STATE OF NEW JERSEY v. ROBERT LANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT LANE,

Defendant-Appellant.

August 6, 2014

Before Judges Sapp-Peterson and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 11-08-0982.

Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After unsuccessfully moving to suppress evidence, defendant Robert Lane pled guilty to third-degree possession of CDS (marijuana) with the intent to distribute, N.J.S.A. 2C:35-5(b)(11). He was sentenced to five years in prison with a parole disqualifier of three years.

On appeal, defendant presents the following argument:

BECAUSE ANY EXIGENCY IN RELATION TO THE INVESTIGATION WAS CREATED BY LAW ENFORCEMENT, THE DENIAL OF [DEFENDANT'S] MOTION TO SUPPRESS VIOLATED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

Our examination of the record convinces us that the motion was properly denied. We affirm.

I.

This case arises from a narcotics investigation and planned drug purchase at an apartment complex in Trenton, conducted by Trenton Police Department Detectives Rolando Ramos, Robert Runof, Jason Astbury, Matthew Bledsoe, and Charles Steever. We derive the following facts from the evidence the State presented at the suppression hearing.

In January 2011, Detective Runof received information from a confidential informant (CI) that an individual was selling large quantities of heroin outside of an apartment complex on Riverside Drive. During follow-up investigation at the complex, Detective Runof observed a large amount of foot traffic and noticed a particular person, Richard Hadley, "going in and out" of the apartment building, suspiciously.

As a result of Detective Runof's observations, he and his supervisor, Detective Sergeant Ronaldo Ramos planned a "buy-bust" operation whereby Detective Runof and the CI would meet Hadley outside on the street and purchase a package of heroin using $300 of marked bills. An arrest team would remain parked nearby in an unmarked van, and a backup team would also remain parked nearby in case Hadley attempted to flee.

On January 21, 2011, the officers implemented the plan. Detective Runof and the CI approached the apartment building and made contact with Hadley. However, contrary to the plan, Hadley told Detective Runof and the CI to come inside the building to complete the buy. Before entering the building, Detective Runof alerted Detective Steever that the buy would occur inside the apartment building, and not on the street, as planned.

Because the plan had changed from an outdoor to an indoor buy, the arrest team was forced to change their tactics. According to Detective Sgt. Ramos, the arrest team moved to the side of the building after Detective Runof and the CI entered the building. Because they were unsure what would occur inside, they wanted to be in position to provide a "quick response in case something bad were to happen."

Once inside, Detective Runof made the buy from Hadley in the stairwell of the apartment building. Detective Runof gave Hadley the marked currency and another man emerged from the third floor, Donte Lester, who took a portion of the money from Hadley and in return handed Hadley a quantity of heroin, which Hadley then gave to Detective Runof. Detective Runof then walked back downstairs, called Detective Steever and told him that he made the purchase and also gave him a physical description of Hadley and Lester.

The arrest team then moved inside the building and met Detective Runof and the CI as they were exiting the building. Detectives Astbury, Bledsoe, Ramos, and Steever immediately ran up the stairs. The officers were outfitted in tactical black police uniforms that said "POLICE" in capital letters across the front and displayed badges on their necks. As soon as Hadley and Lester saw the arrest team, they ran up the stairs to the third floor and into apartment 3A, where they shut and locked the door behind them. The arrest team followed closely behind and yelled at them to stop. Detective Astbury tried the doorknob of apartment 3A but found it locked. He banged on the door, yelling "police, open up." When there was no response, Detective Bledsoe kicked the door open , and the arrest team ran inside with weapons drawn.

Upon entering the apartment, the arrest team was surprised to see a large group of men in the living room. Detectives Ramos, Astbury, and Bledsoe began securing the men in the living room while Detective Steever went to the back of the unit. Detective Steever heard the toilet flush and viewed defendant exiting the bathroom. Detective Steever secured defendant and then checked the bathroom where he observed a large quantity of wet marijuana inside the uncovered toilet bowl. The time that elapsed from the detectives entering the building to the discovery of the marijuana in the toilet bowl was less than two minutes.

Defendant did not testify at the suppression hearing but he did present the testimony J.F.1, who indicated on the day of defendant's arrest, he was at home in apartment 3A. According to J.F., fifteen minutes after Lester entered the residence, he heard a knock on the door. The person at the door identified himself as "maintenance;" J.F. did not answer the door because he did not need anything fixed. The next thing he knew, the police kicked open the door.

At the conclusion of the hearing, defendant urged the court to suppress the seized marijuana, arguing that the five officers were not credible as they gave conflicting testimony and thus, "canceled each other out." Based on J.F.'s testimony, defendant also argued the detectives had misrepresented what occurred in the stairwell and had not conducted a hot pursuit of Hadley and Lester into apartment 3A. Defendant also presented photographs of the interior of the apartment building as evidence the officers could not have possibly viewed the defendants entering the particular apartment due to the "ripple effect" of glass block windows in the third floor hallway.

In an oral opinion placed on the record April 5, 2012, Judge Jeanne Covert denied the motion to suppress based upon the presence of exigent circumstances. The judge found the detectives' testimony credible and "remarkably consistent" with each other; further, the officers agreed on "fundamental facts." In contrast, she found J.F. lacked credibility. The judge also examined photographs of the glass block windows and found the officers easily could have determined which apartment defendant entered despite the ripple effect of the windows. The judge concluded the detectives were confronted with a situation where destruction of evidence was imminent and was in fact occurring as the officers entered the apartment; Hadley and Lester were clearly "aware that the police were on their trail." Thus, the officers had no time to obtain even a telephonic search warrant, which the judge estimated would have taken at least thirty minutes. By then, she found, any "evidence would have been long gone." The judge further noted the critical evidence inside the apartment the heroin, the marked money and the suspects clothing were the types of evidence that could be "readily destroyed or removed." This appeal followed.

II.

When reviewing a motion to suppress, we "'must uphold the factual findings underlying the [motion] court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). A motion court's findings of fact may be disturbed only when "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Best, 403 N.J. Super. 428, 434 (App. Div. 2008) (quoting Elders, supra, 192 N.J. at 244)), aff'd, 201 N.J. 100 (2010); see also State v. Locurto, 157 N.J. 463, 471 (1999).

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, 6, 7. A warrant is generally required before a search and seizure is conducted. A warrantless entry into a home also requires exigent circumstances. See generally Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); see also State v. Bolte, 115 N.J. 579, 585-86 (1989). Courts have "identified several exigencies that may justify a warrantless search of a home" including "the need 'to prevent the imminent destruction of evidence.'" Kentucky v. King, ____ U.S. ____, 131 S. Ct. 1849, 179 L. Ed. 2d 865, 875 (2011) (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 1947, 164 L. Ed. 2d 650, 657 (2006)); see also State v. Lewis, 116 N.J. 477, 484 (1989); State v. Hutchins, 116 N.J. 457, 467 (1989). This is "the most frequently relied on exigent circumstance in drug cases." Lewis, supra, 116 N.J. at 484. "[D]rugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain." King, supra, ___ U.S. at ___, 131 S. Ct. at 1857, 179 L. Ed. 2d at 876.

"The question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence." State v. Pena-Flores, 198 N.J. 6, 11, (2009). When a defendant retreats or causes some elements of a chase, and thereby causes a "hot pursuit" by police, the United States Supreme Court has stated the situations may create a "realistic expectation that any delay would result in destruction of evidence[,]" thus justifying a warrantless entry. Bolte, supra, 115 N.J. at 589 (quoting United States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 2410, 49 L. Ed. 2d 300, 305 (1976)).

Defendant argues that any exigent circumstances were created by the police. 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."

[Hutchins, supra, 116 N.J. at 476 (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." State v. De La Paz, 337 N.J. Super. 181, 196 (App. Div.) (quoting State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990)), certif. denied, 168 N.J. 295 (2001). Further "[p]olice-created exigent circumstances which arise from unreasonable investigative conduct cannot justify warrantless home entries." Ibid. (citing Hutchins, supra, 116 N.J. at 460). 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. The pertinent factors 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 was armed or dangerous; and the strength or weakness of the underlying probable cause determination.

[State v. Walker, 213 N.J. 281, 292 (2013) (quoting State v. Deluca, 168 N.J. 626, 632-33 (2001).]

"[T]he term 'exigent circumstances' is, by design, inexact. It is incapable of precise definition because, by its nature, the term takes on form and shape depending on the facts of any given case." State v. Cooke, 163 N.J. 657, 676 (2000).

The State argues this case does not involve the kind of deliberate conduct that courts have found to constitute police creation of exigent circumstances. We agree. The location of the drug purchase was changed by the drug dealers, not the police. Detective Runoff made the decision to go along with that plan. The record simply does not support defendant's argument the police created exigent circumstances through unreasonable investigative conduct.

Judge Covert carefully analyzed the factors cited in Walker in her oral decision, and her analysis fully supports her finding of exigent circumstances. As noted, our review of the court's decision on a suppression motion is limited. We are bound by the judge's factual findings so long as they are supported by sufficient credible evidence. See Elders, supra, 192 N.J. 243. We owe special deference to the judge's evaluation of witness credibility. See Locurto, supra, 157 N.J. at 474. Having reviewed the record, we find no basis to disturb Judge Covert's factual findings, and those findings determine the outcome of this appeal.

Affirmed.

1 We use initials to protect J.F.'s privacy.