued for various offenses that included robbery, carjacking and aggravated assault, all of which involved allegations of the use of a firearm. Specifically, the allegations were:

that [defendant] did commit aggravated assault by knowingly, under circumstances manifesting extreme indifference to the value of human life, point a firearm at or in the direction of David Reg, specifically by pointing a black semiautomatic handgun at the victim's throat; did commit robbery by being armed with a deadly weapon in the course of committing a theft, specifically by pointing a black semiautomatic handgun at the victim and taking the victim's personal belongings, which include cash and a cellular phone; in the jurisdiction of the court did commit the offense of theft by unlawfully taking or exercising control over movable property, to wit, a 2005 gold Chevy Cobalt, four-door motor vehicle belonging to Elizabeth Quimby, with the intent to deprive the owner thereof, specifically by carjacking the vehicle and fleeing with the vehicle.

 

Defendant was considered armed and dangerous.

The officers approached the house, and Lieutenant David DeSane knocked on the front door and announced, "police." Davenport responded and opened the front door. Through a window, Officer Newman observed defendant, whom he recognized from a photograph, going upstairs, and he advised Lieutenant DeSane of this observation. Officer Newman asked Davenport whether anyone else was inside, and Davenport replied that his cousin was upstairs. Knowing defendant was subject to a warrant, armed and dangerous, the officer entered the house, announced, "police" and headed upstairs to arrest defendant.

The house contained three rooms on the second floor, one to the right at the top of the stairs, one to the left, and one ahead at the end of a hall. Officer Newman cleared each room to locate defendant and assure the safety of himself and the other officers. In the first room to the right at the top of the stairs, the officer observed, in plain view, heroin and marijuana on a bedside table, a box marked "American Eagle" pistol cartridges on the floor beside the table, and crack cocaine and a scale next to the door. The officer found defendant in the second bedroom and secured him before clearing the last bedroom.

Officer Newman advised Lieutenant DeSane of the contraband evidence he had discovered upstairs. The lieutenant then contacted Detective Scott Samis of the Monmouth County Prosecutor's Office for assistance with the investigation. Detective Samis proceeded to the house and then to a satellite office of the Prosecutor's Office to speak with Davenport; both Davenport and defendant at that point had been arrested and taken to the Asbury Park Police Department.

At the office, Detective Samis spoke with Davenport, who signed a waiver of his Miranda rights and a consent to search form for his bedroom at the house, specifically "[the Asbury Park address], up the stairs to the left front room to the left." Davenport told the detective that co-defendants Woods and Harriot also resided at the house.

Detective Samis returned to the house with Davenport's consent to search. He and Lieutenant DeSane went to the second floor. Through the opened doorway to the room, toward the right at the top of the stairs, which was determined to be Harriot's, Detective Samis observed the various contraband items that Officer Newman had first discovered, all still in plain view and consistent with Lieutenant DeSane and Office Newman's information as to its location. The police confiscated that evidence but otherwise did not search the room.

The police searched Davenport's bedroom, subject to the consent, where they found various other evidence, including: additional drugs, paraphernalia, packaging material, three ledger books marked "Gang Blood Information," a driver's license belonging to the victim of a carjacking with which defendant had been charged, a knapsack with a wallet containing defendant's driver's license, a .9mm bullet, and a .9 mm Hi-Point model C handgun with a magazine containing one hollow-point bullet and six additional full metal jacket bullets.

Defendant moved to suppress only the evidence found in Harriot's room. The court denied the motion. Although defendant did not challenge the evidence recovered from Davenport's room, the motion judge ruled that the search of Davenport's room was proper given Davenport's valid consent. As to the evidence recovered from Harriot's room, the judge concluded that exigent circumstances - namely, the arrest warrant and the fact that defendant was seen inside the house and believed to be armed and dangerous - justified the police entry into, and protective sweep of, the house to execute the warrant and arrest defendant. He then concluded that the narcotics and weapons evidence observed in plain view by Officer Newman in Harriot's room during the protective sweep was admissible. This appeal followed.

On appeal, defendant raises the following issue:

POINT I

 

THE SECOND ENTRY INTO DAVENPORT'S HOME ALLOWED THE POLICE, BY VIRTUE OF DAVENPORT'S CONSENT, TO SEARCH ONLY THE SECOND BEDROOM. THERE IS NO WARRANT EXCEPTION FOR THE SEARCH AND SEIZURE OF CONTRABAND FROM THE FIRST BEDROOM IN VIOLATION OF DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES. (U.S. CONST., AMEND IV, XIV; N.J. CONST. (1947), ART I, PAR. 7)

 

We have carefully reviewed the briefs of the State and defendant as well as the record and we affirm substantially for the reasons set forth in Judge Neafsey's thorough and thoughtful oral opinion of January 11, 2008.

We do note that defendant's position on appeal shifts the focus of the argument from the initial entry and sweep of the various rooms at the house and concentrates on the bona fides of the reentry into the premises and Detective Samis' retrieval of the contraband from Harriot's room. In this regard, we consider additional comments appropriate.

Subsequent to the perfection of this appeal, the Supreme Court decided State v. O'Donnell, 208 N.J. 160 (2010), affirming our decision previously reported in 408 N.J. Super. 177 (App. Div. 2009). In O'Donnell, we concluded that "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." Id. at 186-87 (quoting State v. Henry, 133 N.J. 104, 113 (1993)). The Court did not rely on our finding as it concluded that the "circumstances presented here [were] a continuing emergency." O'Donnell, supra, 208 N.J. at 163.

The Court established a three-prong analysis for considering whether a warrantless seizure of evidence is permissible under the circumstances described here. The Court said:

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.

 

[Id. at 164]

 

Applying these principles here, we find that the seizure of contraband from Harriot's room was appropriate. The evidence was initially observed in plain view as part of the "sweep," which was "clearly" of areas where an armed and dangerous suspect resided. The police had a right at that point to seize the evidence; however, the exigency of determining defendant's whereabouts and executing the arrest warrant made seizure a secondary consideration.

Apparently, DeSane remained at the house when the police returned to the station to secure the consent to search Davenport's room. The house was still an active crime scene as contraband had been observed in Harriot's room and the police sought to search Davenport's room. The "plain view" exception to the warrant requirement was likewise extant and provided the "recognized constitutional doctrine" to support the seizure in Harriot's room.

We recognize that O'Donnell requires a consideration of each element of the circumstances resulting in the seizure, yet we conclude that the parsing of the events here does not invalidate the seizure. We discern little difference if after defendant's arrest, Newman or DeSane both had immediately returned to Harriot's room to confiscate the previously observed contraband. Allowing the apparently short period of time necessary to secure Davenport's consent and then delegating to Samis the obligation to secure the contraband from Harriot's room is consistent with the "single, continuous and integrated police action" that the Court recognized in Henry and we acknowledged in O'Donnell. See also State v. Finesmith, 406 N.J. Super. 510, 519-21 (App. Div. 2009).

Finally, we reject defendant's reliance on State v. Younger, 305 N.J. Super. 250 (App. Div. 1997). In Younger, we held that the search of a change purse exceeded the consent to search for a weapon. It does not apply here.

Affirmed.