STATE OF NEW JERSEY v. LAURA TEPPER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3526-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAURA TEPPER,

Defendant-Appellant.

_______________________________

August 6, 2013

 

Submitted March 5, 2013 - Decided

 

Before Judges Messano, Lihotz, and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-03-0151.

 

Wronko & Loewen, attorneys for appellant (James R. Wronko, of counsel and on the brief).

 

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Assistant Prosecutor, on the brief).

 

PER CURIAM

A grand jury charged defendant Laura Tepper with third-degree possession of a controlled dangerous substance (marijuana) with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11). Prior to trial, defendant moved to suppress the drug evidence, alleging the warrantless search of her home was unconstitutional. Following an evidentiary hearing, the judge denied defendant's motion, concluding police entry into her home was valid under the community caretaking doctrine. Defendant pleaded guilty and was sentenced to a one-year probationary sentence. On appeal, defendant argues:

POINT I.

 

THE WARRANTLESS ENTRY INTO THE DEFENDANT'S REAR LAWN AND ONTO HER DECK WAS UNLAWFUL.

 

POINT II.

 

THE WARRANTLESS ENTRY INTO THE DEFENDANT'S HOME WAS UNLAWFUL.

 

Following our review, we reverse the order denying suppression of the narcotics evidence, and remand for the court to examine the matter in light of the considerations presented by the Court in State v. Vargas, 213 N.J. 301 (2013).

These facts are taken from the suppression hearing record. Two witnesses testified. The State called the investigating police officer, Pedro Rodrigues, and defendant called her neighbor, Lisa A. Miller.

On December 3, 2009, Jeffrey Weil, a school bus driver, entered the Hillsborough Police Department (HPD) to lodge a complaint seeking issuance of a summons against the female driver of a silver Honda that failed to stop as the bus's red lights were flashing. Weil, a former Franklin Township Police Department detective, provided the vehicle's license plate number and the address on Sheppard Street where he watched the driver park her vehicle and enter a residence. The incident occurred at approximately 2:50 p.m.

Officer Rodrigues checked the license plates with the Motor Vehicle Commission and determined the car was registered to Larry Golis, at an address in Middlesex County. Officer Rodrigues also obtained the photograph of Lynsay Golis, Larry's daughter, whom he learned also lived at the Middlesex County address. Weil identified the individual in the photograph as the driver who disregarded the bus's signal to stop.

Officer Rodrigues explained Weil was the only one who could issue the complaint because he saw the violation. Because it was a serious infraction, Rodrigues asked Weil to allow him to investigate and ask the driver whether extenuating circumstances were involved. Weil assented.

Officer Rodrigues next went to the Sheppard Street address provided by Weil, which was a corner property. He observed the silver Honda parked across the street from and a little to the left of the designated address. He parked behind the Honda and went to the address Weil provided. Rodrigues knocked on the front door and rang the doorbell several times; however, no one answered. Noticing a light in the kitchen, toward the back portion of the house, Officer Rodrigues walked on the grass to the back door. When he reached the backyard, he observed "a porch area," and although he did not see any people, he saw the rear sliding door was opened "about a foot." The door was surrounded by the deck but faced the street, not the backyard. Rodrigues testified the open door "put [him] on alert . . . because it is not common to see a sliding glass door open in December. So [he] approached the house on guard to see if there was anybody else walking around the house."

Rodrigues stepped onto the deck and looked into the kitchen. He then poked his head through the opening, announcing in a loud voice a couple times, "Police. Anybody home?" He received no response. Not wanting to enter the home without backup, he called dispatch and waited for assistance to "make sure something had not taken place[, such as] a burglary or anybody was assaulted or anything like that." Officer Rodrigues stated "a fair amount of residential burglaries in our town" had been carried out in a manner such that those crime scenes appeared similar to the scene he encountered on Sheppard Street. He explained that during prior burglaries, the perpetrators, after finding an unlocked door, "would . . . go in through a door and they wouldn't close the doors when they would leave." HPD officers "were constantly reminded at morning lineup to keep an eye out for anything unusual or any open doors[, b]ecause we were having a string of burglaries[.]" Within approximately two minutes, Corporal Ryan McCarron arrived from police headquarters to assist Officer Rodrigues.

Prior to entering the home, Rodrigues spoke to a neighbor, Lisa Miller. He "tried to see if she had contact information or anything like that" for the residents of the Sheppard Street home. However, he testified, "she didn't provide me any information." Officer Rodrigues was emphatic Miller did not offer an explanation for why the back door was open.

With their guns drawn, the two officers entered the residence and began checking rooms. No one was found. In the basement, the police discovered a coffee table with "a bunch of different size[d] jars of what appeared to be marijuana."

As Officer Rodrigues called detectives to the scene and secured the residence, defendant drove up, opened the garage door, and pulled her vehicle into the garage. Officer Rodrigues informed her of what had transpired and the nature of the discovery in the basement. Defendant executed a waiver consenting to a full search of her residence at approximately 6:30 p.m. Throughout the interaction with police, she repeatedly stated the marijuana was "all hers." Twenty-seven containers of marijuana, as well as drug paraphernalia, one thousand dollars in cash, and a black box containing ecstasy were seized.

On cross-examination, Officer Rodrigues acknowledged the last recorded burglary in the township occurred on May 16, 2009, seven months prior to the December incident at issue. Further, none of the reported robberies were in the vicinity of defendant's home, and all but one had occurred in a townhouse development. He also agreed there was no sign of forced entry at the Sheppard Street residence and the back door was partially obscured by hedges.

Miller, who lived next door to defendant, recounted her December 3, 2009 encounter with Officer Rodrigues. At approximately 5:30 p.m., she arrived home and saw a police car in front of defendant's house. An officer exited the police vehicle and Miller met him in front of her home. When asked whether she knew where her neighbors were, she replied she did not, noting she had not seen them in "a while." She was asked about the silver Honda, which she did not recognize. She suggested she then saw one of defendant's cats run by and "talk[ed] about . . . the possibility of the cats being around[,]" telling Officer Rodrigues defendant and her husband had cats that "come in and out of the house." Miller explained defendant has always had "[a]t least two and in some cases three or four" indoor/outdoor cats. Therefore, defendant's back door is "usually" kept open "a couple of inches." Miller believed she would have mentioned this "at that time," stating it was "a possibility." She was also equivocal when asked whether Officer Rodrigues told her the sliding glass door was open, stating "[t]hinking back[,] I am not sure if he mentioned it[.]" After the conversation, the police officer returned to his car.

On cross-examination, Miller stated Officer Rodrigues told her he was concerned "someone had possibly gotten into [defendant's] house." Although asked again whether Miller told the police defendant leaves the back door open for the cats, she did not give a definitive response.

In a written opinion, the judge credited Officer Rodrigues' testimony and found Miller's testimony "contradictory" and "unreliable." He determined the facts were "sufficient to establish an objectively reasonable exercise of the police caretaking function[,]" finding the police "went into the house to detect intruders, protect the community[,] and investigate as to whether a burglary had occurred in the premises." The court denied the motion to suppress, and defendant entered a guilty plea pursuant to a negotiated agreement.

In our review of a trial court's grant or denial of a motion to suppress, we "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, 192 N.J. 224, 243 (2007) (internal quotation marks and citations omitted). "We must give the judge's well-grounded credibility findings great deference." State v. Wright, __ N.J. Super. __, __ (App. Div. 2013) (slip op. at 44) (citing State v. Locurto, 157 N.J. 463, 470-71 (1999)). We are not permitted to "weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." Locurto, supra, 157 N.J. at 472 (internal quotation marks and citations omitted). However, we afford no deference to the trial court's legal determinations, which we review de novo. State v. Mann, 203 N.J. 328, 337 (2010) (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).

Examining defendant's argument that police invaded a constitutionally protected area, it is clear both the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution prohibit warrantless searches and seizures, absent a demonstration of the applicability of one of the well-delineated exceptions to the warrant requirement. State v. Wilson, 178 N.J. 7, 12 (2003) (citation omitted). "The State bears the burden of proving by a preponderance of the evidence the validity of a warrantless search." State v. Edmonds, 211 N.J. 117, 128 (2012) (citing Wilson, supra, 178 N.J. at 12-13).

Besides consent, among the recognized exceptions for which search and seizure is permissible without a warrant are items found in plain view, State v. Bruzzese, 94 N.J. 210, 235-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984); searches or seizures occurring while police are rendering emergency aid, State v. Earls, __ N.J. __, __ (2013) (slip op. at 39-40); State v. O'Donnell, 203 N.J. 160, 162-63, cert. denied, ___ U.S. ___, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010); and limited instances when police are performing a community caretaking function, State v. Vargas, 213 N.J. 301, 305 (2013); State v. Bogan, 200 N.J. 61, 73-77 (2009), cert. denied, ___ U.S. ___, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010). See State v. Harris, 211 N.J. 566, 581 (2012) (noting these exceptions to the warrant requirement).

"The touchstone of search-and-seizure analysis is one of reasonableness, for that is what both the Fourth Amendment and the New Jersey Constitution ultimately require in protecting citizens from 'unreasonable' intrusions." Wright, supra, __ N.J. Super. at __ (slip op. at 49) (citing State v. Rockford, 213 N.J. 424, 440-41 (2013)). "When determining the propriety of a warrantless seizure, '[t]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'" O'Donnell, supra, 203 N.J. at 162 (quoting Bogan, supra, 200 N.J. at 81).

The analysis in this matter must also consider the privacy expectations attached to a residence, as "[s]earches of a home without a warrant are presumptively unreasonable[.]" Ray v. Twp. of Warren, 626 F.3d 170, 174 (3d Cir. 2010). "Historically, federal and state courts have 'applied a more stringent standard of the Fourth Amendment to searches of a residential dwelling.'" Edmonds, supra, 211 N.J. at 129 (quoting Bruzzese, supra, 94 N.J. at 217). Generally, one's residence is viewed as "a place especially protected against unreasonable police intrusion." 1 Wayne R. LaFave, Search and Seizure 2.3 at 725 (5th ed. 2012). "Our constitutional jurisprudence has expressed an explicit preference that government officials first secure a warrant 'before executing a search, particularly of a home.'" Vargas, supra, 213 N.J. at 313 (quoting State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004), overruled in part by Edmonds, supra, 211 N.J. at 131-32). This results because "[t]he sanctity of one's home is among our most cherished rights[,]" Frankel, supra, 179 N.J. at 611 (citing Bruzzese, supra, 94 N.J. at 217), and it is beyond question a home holds an expectation of privacy against unreasonable intrusion. Defendant first argues police entry to her rear yard and deck contravened the Fourth Amendment protection against unreasonable searches and violated the sanctity of her home and its curtilage. Pointing out no walkway to the rear yard exists, she maintains the back yard and rear deck are areas protected from government intrusion because the homeowner "clearly did not provide any public access." We are not persuaded.

The Fourth Amendment's protection against warrantless searches extends to those areas immediately adjacent to a dwelling, known as curtilage, which "may include walkways, driveways, and porches." State v. Domicz, 188 N.J. 285, 302 (2006) (citing State v. Johnson, 171 N.J. 192, 208-09 (2002)). However, "when a law enforcement officer walks to a front or back door for the purpose of making contact with a resident and reasonably believes that the door is used by visitors, he is not unconstitutionally trespassing on to the property." Ibid. (citing Johnson, supra, 171 N.J. at 208-09 (declaring that "when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go[,]" the Fourth Amendment is not offended) (internal quotation marks and citations omitted)).

Here, we conclude the area leading to the home's rear entrance did not evince an expectation of privacy. The rear door faced a street, as shown in the photographs introduced during the suppression hearing. Further, the backyard was not blocked by an enclosure or fence. Officer Rodrigues saw lights in the rear of the home and believed someone may have been in the yard or back of the home, unable to hear the doorbell or his knocking. He believed the driver of the silver Honda entered the residence and the car remained parked at the home, yet no one responded to the bell. Therefore, he attempted to engage the occupants by accessing the rear entrance.

Accepting the trial court's credibility finding, we find no constitutional violation where police enter curtilage during a legitimate investigation. SeeDomicz, supra, 188 N.J. at 302; Johnson, supra, 171 N.J. at 208. In this matter, police first knocked at the front door and received no response. Then, after observing some of the lights were on, they proceeded through an unfenced area to access the back entrance of the home.

We turn to the issue of whether the officers' warrantless entry into defendant's home violated the Fourth Amendment, where the officers entered the residence in search of a possible burglar or other danger to the home's occupants. The trial judge relied on the community caretaking doctrine, originally discussed in Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 714-15 (1973). Following the trial judge's consideration of the issue, however, our Supreme Court fully examined whether the community caretaking doctrine may apply to a warrantless search of a residence. See Vargas, supra, 213 N.J. at 305.

In its review, the Court traced the historical application of the community caretaking doctrine, recent federal opinions on the issue, and its own recent opinions addressing warrantless entry into a residence. See Edmonds, supra, 211 N.J. at 117 (concluding community caretaking, as an exception to the warrant requirement, could not justify the full search of an apartment where the owner said there was no problem and repeatedly objected to police entry, despite a 9-1-1 call); Bogan, supra, 200 N.J. at 75-76 (upholding application of the police community caretaking role in justifying a de minimis intrusion into a home for the purpose of ensuring the safety of a child potentially in harm's way).

In Vargas, supra, the Court concluded "the community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency." 213 N.J. at 305. Defining the narrow limits of the doctrine's application when examining the warrantless search of a residence, id. at 320-21, the majority specifically rejected a test limiting proof only to a showing of "objectively reasonable" police conduct, id. at 330, 334 (Patterson, J., dissenting), and observed, "merely because police activities are divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute, does not mean that persons have a lesser expectation of privacy in their homes," id. at 325 (internal quotation marks and citations omitted). Accordingly, "[w]ithout the presence of consent or some species of exigent circumstances, the community-caretaking doctrine is not a basis for the warrantless entry into and search of a home." Id. at 321.

Vargas sets forth a test to determine the validity of police entry into or search of a home without a warrant or consent. Supra, at 326. The two-part test requires police to "have an objectively reasonable basis to believe that an emergency require[d] immediate action to protect life or prevent serious injury." Ibid. (alteration in original) (internal quotation marks and citations omitted).

Here, the trial judge did not have the benefit of the Vargas test to guide his review of the challenged police conduct. Consequently, we conclude reversal and remand is necessary to allow the court to consider the matter in light of the Court's recent decision.

Reversed and remanded. We do not retain jurisdiction.