STATE OF NEW JERSEY v. OLINESSER VERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3322-10T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

OLINESSER VERA,

Defendant-Respondent.

__________________________________

November 7, 2011

Submitted October 13, 2011 - Decided

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-07-1288.

Edward J. DeFazio, Hudson County Prosecutor, attorney for appellant (Nicole D. DePalma, Assistant Prosecutor, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

On leave granted, the State appeals from an order suppressing evidence, including two loaded handguns and assorted ammunition, which police seized after they entered an apartment without a warrant. As the parties did not dispute the facts presented in the police report submitted to the trial court, the court did not conduct an evidentiary hearing. See R. 3:5-7(c). After reviewing those same facts in light of the applicable principles of law, we reverse, concluding that the warrantless entry was justified by exigent circumstances, and its subsequent seizure of evidence was justified by plain view and abandonment principles.

I.

According to the investigative report of West New York Police Detective Jose Arroyo, shortly before 11:00 p.m. on March 1, 2010, police received multiple calls that shots had been fired in the area of 65th Street and Park Avenue. The same general location was involved in a previous incident involving reported shots fired, ammunition casings recovered, but no arrests made. Arroyo and his partner, Detective J. Perez, responded to the area. Other units did as well. Along with Arroyo and Perez, five other officers canvassed the area including Sergeant Cocciadiferro and Officers Jesus Vargas, Munoz, Ycaza and Henriquez.

While Arroyo was on the scene near 65th Street and Park Avenue, headquarters personnel advised him that an anonymous person had reported that a fight, presumably involving the shots fired, had occurred across the street from Arroyo's location and ended when the actors ran into the yellow brick house closest to a supermarket. While headquarters personnel kept the caller on the line, Arroyo and Perez approached the described house, which was 108 65th Street. Arroyo reported that as he initially arrived on the scene, he observed a young female walk up the stairs to the same building.

Arroyo, Perez and Henriquez met the occupant of the ground floor unit of Number 108, who allowed the officers to check the rear yard accessible from his apartment. The officers found no evidence or persons connected with the shooting.

Upon returning to the front of 108 65th Street, Henriquez and Ycaza noticed four spent handgun shell casings on the sidewalk in front of the building. Ycaza was posted to guard the scene.

Arroyo and Perez then proceeded up the stairs of Number 108, as had the female whom Arroyo observed earlier. Arroyo and Perez knocked on the door of Apartment Number 2 at the top of the stairway. They encountered a male resident who, they determined, was uninvolved in the incident.

Directly across from Apartment Number 2 was Apartment Number 1. Arroyo knocked on the door, but no one responded. So, he and Perez went upstairs to the next floor, where they met the male occupants of Apartment Number 4. The detectives confirmed that those men were uninvolved in the incident.

Consequently, Arroyo and Perez directed their attention again to Apartment Number 1 and resumed knocking on the door. From both the bottom of the door and the peephole, it appeared the apartment was dark. After several minutes of unproductive knocking, the detectives returned downstairs.

While in the vestibule, Perez noticed four separately marked locking mailboxes. Each one was numbered to match one of the four apartments. Perez pointed to the mailbox marked number 1. It was completely open, a set of keys were still attached to the lock, and inside was a small yellow plastic baggy, which enclosed two smaller wrapped baggies, which in turn contained what the officers believed to be cocaine.

Arroyo and Perez then left the building to brief their sergeant about the suspected cocaine and their unsuccessful effort to speak to anyone in Apartment Number 1. Cocciadiferro reported that he had observed the lights turn off in the apartment that faced the street on the second floor. The detectives concluded that the suddenly darkened apartment was Apartment Number 1.

The officers then returned to Apartment Number 1, mindful that spent handgun shell casings had been recovered in front of the building; suspected cocaine had been seized in a mailbox assigned to the apartment; an occupant of the apartment had just turned off the lights; and the young female and the other persons who reportedly were seen entering the building after being involved in the fight were unaccounted for and presumably had entered Apartment Number 1. At that point, Arroyo and Perez were joined by Cocciadiferro, Munoz, Henriquez and Vargas. Only Ycaza remained outside.

The sergeant banged on the door while announcing the police's presence. During a pause in the knocking, Arroyo heard a loud noise from inside the apartment. It sounded like a window slamming shut. The detective also heard the sound of people scurrying about inside. At that point, the sergeant kicked open the door and the police entered.

The lights were turned on and the police found defendant, as well as two other men, Ricardo Padilla and Spencer Hernandez, a teen-aged girl, defendant's girlfriend and her infant child. The girlfriend reported that defendant arrived with Padilla and banged on the door to be let in. Defendant then ordered her to leave the bedroom, which she did. Hernandez and the teenager arrived separately thereafter.

Meanwhile, looking out the bedroom window, Henriquez noticed a white plastic bag on the snow-covered rooftop of a garage, which was accessible from the apartment. The police report does not state whether the garage belonged to one or more residents of Number 108, or whether it was part of another property. Henriquez unsuccessfully tried to retrieve the bag with a broomstick. He then went outside, climbed the fence leading to the rooftop and retrieved the bag. Although he began to search the bag while on the roof, he stopped. He resumed searching the bag after returning to the apartment. He spread its contents on the bed in the bedroom. He noticed it contained a pillowcase that matched one on the bed. Police ultimately recovered two nine-millimeter handguns with chambered bullets and assorted ammunition from the plastic bag.

In opposing defendant's suppression motion, the State had argued that the officers' entry into the apartment was justified by exigent circumstances, including the "hot pursuit" of suspects in the shooting. The State also argued that the search was justified by the community caretaking exception. The court rejected both arguments and granted defendant's motion to suppress the handguns and ammunition seized. With respect to the claim of exigent circumstances, the court held:

In the present case, although the police were informed of the building in which Defendant may have entered, there is no indication that there was an imminent potential of destruction of evidence considering guns are not of the same disposable nature as drugs. Also, there was clearly no possibility of Defendant fleeing the building when the police were right outside.

The court also rejected the argument that the entry was justified by community caretaking. The court found the evidence failed to show that the officers' entry was needed to protect the safety or welfare of the young girl who was seen entering the building.

With regards to the girl, the Defense correctly notes that the police report did not indicate any facts that someone was injured nor in need of medical aid. There were no blood trails, screams, moans, 911 calls, or any other indicia of injury to justify a reasonable belief that such female would require their assistance.

The court also held that, as a matter of law, the community caretaking exception did not apply to the warrantless search of a home, citing Ray v. Twp. of Warren, 626 F.3d 170 (3d Cir. 2010).

We granted the State's motion for leave to appeal. The State renews its argument that the search and seizure were authorized by the exigent circumstances and community caretaking exceptions to the warrant requirement.

II.

Our review is plenary, as it pertains to the court's legal conclusions drawn from undisputed facts. State v. Gandhi, 201 N.J. 161, 176 (2010) ("[A] reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial . . . court."); State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999) (no deference owed trial court's application of the law to undisputed facts on motion to suppress). Cf. State v. Elders, 192 N.J. 224, 244-45 (2007) (appellate court owes deference to trial court's fact-finding "in context of a hearing where witnesses testified" and trial court developed "feel of the case," notwithstanding availability of videotape for appellate review).

We conclude that the police's entry into the apartment was justified by the exigent circumstances exception to the warrant requirement. Under that exception, a warrantless search of a residence may be based on the existence of probable cause and exigent circumstances. See Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); State v. Cassidy, 179 N.J. 150, 160 (2004) ("[E]xigent circumstances, coupled with the existence of probable cause, will excuse a police officer's failure to have secured a written warrant prior to a search for criminal wrongdoing."); State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

"Exigent circumstances" is not susceptible to precise definition. Cassidy, supra, 179 N.J. at 160. "[C]ircumstances have been found to be exigent when they 'preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both.'" Ibid. (citation omitted). Courts must employ a "fact-sensitive and objective analysis." Ibid. Pertinent factors may include:

the degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect is armed or dangerous; and the strength or weakness of the underlying probable cause determination.

[State v. DeLuca, 168 N.J. 626, 632-33 (2001).]

Other factors include: whether police have "information indicating the possessors of the contraband are aware that the police are on their trail"; "the possibility that the suspect is armed"; "the time of entry"; and whether the "character of the premises is conducive to effective surveillance while a warrant is procured." State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990). The exigent circumstances exception does not justify a search outside the scope of the exigency. State v. Frankel, 179 N.J. 586, 599 (2004).

As noted, the State must also establish the presence of probable cause. "Probable cause exists if at the time of the police action there is 'a well grounded suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (citation omitted). Probable cause requires "nothing more than 'a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Johnson, 171 N.J. 192, 214 (2002) (citation omitted). The "totality of the circumstances" must be considered in determining whether there is probable cause. State v. Moore, 181 N.J. 40, 46 (2004). The court may consider "a police officer's 'common and specialized experience.'" Ibid. (quoting Schneider v. Simonini, 163 N.J. 336, 362 (2000)). "Although several factors considered in isolation may not be enough, cumulatively these pieces of information may 'become sufficient to demonstrate probable cause.'" Ibid. (quoting State v. Zutic, 155 N.J. 103, 113 (1998)).

Applying these principles, we conclude that exigent circumstances and probable cause existed to support the police entry into the apartment. We first address the presence of exigent circumstances.

The officers were investigating a serious crime involving the discharge of firearms in the course of a fight. Spent handgun shells were found at the entry of the building. The officers had already eliminated the three other apartments and the backyard from their investigation. They had an objective basis for suspecting that present in the remaining apartment was an armed and dangerous person connected with the reported shooting. "A deadly weapon poses a special threat to both the public and police, and its presence is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search." State v. Wilson, 362 N.J. Super. 319, 333 (App. Div. 2003). The police entered the apartment when they heard sounds reasonably consistent with the destruction or secreting of evidence, the flight of suspects, or both.

We differ with the court's conclusion that the risk of flight was eliminated by the presence of one officer posted outside. The officers who entered the apartment had an objective basis to fear the flight of a suspect. It is unclear from the record whether a fleeing suspect would have been aware of Ycaza's presence. Moreover, it would have been reasonable to suspect that a person who apparently was armed would be prepared to evade or confront a single officer in an effort to flee.

We also reject the court's view that evidence was not at risk. First, the officers could reasonably suspect the presence of drugs, which are easily destroyed, given the discovery of a small quantity of suspected cocaine in the assigned mail box. Moreover, while a firearm is not as susceptible to destruction as small quantities of drugs, it can be hidden or discarded, in either case presenting enhanced safety risks. Id. at 333 (discussing the risk of a "hidden or discarded" weapon). The officers also had a basis to be concerned about the welfare of the young woman who, they suspected, was in the apartment.

The sounds of a window slamming shut, and shuffling about inside presented an immediate and urgent change in the stalemate that existed while the officers knocked on the door, and were met with silence. We need not address whether the police would have had time to seek a warrant if the stalemate had continued, notwithstanding the late hour. The status quo drastically changed once the officers heard the noises from inside the apartment. They could wait no longer.

We also conclude that the police had probable cause to believe that a crime was in progress, or that evidence of a previous crime could be found in the apartment. The police had received multiple calls of shots fired in the area. The police report does not indicate whether the callers were anonymous, or identified concerned citizens, or whether they used the 9-1-1 system. We recognize that generally, an anonymous tip is accorded less weight than the report of an identified person; and an anonymous call through the 9-1-1 system is entitled to increased weight because the caller places his anonymity at risk because of the system's ability to trace calls. State v. Amelio, 197 N.J. 207, 212-13 (2008). On the other hand, we may presume that the callers were motivated by a concern for the public and perhaps their own safety. Id. at 213. Moreover, the multiplicity of calls, even if anonymous, reporting the same incident enhanced the reliability of the reports that a shooting had occurred. See United States v. Anderson, 339 F.3d 720, (8th Cir. 2003) (multiple, mutually-corroborating anonymous tips were entitled to greater weight than a single anonymous tip).

The police also reasonably relied on the single caller's report that persons involved in the shooting had entered 108 65th Street. The caller's report of a shooting was corroborated by the other callers. The caller's willingness to stay on the line with headquarters staff as police on the scene followed up on his information enhanced the caller's reliability. Cf. Wildoner v. Borough of Ramsey, 162 N.J. 375, 391 (2000) (factor in finding police reasonably relied on concerned citizen's report of domestic violence was the citizen's willingness to wait at the scene and confirm her report). Finally, the caller's report that persons involved in the shooting had entered Number 108 was corroborated by the discovery of spent shell casings in front of the house.

A finding of probable cause was also supported by the fact that this was the second incident of shots fired in the same area. The previous incident was verified, as police recovered 9 mm ammunition casings. The area could therefore fairly be characterized as a high crime area. See Johnson, supra, 171 N.J. at 217 ("The high crime character of an area, as part of the totality of the circumstances, also may be used in determining probable cause."). Moreover, the persons involved in the first incident were still at large, which heightened police suspicions.

As for probable cause to believe evidence of a crime or persons involved in a crime could be found in Apartment Number 1, neither the young woman, nor the others reportedly seen entering the building were found in the backyard or the three apartments other than Apartment Number 1. By a process of elimination, the officers had more than a hunch that the young woman and the others would be found in Apartment Number 1. Also, the officers had reason to connect Apartment Number 1 with controlled dangerous substances, after discovering suspected cocaine in the opened assigned mailbox.

The observation that the lights in the apartment were turned off reasonably persuaded the officers that (1) the apartment was occupied; and (2) the occupants may have sought to escape detection. We recognize that it generally might be reasonable to expect a resident to turn off the lights in preparation for sleep at around 11:00 p.m. However, "[t]he fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions . . . . " State v. Citarella, 154 N.J. 272, 279-80 (1998) (citation omitted). Here, the officers were justified in suspecting that the occupants were awake, under the circumstances that included the recent firing of shots in the area, the arrival of multiple persons to the apartment, and ultimately, the noise heard from inside the apartment. Finally, the sudden noises heard, consistent with an effort to conceal or destroy evidence or to flee, supported the officers' conclusion that probable cause existed. See Johnson, 171 N.J. at 217 (effort to conceal evidence is a factor to be considered in determining existence of probable cause).

Therefore, we conclude that under the totality of circumstances there was probable cause to believe that evidence of a crime, or persons involved in committing a crime, would be found in Apartment Number 1. Based on that probable cause and the exigent circumstances, the police were authorized to enter the apartment without a warrant.

Once Henriquez spotted the plastic bag on the roof, he was permitted to seize and search it under plain view and abandonment principles. We apply a three-pronged test to determine whether evidence may be seized without a warrant because it is in plain view. Johnson, supra, 171 N.J. at 206 07. First,"[t]he plain viewdoctrine requires the police officer to lawfully be in the viewing area." Id. at 206. Second, "[t]he officer must discover the evidence 'inadvertently,' 'meaning that he did not know in advance where evidence was located nor intend beforehand to seize it.'" Ibid. (citations omitted). Third, it must be "'immediately apparent' to the officer that items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." Id. at 207.

Applying that test, we conclude that Henriquez was permitted to seize the bag. Given our determination that exigent circumstances and probable cause justified the warrantless entry into the apartment, Henriquez was lawfully in the viewing area. He did not know in advance what evidence he would confront. Moreover, the plastic bag was found atop a snow-covered roof, providing the officer with an objective basis to suspect that the bag had recently been tossed onto the roof from the apartment window. Given the events preceding the police entry, it was reasonable to suspect that the bag contained contraband that the apartment occupants wished to disclaim.

Police entry onto the roof of the garage was justified. Even assuming the garage was used by other residents of Number 108, it was part of the common area of the multi-family building over which there was a reduced expectation of privacy. The roof was visible from the window of Apartment Number 1 and presumably, from the apartment above it. See Johnson, supra, 171 N.J. at 209-10 (officer authorized to search for suspected drugs in hole beside post on porch of multiple-family row house accessible to other residents and visitors); State v. Ford, 278 N.J. Super. 351 (App. Div. 1995) (search authorized of hole in the wall of building accessible by someone standing on ground level). See also United States v. Arboleda, 633 F.2d 985, 991-92 (2d Cir. 1980) (police authorized to seize object containing cocaine that defendant threw outside his apartment window onto an adjoining ledge accessible to other tenants).

The police were also authorized to seize and search the bag without a warrant, as it was abandoned. Whoever owned it had disclaimed any privacy interest in its contents. "For purposes of search-and-seizure analysis, a defendant abandons property 'when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search.'" State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006) (quoting State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982)).

The facts presented here are similar to those presented in cases in which defendants discard property upon the lawful approach of police, or during flight from officers who are acting lawfully. Under such circumstances, the owner disclaims any privacy interest in the property. See Carroll, supra, 386 N.J. Super. at 160-61 (defendant abandons stolen Buick and plastic bag inside after fleeing from an accident scene); State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (defendant who dropped item as police approached abandons it); State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.) (defendant abandoned container of cocaine that he threw to the curb as police approached), certif. denied, 149 N.J. 410 (1997); Farinich, supra, 179 N.J. Super. at 7 (defendant abandoned suitcase at airport while police pursued him). Here, although the officer did not see anyone discard the garbage bag, it was reasonable for the officer to surmise that the bag was abandoned upon the approach of police, particularly since the officers heard a window slam shut before entering.

In sum, the police were authorized to enter the apartment without a warrant based upon the exigent circumstances and probable cause, and thereafter to seize and search the plastic bag on the garage roof, based upon plain view and abandonment principles. In view of our determination, we need not address the State's alternative argument that entry into the apartment was authorized by the community caretaking exception to the warrant requirement. See State v. Kaltner, 420 N.J. Super. 524, 539 (App. Div.) (finding that community caretaking exception may apply to warrantless search of residences "on a case-by-case, fact-sensitive basis"), leave to appeal granted, ___ N.J. ___ (2011).

Reversed.