STATE OF NEW JERSEY v. ANTHONY ALSTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0349-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY ALSTON,

Defendant-Appellant.

February 3, 2011

Submitted December 6, 2010 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-07-0636.

Yvonne Smith Segars, Public Defender, attorneyfor appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief; Kimberly Donnelly, Law Intern, on the brief).

PER CURIAM

Anthony Alston appeals the January 31, 2008 denial of his motion to suppress certain evidence found in his home. Defendant was charged in Union County Indictment No. 07-07-0636 with five counts related to the manufacture, distribution, and possession of controlled dangerous substances (CDS). After the decision was rendered, he entered a guilty plea to count four of the indictment, second-degree possession of cocaine with intent to distribute. In accordance with that plea, he was sentenced to six years imprisonment, subject to three years of parole ineligibility.

On appeal, defendant asserts as follows:

POINT I

CONTRARY TO THE TRIAL COURT'S DECISION, NEITHER THE EMERGENCY AID NOR THE INEVITABLE DISCOVERY EXCEPTIONS APPLIED TO THE WARRANTLESS SEARCH OF DEFENDANT'S BEDROOM BASED UPON PURPORTED POLICE "CONCERNS" ABOUT A BARKING DOG IN THE BEDROOM AND THE ETHEREAL POSSIBILITY THAT SOMEONE WAS IN THAT BEDROOM.

We affirm based on the motion judge's reasoned and careful analysis of the facts and circumstances, and application of the emergency aid and inevitable discovery doctrines. We add only the following brief comments.

At the motion to suppress hearing, Elizabeth Police Department Narcotics Officer Joseph McDonough testified that on March 22, 2007, at approximately 2:30 p.m., he observed defendant exchange a small item for cash in an apparent drug transaction. The police stopped the suspected buyer approximately two blocks away and as the officers approached, he dropped two bags of heroin onto the ground. The police returned to the area where they had seen the drug sale and soon located defendant. He too discarded a bundle of heroin as he was approached and was immediately arrested. Defendant indicated that his house was approximately two doors away, and that his "little girl" was home alone. As a result, several officers, including McDonough, went to the apartment. Although McDonough was not the first to arrive, he recalled seeing a six-year-old child standing in the entranceway and hearing a dog growling behind a closed and locked bedroom door. He left the premises to obtain a search warrant.

Captain Patrick Shannon, who observed the drug transaction from a different unmarked vehicle, also participated in the arrest and subsequent search. Shannon testified he obtained defendant's key, and along with other officers, walked to the apartment. He knocked on the door, and the child asked "who it was." When she opened the door, he showed her his badge. The child, who Shannon estimated was seven or eight, said her father did not want people in the apartment. As they spoke, he could hear a dog barking inside.

Ten to fifteen minutes later, the child's grandfather appeared and told the officers there was another child in the apartment, a fact Shannon said "took me back a little bit" as he had been unaware of the presence of any other children. The grandfather said this second child was about two years old. At that point, Shannon walked into the apartment and found the infant on a makeshift bed in the living room area, fast asleep. He asked the grandfather to "take charge" of the child. Shannon could hear the dog barking behind the closed door; the child described the animal as "nasty" and explained that was the reason it was shut up in the bedroom. Shannon contacted police headquarters to request the assistance of a dog warden.

Eventually, two men from the Animal Control Shelter arrived with dog sticks. Shannon observed the dog trying to force his way out of the bedroom. Its paw was poking out from underneath the door, and it was growling, barking, and scratching. When a dog warden opened the door, the dog lunged out before retreating back into the bedroom. Shannon followed the dog wardens inside1 and observed them place a noose around the dog's neck and pull it across the bed to drag it out of the house. As the wardens struggled with the animal, Shannon saw several bags containing heroin in plain view on a nightstand to his left. He also saw a blue plate and a "nice size chunk of rock cocaine on it, and some residue" on a dresser area behind the bed. The police remained in the apartment until the grandfather was able to locate diapers and baby formula for the infant. Shannon also testified the apartment was "filthy," there was "garbage all over the place, food on the floor, garbage on the floor, dirty diapers on the floor, dog feces in the apartment."

The children's maternal grandfather, Artie McDuffie, testified on defendant's behalf. McDuffie received his mail at defendant's apartment and was outside the building waiting for the mailman the day defendant was arrested. Contrary to the officers' testimony, McDuffie said the police ran past him, and that when he looked up they were at defendant's door. By the time he rushed over, they had already let themselves in with the key. When his grandchild came over to talk to the officers, he silenced her and told her to sit down. He was asked by one of the officers if he would remove the dog, but refused because "[t]he dog bit[] me." McDuffie left with his granddaughters approximately five minutes later.

The motion judge first considered the emergency aid doctrine exception to the search warrant requirement. The exception applies where there is an emergency, a search not motivated by the desire to find evidence, and a nexus between the search and the emergency. See State v. Cassidy, 179 N.J. 150, 161 (2004). The judge also noted that the presence of unattended children automatically triggers application of the doctrine in circumstances such as these. See State v. Garland, 270 N.J. Super. 31, 44-45 (App. Div.), certif. denied, 136 N.J. 296 (1994). Unattended children are recognized as an emergency situation not only because lack of adult supervision threatens their well being, but because it is itself a separate grounds for criminal prosecution. The judge reasoned that, in this case, the presence of an aggressive dog and the unexpected discovery of a toddler triggered the requirements of the emergency aid doctrine. The officers found one infant whose presence defendant did not mention, and without checking the bedroom, they had no way of ascertaining whether a third child might be in that room as well. Therefore, the presence of the officers in the apartment was lawful, and what followed, was lawful as well.

Furthermore, the inevitable discovery doctrine legitimized the warrantless seizure of the drugs. See generally State v. Sugar (Sugar II), 100 N.J. 214, 238-40 (1985). Since a search warrant was subsequently issued, the CDS found in the bedroom would have been discovered independently of the unauthorized entry into the back bedroom.

The need to call in Animal Control wardens to remove the dog from the premises constituted exigent circumstances which themselves were independent grounds for entry into the bedroom. It is undisputed that, so long as the officers' presence was legitimized by exigent circumstances, the plain view observations of the drugs made their seizure and ultimate admission into evidence proper. See State v. Josey, 290 N.J. Super. 17, 24 (App. Div. 1996). Defendant, who had just been arrested, was the only responsible adult connected with the premises. Although McDuffie said this was his daughter's apartment, it was unknown if she would return there to assume responsibility for the animal given her children were in her father's care and defendant in custody. McDuffie, the only other person known to the officers who could be charged with the responsibility, refused to take the dog because he was afraid of him, having been bitten by him in the past. Hence, removal of the seemingly vicious dog was an exigency making entry into the bedroom lawful.

1 Shannon testified that because dog wardens are unarmed, it is standard protocol for them to be accompanied by an armed officer when they are removing an apparently dangerous animal, because other measures may be necessary if the animal cannot be restrained.