STATE OF NEW JERSEY v. BRUCE R. RICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5927-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

BRUCE R. RICE,

Defendant-Appellant.

__________________________________

November 5, 2010

Submitted: September 29, 2010 - Decided:

Before Judges Cuff and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-02-0544.

Yvonne Smith Segars, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

LuisA. Valentin, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress, defendant Bruce R. Rice entered a plea to second degree aggravated assault (serious bodily injury), contrary to N.J.S.A. 2C:12-1b(1). He is serving a five-year term of imprisonment subject to a No Early Release Act (NERA)1 85% parole ineligibility term.

On November 11, 2007, at approximately 10:30 p.m., Asbury Park police officers responded to 129 Elizabeth Avenue in Asbury Park to a report of shots fired. At the time, the police were three houses away investigating an unoccupied but running Dodge truck in front of 119 Elizabeth Avenue.

When the officers arrived at 129 Elizabeth Avenue, they spoke to Terry Ann Ellis. She lived in one of the apartments in the building. She reported she had heard a shot fired and her friend, Jazar Lewis, ran into her apartment. Lewis told Ellis he had just been shot, and "[he couldn't] believe he is trying to shoot me." In response to a question posed by Ellis, Lewis told her that defendant was the person who shot at him. Lewis left Ellis's apartment before police arrived. He returned while police were still on the premises but was uncooperative. Ellis informed police that defendant lived at 119 Elizabeth Avenue, and she had seen him in the Dodge truck earlier that evening.

A visual inspection of 129 Elizabeth Avenue revealed what appeared to be a bullet hole in the screen entrance door. Police found a bullet on the kitchen floor near the refrigerator that had initially hit a kitchen cabinet. Police estimated that the bullet appeared to be "a small caliber projectile," approximately .32 caliber or less.

In the early morning hours of November 12, police received another report of a shot fired at 119 Elizabeth Avenue, the home of defendant. Sergeant White of the Asbury Park Police received information that Lewis, the alleged victim of the November 11 shooting, shot at defendant's residence with a .44 or .45 caliber handgun. Having received information from neighborhood sources that defendant kept a rifle under the back porch of his residence, Sgt. White entered the yard of 119 Elizabeth Avenue, looked under the porch, but did not find a weapon.

Sergeant White described 119 Elizabeth Avenue as a two-story, two-family residence. The house has a common front door and porch. In addition, there is a driveway on the north side of the residence. Along the north side of the residence a flight of stairs allows access to the second floor apartment. There is also a back porch and a back door accessible from the driveway. A fence on the property does not block access to the driveway, the stairs to the second floor, or the backyard from the driveway.

The following morning, Sgt. White identified a spot from which he could observe the backyard of defendant's house. From the parking lot of a nearby church, White observed defendant enter his backyard, bend down next to the porch, slide a brown rifle under the porch, and walk to the front of the house. Within a matter of minutes, White and two officers arrived at defendant's house. Two officers remained with defendant, and White walked into the backyard and looked under the porch. He observed the butt of a rifle protruding from underneath the porch. Another officer, Sgt. Barnes, remained by the back porch, and White proceeded to the front of the house and arrested defendant.

Defendant filed a motion to suppress the rifle seized by police. He argued that police obtained evidence through a series of warrantless searches in the absence of any exigent circumstances to excuse the obligation to obtain a search warrant. The State argued that defendant had no expectation of privacy for the area under the porch of a two-family house, and exigent circumstances existed due to the reports of at least two recent shootings at defendant's residence and at a neighboring residence. The State argued that given the recent exchange of gunfire, the police should not be required to station an officer to guard the weapon while police obtain a search warrant.

The motion judge agreed. He found that police learned from a variety of sources that defendant and Lewis were exchanging gunfire in the course of an ongoing argument about a woman. The judge found that defendant had no expectation of privacy in his backyard because he lived in a multi-family dwelling, carried the weapon without any attempt to conceal it, placed it under the porch that was visible from other properties, and was accessible to others who entered the yard.

The motion judge also held that a warrant was not required because the rifle was plainly visible to others. He found that White was lawfully in the parking lot of the nearby church, from which he had a largely unobstructed view of the backyard and porch. He also found that Sgt. White did not know in advance that he would find a rifle. The judge noted that White did not find a rifle under the porch when he entered the property and looked under the porch on another occasion. The judge found that White observed the butt of a rifle in plain view as he walked down the driveway and approached the back porch. Finally, the judge found that Sgt. White immediately appreciated that the rifle was the weapon used in recent episodes of gunfire in the neighborhood; therefore, exigent circumstances also existed because defendant had partially concealed a weapon under the porch of a multi-family house in a yard accessible to others.

On appeal, defendant raises the following argument:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE FOUND THROUGH A SERIES OF WARRANTLESS SEARCHES WHEN THERE WERE NO EXIGENT CIRCUMSTANCES TO EXCUSE THE POLICE'S FAILURE TO OBTAIN A WARRANT.

The findings of fact and credibility determinations of the trial judge are entitled to deference and the findings of fact must be accepted by this court as long as they are supported by substantial credible evidence in the record. State v. Yohnnson, ___ N.J. ___, ___ (2010) (slip op. at 27); State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). Here, the findings of fact are supported by the evidence in this record. We owe no deference to the legal rulings of the trial judge, State v. Brown, 118 N.J. 595, 604 (1990); State v. Jefferson, 413 N.J. Super. 344, 352 (App. Div. 2010); however, in this case we discern no error.

Defendant argues that Sgt. White was not lawfully in the place from which he observed defendant enter his backyard and slide the rifle under the back porch. He also argues that White had no right to enter the backyard and look under the back porch without a warrant. This case, as so many others, requires a consideration of the totality of the circumstances in the application of the relevant legal principles.

The Fourth Amendment of the United States Constitution and Art. I, par. 7 of the New Jersey Constitution bestow a right on persons to be secure in their houses from unreasonable searches and seizures. See State v. Cassidy, 179 N.J. 150, 159-60 (2004) ("The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution require that police officers obtain a warrant 'before searching a person's property, unless the search falls within one of the recognized exceptions to the warrant requirement.'" (citation omitted)). This right extends to the curtilage of a home, which is "land adjacent to a home and may include walkways, driveways, and porches." State v. Domicz, 188 N.J. 285, 302 (2006). The Court has identified several factors to determine whether the land adjacent to a house, i.e. the curtilage, enjoys constitutional protection. State v. Johnson, 171 N.J. 192, 208-09 (2002). These factors include

the proximity of the area . . . to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

[Ibid. (quoting United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35 (1987)).]

In addition, a normal route of access to the house, such as a front door or in some circumstances a back door, is only considered a semi-private area. Id. at 209 (citing 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 2.3(f) (3d ed. 1996)); State v. Lane, 393 N.J. Super. 132, 146 (App. Div. 2007). Observations made from areas of usual ingress and egress are permissible without a warrant. Domicz, supra, 188 N.J. at 302; Johnson, supra, 171 N.J. at 209.

Here, Sgt. White selected the parking lot of a nearby church. From this vantage point, he could view the backyard of defendant's house through a chain link fence. The very nature of the fence suggests a diminished expectation of privacy because the fence only blocks access of persons, debris and animals into the yard, but does not obscure the view of the backyard. Moreover, a church parking lot is designed to provide access to the church building for congregants and their guests. It is, by its nature, a public gathering place. Cf. State v. DiRienzo, 53 N.J. 360, 385 (1969) (noting that the seizure of evidence lying in plain view on the back seat of a car parked in a parking lot was proper).

In addition, when he entered the backyard, Sgt. White used the driveway that served as access to the second floor stairway, the back porch, and the back door of the residence. Having used the normal route of access to the property, observations made from a vantage point used by defendant or others to gain access to the premises are not protected by the federal and state constitutional right to be free from unreasonable searches and seizures. Johnson, supra, 171 N.J. at 209; Lane, 393 N.J. Super. at 146.

In Lane, while recognizing these principles, we ordered a remand to further develop the factual record to allow a determination whether the circumstances warranted a protective sweep of the curtilage of the house, whether the police were lawfully in the area of the sweep, and "whether the officer had a reasonable articulable suspicion that the area to be swept posed a danger." 393 N.J. Super. at 154-55.

Here, White accessed the rear porch through the unfenced driveway providing access not only to the stairs to the second floor apartment but also the back door. In that place he observed the butt of a rifle in plain view. He also knew that defendant and another resident of the neighborhood had exchanged shots at each other on each of the preceding two days. These circumstances warranted seizure of the item at that time rather than later.

Having found that the back porch, although part of the curtilage of defendant's house, had a diminished expectation of privacy, and that the butt of the rifle was plainly visible to anyone who approached the back porch, we need not address the other bases advanced by defendant to suppress the rifle seized by the police and by the State to uphold the entry of the police into the backyard. The order denying defendant's motion to suppress is affirmed.

Affirmed.

1 N.J.S.A. 2C:43-7.2.