STATE OF NEW JERSEY v. GREGORY A. LOFTLAND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0975-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY A. LOFTLAND, a/k/a

GREGORY ALLEN,

Defendant-Appellant.

__________________________________

November 15, 2012

Submitted October 16, 2012 - Decided

Before Judges Waugh and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-4-00610.

Stone Mandia, LLC, attorneys for appellant (Richard B. Stone and Helen B. Rosner, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gregory Loftland appeals his conviction, following a guilty plea, for first-degree possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), and second-degree possession of a controlled dangerous substance with intent to distribute while on or within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1(a). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

A.

At approximately 7:44 p.m. on November 4, 2009, Asbury Park Police Officer Stephen Love was dispatched to a building on Fifth Avenue in Asbury Park to investigate a 9-1-1 call regarding narcotic activity involving apartment 22. Love, who was in uniform, entered the building and immediately observed two males smoking what smelled like and appeared to be marijuana. Back-up officers arrived at the scene and the two men were arrested.

Love then proceeded upstairs to apartment 22. He knocked on the door and identified himself as a police officer. Someone responded, asking who it was. Love again identified himself as a police officer. Loftland opened the door wide enough to allow Love to see into the apartment, although Love was not actually inside the apartment at that time. Love smelled marijuana and observed a digital scale with a white powdery substance on it. Love also observed smoke in the apartment.

Love entered the apartment and advised Loftland and the others present that they were under arrest for possession of marijuana. While in the apartment, Love observed a burning marijuana cigarette and what he believed to be a bag of marijuana sitting on the couch. He called for back-up, did a security sweep of the apartment, and secured it.

Love transported Loftland to police headquarters. Once they arrived at police headquarters, Police Officer Lorenzo Pettway was called in to assist in the investigation. Loftland was given his Miranda1 warnings and signed a Miranda card. Several hours later, Loftland signed a consent to search form authorizing a search of his apartment.

Although the conversation leading up to and including Loftland's signing of the consent form was videotaped, the video could not be found for use as discovery following Loftland's indictment. Pettway believed that the recording was never copied onto a separate disk. He also testified that the police had just installed a new system and some of the "bugs" had not been worked out.

After the consent form was signed, Love and Pettway drove Loftland back to his apartment so he could be present during the search. In addition to the items observed by Love prior to the arrests, the police found a bag of crack cocaine above the refrigerator. Crack cocaine was also found in two pairs of sneakers in Loftland's closet.

Following the search, the officers and Loftland returned to police headquarters. While they were driving, Loftland made an unsolicited statement that the narcotics found in the apartment were his and did not belong to anyone else there. Pettway told him to "hold up" because they would do a formal statement at police headquarters.

At 2:22 a.m., Loftland signed another Miranda warning card and was questioned. Although the entire interrogation was video recorded, only fifteen minutes of it were subsequently available for discovery. When Loftland began asking legal questions, Pettway concluded that he would be "better off" speaking to an attorney and discontinued the interrogation.

B.

Loftland was indicted in April 2010. In addition to the two charges to which he pled guilty, he was charged with third-degree possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10(a)(1).

In October, Loftland filed a motion to suppress the evidence taken from his apartment. The motion judge held a hearing on April 7, 2011. Love and Pettway testified for the State. Demond Hailman, who had been in Loftland's apartment when Love knocked on the door, testified for Loftland.

The police officers' testimony has been summarized above. Hailman testified that Love never identified himself as a police officer when he knocked on the door. He asserted that Loftman only opened the door a crack, after which Love pushed the door open, entered the apartment, and started looking around. The judge reserved decision on the motion.

On May 4, 2011, the judge issued a written opinion. He determined that Love was a credible witness, despite some inconsistencies between his testimony and his report. In his opinion, the judge found that Love had twice identified himself as a police officer, that he smelled marijuana burning when Loftland first opened the door, and that Love observed the scale and white powder from outside of the apartment. The judge further found that, after Love had entered the apartment and placed the occupants under arrest, he observed bags of brown vegetative matter that he reasonably believed to be marijuana. With respect to the subsequent search, the judge found that Loftland had consented to the search, conditioned on his being there. The judge also found that Loftland had told the officers that the drugs were his while they were driving him to police headquarters the second time.

The judge concluded that Love acted appropriately in knocking on Loftland's door based upon the information derived from the 9-1-1 call and his observation of drug use in the building.2 He further concluded that, once the door was opened and Love smelled marijuana and observed the scale and white powder, he was justified in entering and making the arrest. In reaching his conclusion, the judge relied upon the exigency of the situation, observing that the contraband could have been destroyed had Love not entered, arrested the occupants, and secured the apartment. Finally, the judge found that the subsequent search and seizure of evidence was based on consent given by Loftland.

On June 6, 2011, Loftland appeared before the same judge and pled guilty to two of the three counts of the indictment. Pursuant to the plea agreement with the State, the remaining count was to be dismissed at sentencing. The judge acknowledged that Loftland reserved the right to seek appellate review of the denial of his motion to suppress.

On October 14, 2011, Loftland was sentenced to concurrent custodial sentences of ten years, with five years of parole ineligibility, as well as mandatory fines and penalties. This appeal followed. Loftland was granted bail pending appeal.

II.

Loftland raises the following issues on appeal:

POINT I: THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS

A. THE TRIAL COURT ERRED IN DETERMINING THAT THERE WAS SUFFICIENT PROBABLE CAUSE TO JUSTIFY A WARRANTLESS ENTRY AND SEARCH OF THE DEFENDANT'S RESIDENCE.

B. THE TRIAL COURT ERRED IN DETERMINING THAT SUFFICIENT EXIGENT CIRCUMSTANCES EXISTED TO JUSTIFY A WARRANTLESS ENTRY AND SEARCH OF THE DEFENDANT'S RESIDENCE.

C. THE TRIAL COURT ERRED IN DETERMINING THAT DEFENDANT CONSENTED TO THE ENTRY OF POLICE IN HIS HOME WITHOUT A WARRANT AND THAT SAID CONSENT WAS CLEAR, KNOWING, VOLUNTARY AND/OR EXPRESS.

D. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT THE WARRANTLESS SEARCH BY THE POLICE WAS LAWFUL AND PERMISSIBLE UNDER THE "PLAIN VIEW" DOCTRINE.

POINT II: THE COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO HOLD THAT THE STATE'S FAILURE TO PROVIDE MATERIAL DISCOVERY VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS WHICH IN TURN WOULD HAVE ENTITLED THE COURT TO DRAW A FACTUAL ADVERSE INFERENCE AGAINST THE STATE.

POINT III: THE STATE COURT EXCEPTION TO THE EXIGENT CIRCUMSTANCES RULE KNOWN AS THE "POLICE-CREATED EXIGENCY" DOCTRINE IS CONTROLLING AND THEREFORE THE COURT ERRED IN FAILING TO FIND THAT THE POLICE IMPERMISSIBLY CREATED THE EXIGENT CIRCUMSTANCES AND EVADED THE WARRANT REQUIREMENT AND IN ULTIMATELY [FINDING] THAT THE WARRANTLESS HOME ENTRY, SEARCH AND SEIZURE WAS LAWFUL AND JUSTIFIED.

The central issue on this appeal is whether the motion judge erred in denying Loftland's motion to suppress the evidence. The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:

[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).

 
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007) (citations omitted).]

Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

Having listened to the testimony of the two police officers and Loftland's witness, the judge credited Love's testimony concerning the crucial, but disputed, factual issues underlying the motion. He found that Love identified himself as a police officer several times, that Loftland opened the door enough for Love to see inside the apartment, and that, while still outside the apartment, Love smelled burning marijuana and observed the scale and the white powder. Based upon those facts, the judge concluded that Love had a sufficient legal basis to enter the apartment, arrest Loftland and his companions, and secure the area. He also found that Loftland consented to the subsequent search of the apartment, during which the contraband was seized. Because those findings are supported by sufficient credible evidence in the record, as required by Elders, they are binding on us for the purposes of this appeal.

Having reviewed Loftland's arguments in support of his contention that the motion judge's decision was erroneous, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). Consequently, we affirm essentially for the reasons set forth in Judge Ronald L. Reisner's thoughtful and comprehensive written opinion. Nevertheless, we add the following.

The United States Constitution and New Jersey's Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, 1. A warrant is generally required before a search and seizure is conducted. However, there are narrow exceptions to the requirement of a warrant. State v. Malik, 221 N.J. Super. 114, 118 (App. Div. 1987). These narrow exceptions include the plain view doctrine and exigent circumstances.

"'The predominate exception' to the warrant requirement is 'exigent circumstances.' Probable cause, when combined with exigent circumstances, 'will excuse a police officer's failure to have secured a written warrant prior to a search for criminal wrongdoing.'" State v. Laboo, 396 N.J. Super 97, 103 (App. Div. 2007) (quoting State v. Cassidy, 179 N.J. 150, 160 (2004)).

"Probable cause cannot be defined with scientific precision, because it is a 'practical, nontechnical conception' addressing 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" State v. Basil, 202 N.J. 570, 585 (2010) (citation omitted) (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983)). However, "it is safe to say that a police officer has probable cause to arrest a suspect when the officer possesses 'a well grounded suspicion that a crime has been or is being committed.'" Ibid. (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)).

Likewise, what constitutes exigent circumstances lacks a definitive bright-line test. "[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.'" Cassidy, supra, 179 N.J. at 160 (quoting State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974)).

[I]n assessing for such exigency, courts must conduct a fact-sensitive and objective analysis, which has been described as including "[t]he 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 deter-mination."

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

The plain view doctrine permits the warrantless seizure of evidence if three requirements are met. First, the police officer must "lawfully be in the viewing area." State v. Johnson, 171 N.J. 192, 206 (2002). 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.'" Id. at 206-07 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)). Third, it must be "'immediately apparent' to the officer that items in plain view [are] evidence of a crime, contraband, or otherwise subject to seizure." Id. at 207 (citation omitted). In this case, the motion judge determined that all three elements had been satisfied.

The motion judge first determined that the officers did not conduct a search of Loftland's apartment until after he gave his written consent. When Love entered the apartment, it was to arrest the individuals within, conduct a protective sweep, and secure the apartment. The search of the apartment and the confiscation of the cocaine took place later, after Loftland had given his consent to the search. Consequently, a finding of probable cause and exigent circumstances for a warrantless search and seizure was not required. Probable cause for the arrest was manifest.

Nevertheless, the judge concluded that Love would have been justified in conducting a search upon his initial entry into the apartment based on exigent circumstances.

Officer Love saw, in plain view, drugs in the apartment, along with the smell of burning marijuana. Since there were five individuals in the apartment, Officer Love would have been justified in entering the apartment as exigent circumstances existed. Clearly, five men in an apartment could have easily destroyed the evidence in the time it would have taken Officer Love to obtain a search warrant.

Love's testimony provided substantial credible evidence to support the judge's findings.

Loftland argues that any exigent circumstances were created by Love. Our Supreme Court has stated:

We acknowledge . . . the potential for abuse inherent in the exigent-circumstance exception to the warrant requirement and . . . the concern that "the police not be placed in a situation where they can create the exception, because well-meaning police officers may exploit such opportunities without sufficient regard for the privacy interests of the individuals involved."

[State v. Hutchins, 116 N.J. 457, 476 (1989) (quoting United States v. Aquino, 836 F.2d 1268, 1272 (10th Cir. 1988)).]

Whether the exigent circumstance "'arose as a result of reasonable police investigative conduct intended to generate evidence of criminal activity' must also be taken into account. Police-created exigent circumstances which arise from unreasonable investigative conduct cannot justify warrantless home entries." State v. De La Paz, 337 N.J. Super. 181, 196 (App. Div.) (citation omitted) (quoting State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990)) (internal quotation marks omitted), certif. denied, 168 N.J. 295 (2001). Determining whether exigent circumstances are police-created is a fact finding issue that should be resolved by the judge who hears testimony and has the opportunity to observe and evaluate the witnesses. Hutchins, supra, 116 N.J. at 476. In this case, however, we need not reach the issue of whether exigent circumstances were created by the police, because Love testified that the seizure took place after Loftland signed the consent form, and the motion judge found his account credible.

Loftland also argues that the judge should have drawn an adverse inference from the State's failure to produce the complete video recording of Loftland's interrogations and of his signing the consent form. Although this issue was not separately preserved for appeal, see R. 3:9-3(f), we consider it because it is related to the hearing on the suppression motion, at which Loftland argues the adverse inference should have been drawn.

To establish a claim of prosecutorial misconduct, a defendant must show "(1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972)) (discussing the test necessary to establish a Brady3 violation). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).

Our review of the record, in light of the judge's factual and credibility findings, convinces us that there was no Brady violation. There was no evidence that the videos would have been exculpatory or that the State suppressed such evidence or otherwise acted in bad faith. There was a rational explanation for the absence of the complete recording. In addition, the judge credited Love's testimony with respect to the voluntary nature of the consent.

Affirmed.4

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 See State v. Domicz, 188 N.J. 285, 302-03 (2006).

3 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963).

4 We deny the State's motion to suppress portions of the brief and appendix.