STATE OF NEW JERSEY v. PETER SAMUELL

NOT FOR PUBLICATION WITHOUT THE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.

PETER SAMUELL a/k/a

SAMUEL PETER,

Defendant-Appellant.

__________________________________

February 25, 2015

Submitted December 3, 2014 Decided

Before Judges Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-07-0710.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Peter Samuell appeals from his conviction by guilty plea following the trial court's denial of his motion to suppress evidence. See R. 3:5-7(d). We reverse.

Defendant and three others were indicted on multiple counts charging the possession of marijuana with intent to distribute and firearms offenses. After the suppression hearing, defendant entered into a plea agreement and pleaded guilty to fourth-degree possession of more than fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(3). Other charges against defendant were dismissed, and he was sentenced to time served, 541 days, and a total of $955 in money penalties.

The charges arose from a warrantless police entry of a fenced backyard and home. Defendant contends a police officer's scaling the fence and coming onto the back porch was unconstitutional conduct and all the evidence subsequently seized pursuant to a search warrant must be suppressed as the fruit of the initial unlawful entry. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963). We agree.

The evidence at the suppression hearing established the following facts. At about 10:00 p.m. on April 6, 2011, the Trenton Police Department received a 911 call that shots had been fired in the vicinity of a specific address on Edgemore Avenue. Additional citizen calls redirected the police to a house on Ellsworth Avenue that backed up to the Edgemore Avenue address. The anonymous citizen tips included an allegation that a gun was concealed in a doghouse in the backyard.

Several police officers were dispatched to the location and observed the backyard of the Ellsworth Avenue home from an adjacent abandoned property. The yard was surrounded by a chain link fence. Officer Bledsoe testified at the suppression hearing that he saw doghouses and three chained pit bulls and a chained bulldog in the yard. The police called for the city's animal control personnel to assist. At the same time, an officer went to the front door of the house and knocked while nine or more other officers surrounded the property.

Co-defendant David Crawford answered the front door. The officer asked him to bring the dogs inside. The officer learned that Crawford's street name was "Jungle," and he recognized that name as a person who had prior involvement with the police. He relayed that information to the other officers.

A few minutes later, Crawford emerged onto the back porch of the house, while the officers watched from outside the fence. Officer Bledsoe testified that he had already smelled marijuana coming from the house, and the smell grew stronger when Crawford opened the back door. Crawford appeared nervous when he saw the officers surrounding the backyard. The police told him they had received a report of shots being fired and suspected a gun was concealed in the backyard. Bledsoe ordered Crawford to come to the fence so that he could be frisked for weapons, but Crawford did not obey.

Bledsoe then climbed to the top of the fence and jumped about six feet and grabbed the railing of the back porch. He climbed onto the porch and detained Crawford. He testified that, as he was scaling the fence, he saw the barrel of a firearm on the ground under a piece of tar paper. While handcuffing Crawford on the porch, Bledsoe could see into the kitchen of the house. He told the other officers to secure the house because there were more people inside.

Officers entered through the back door and secured the people in the house. Inside the house, they saw in plain view a cardboard box that contained marijuana, a large quantity of marijuana on top of a comforter, a tent where marijuana plants were being grown, and many small bags of marijuana inside a boot. Using their flashlights in the backyard, the police saw ammunition inside a bag.

The persons who were found in the house were transported to police headquarters, and the police then obtained a search warrant. They seized an AK-47 assault rifle, the bag containing ammunition, the cardboard box containing marijuana, the comforter and three pounds of marijuana, the "grow tent" and numerous marijuana plants, and the boot filled with small bags of marijuana.

Officer Bledsoe and an evidence officer were the only witnesses to testify at the suppression hearing. The trial judge issued a written opinion in which he analyzed the several search and seizure issues argued by defense counsel. The court concluded that the officers were not within the curtilage of the house when they observed the backyard and corroborated some of the information provided by the 911 callers, and also when Officer Bledsoe detected the smell of marijuana coming from the house. The court also concluded that the officers "had an objectively reasonable and articulable suspicion that criminal activity was afoot in the rear yard or residence of [the] Ellsworth Avenue" home, in particular, illegal possession of a firearm and possession of marijuana. Next, the court concluded that Officer Bledsoe did not violate defendant's constitutional rights when he scaled the fence and detained Crawford in accordance with Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968), especially because Crawford would not obey his command to come to the fence to be frisked. Since the officer could see into the house from the porch and heard the voices of other people inside, the police could enter without a warrant under exigent circumstances for the purpose of securing the premises. The court found that the marijuana and illegal firearms were in plain view after the police entered the property and that they had probable cause to obtain a search warrant and to seize the evidence. The court entered an order on June 19, 2012, denying the motion to suppress the evidence.

On appeal, defendant argues

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.

A. The Police Did Not Have Probable Cause to Justify the Intrusion to Make the Arrest.

B. The Police Lacked Reasonable Suspicion to Justify a Stop and Frisk.

For purposes of our review, we accept the trial court's findings of fact, but we need not defer to the legal conclusions the court reached from those facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its decision. Ibid. The trial court's application of the law is subject to plenary review on appeal.

While the trial court's analysis was legally correct in most respects, the court erred in concluding that Officer Bledsoe did not contravene constitutional prohibitions when he jumped over the fence to detain Crawford. At that point, the police did not have probable cause to believe that Crawford was committing a firearms offense or an indictable marijuana offense. Reasonable and articulable suspicion of criminal activity does not authorize the police to enter private property to further their investigation. State v. Jefferson, 413 N.J. Super. 344, 354-55 (App. Div. 2010).

Under Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906, and subsequent cases, e.g., Dunaway v. New York, 442 U.S. 200, 210-11, 99 S. Ct. 2248, 2255-56, 60 L. Ed. 2d 824, 834-35 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607, 616-17 (1975); State v. Dickey, 152 N.J. 468, 477 (1998), the police may detain a suspect temporarily and investigate his possible involvement in criminal conduct if they have a reasonable and articulable suspicion that justifies the detention.

However, this "minimally intrusive" police conduct, State v. Maryland, 167 N.J. 471, 486 (2001); Dickey, supra, 152 N.J. at 478, must occur where the police have a right to be, not on private property from which the police are excluded. See Jefferson, supra, 413 N.J. Super. at 355-56. The cases that have considered whether the police had a right to detain and question a suspect involve encounters in public places, see, e.g., United States v. Hensley, 469 U.S. 221, 224, 105 S. Ct. 675, 677-78, 83 L. Ed. 2d 604, 609 (1985) (motor vehicle stop on public road); Terry, supra, 392 U.S. at 7-8, 88 S. Ct. at 1872, 20 L. Ed. 2d at 897 (public sidewalk); State v. Stovall, 170 N.J. 346, 352-54 (2002) (passenger disembarking from flight at an airport); or someplace where the police had as much or greater right to be than the suspect, see, e.g., State v. Nishina, 175 N.J. 502, 506-07 (2003) (school property on a late Sunday night).

The State has not cited any case recognizing an exception to the warrant requirement when the police enter a home to effect a Terry-type investigative detention of a suspect. As we stated in Jefferson, supra, 413 N.J. Super. at 354-55, such police conduct

is inconsistent with the constitutional requirement that police have a warrant, or establish an exception to the warrant requirement, when they enter a home to make a formal arrest. See Kirk v. Louisiana, 536 U.S. 635, 638, 122 S. Ct. 2458, 2459, 153 L. Ed. 2d 599, 603 (2002); Payton v. New York, 445 U.S. 573, 588-90, 100 S. Ct. 1371, 1381-82, 63 L. Ed. 2d 639, 651-53 (1980); State v. Bolte, 115 N.J. 579, 585-86, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989). If the police need a warrant or a recognized exception to enter a home to make an arrest, clearly they may not enter a home to effect a warrantless Terry-type detention . . . . see also United States v. Washington, 387 F.3d 1060, 1067-68 and n.8 (9th Cir. 2004) ("We have repeatedly held that an intrusion into someone's home may not be premised on Terry's reasonable suspicion standard.").

Reasonable suspicion to detain and question Crawford pursuant to Terry did not authorize the police to enter the private backyard and back porch for that purpose. Nor is this a case where the police first encountered Crawford in a public place and "set in motion" a Terry-type investigation and detention that took them momentarily onto private property. See State v. Nikola, 359 N.J. Super. 573, 576-77 (App. Div.), certif. denied, 178 N.J. 30 (2003).

In this case, the fence around the backyard was intended to exclude the public. See id. at 581-82; see also United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35 (1987) (a factor pertinent to determining the curtilage protected by the Fourth Amendment is "whether the area is included within an enclosure surrounding the home"). The backyard and porch were private property within the protected curtilage of the home.

To enter the private property, the police needed consent, a warrant, or an exception to the warrant requirement, such as both probable cause and exigent circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973). Here, the police did not have either consent or a warrant.

Nor did they have probable cause to believe that Crawford or someone else in the house was committing a firearms offense or was involved in the shooting incident. Probable cause requires "a 'well grounded' suspicion that a crime has been or is being committed." State v. Johnson, 171 N.J. 192, 214 (2002) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). The citizens' 911 calls and the limited corroborating evidence when the police saw dogs and doghouses in the backyard did not rise to the level of probable cause to believe that Crawford or another occupant of the Ellsworth Avenue house had shot a gun. Cf. Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 1923-24, 32 L. Ed. 2d 612, 617 (1972) (informant's unverified tip not sufficient to constitute probable cause to arrest defendant or search his car but "carried enough indicia of reliability to justify" investigatory stop); State v. Arthur, 149 N.J. 1, 15 (1997) (police had reasonable suspicion of a drug transaction to make a motor vehicle stop and to investigate but not probable cause to search his person for drugs). Reasonable suspicion that a gun may have been hidden on the premises did not authorize the police to enter and detain Crawford.

At most, the court's acceptance of Officer Bledsoe's testimony that he detected the smell of marijuana established probable cause to suspect unlawful possession of marijuana by one or more occupants of the house. But the smell of marijuana and the other information the police learned was still not sufficient for a warrantless police entry.

A warrantless entry or search of a residence is presumptively unreasonable and therefore constitutionally prohibited unless the police can show "'exigent circumstances' in conjunction with probable cause" and proof of the reasonableness of the police conduct. State v. Walker, 213 N.J. 281, 289 (2013) (quoting Bolte, supra, 115 N.J. at 585-86); accord State v. Vargas, 213 N.J. 301, 314 (2013); State v. Valencia, 93 N.J. 126, 136 (1983). "Under state as well as federal constitutional norms, '[a] warrantless search of a person's home must be subjected to particularly careful scrutiny, because physical entry of the home is the chief evil against which the wording of the Fourth Amendment is direct[ed].'" State v. Hinton, 216 N.J. 211, 233 (2013) (alterations in original) (quoting State v. Cassidy, 179 N.J. 150, 160 (2004)); accord Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct. 1284, 1290, 157 L. Ed. 2d 1068, 1079 (2004).

In Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 2098, 80 L. Ed. 2d 732, 743 (1984), the Court stated: "Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Accord Payton, supra, 445 U.S. at 586, 100 S. Ct. at 1380, 63 L. Ed. 2d at 651; Walker, supra, 213 N.J. at 289.

In State v. Penalber, 386 N.J. Super. 1, 9 (App. Div. 2006), we held that the police were not authorized to enter an open apartment door without a warrant to arrest the person who made an undercover sale of narcotics there forty-five minutes earlier. We quoted a pertinent observation of the United States Supreme Court: "In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. at 11 (quoting Payton, supra, 445 U.S. at 590, 100 S. Ct. at 1382, 63 L. Ed. 2d at 653).

While the smell of marijuana provided probable cause, it did not establish exigent circumstances for a warrantless entry. In Johnson v. United States, 333 U.S. 10, 12, 68 S. Ct. 367, 368, 92 L. Ed. 2d 436, 439 (1948), an informant told police of persons smoking opium in a hotel room. The police investigated and smelled "a strong odor of burning opium" coming from the room. Ibid. They knocked and announced themselves as police. After a delay during which the police heard some "shuffling or noise," the defendant opened the door. The police entered without a warrant and arrested her. They searched the room and found opium and a smoking device. Ibid.

The Supreme Court held that the police entry and search violated the Fourth Amendment. Id. at 14-15, 68 S. Ct. at 368-69, 92 L. Ed. 2d at 440-41. The Court noted that "[n]o suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time would disappear." Id. at 15, 68 S. Ct. at 369, 92 L. Ed. 2d at 441. See also Taylor v. United States, 286 U.S. 1, 5-6, 52 S. Ct. 466, 467, 76 L. Ed. 951, 953 (1932) (the smell of whiskey coming from a garage did not create exigent circumstances for warrantless entry by federal prohibition agents).

In State v. Holland, 328 N.J. Super. 1 (App. Div. 2000), rev d on other grounds, 176 N.J. 344 (2003), we stated that the smell of burning marijuana may establish probable cause but not exigent circumstances to make a warrantless entry and to search when it shows nothing more than probable cause that a disorderly persons offense is being committed. Id. at 7-8, 10-11 (citing Welsh, supra, 466 U.S. at 740, 104 S. Ct. at 2091, 80 L. Ed. 2d at 732). Similarly, in Bolte, supra, 115 N.J. at 597, the Supreme Court held there was no showing of exigent circumstances for warrantless entry of the suspect's home where police only had probable cause that he had committed disorderly persons and traffic offenses.

Although there is often the prospect of destruction or concealment of evidence when the police suspect illegal possession of marijuana, that prospect alone does not establish exigent circumstances where the police have nothing more than evidence of a disorderly persons or lesser offense. See Holland, supra, 328 N.J. Super. at 10-11; see also Welsh, supra, 466 U.S. at 753-54, 104 S. Ct. at 2099-100, 80 L. Ed. 2d at 745-46 (loss of evidence of suspect's intoxication as blood alcohol level dissipates with the passage of time).

Here, the State made no showing of an exception from the warrant requirement when Officer Bledsoe scaled the chain link fence, jumped onto the porch, and detained Crawford. Until Bledsoe made the unlawful entry onto private property and other officers then entered the house, the police did not have probable cause to believe the house or yard contained evidence of a firearms offense or of possession of a quantity of marijuana that would result in an indictable charge. Bledsoe's intrusion infringed upon the "firm line at the entrance to the house" when applying the protections of the Fourth Amendment. Kirk, supra, 536 U.S. at 638, 122 S. Ct. at 2459, 153 L. Ed. 2d at 602 (quoting Payton, supra, 445 U.S. at 590, 100 S. Ct. at 1382, 63 L. Ed. 2d at 653).

Because the police observation of additional evidence in plain view and the evidence seized pursuant to the search warrant were the fruits of the initial unlawful entry, the evidence should have been suppressed. Wong Sun, supra, 371 U.S. at 485, 83 S. Ct. at 416, 9 L. Ed. 2d at 453-54; Cassidy, supra, 179 N.J. at 164.

Reversed and remanded for further proceedings consistent with this decision. We do not retain jurisdiction.