STATE OF NEW JERSEY v. TOYON HATCHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TOYON HATCHER, a/k/a

MARQUIS HATCHER,

Defendant-Appellant.

____________________________________________

January 31, 2017

Submitted December 6, 2016 Decided

Before Judges Yannotti, Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-04-1134.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After the trial court denied his motion to suppress, defendant Toyon Hatcher pled guilty to second-degree possession of a weapon while committing an offense involving a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:39-4.1(a). Defendant appeals from the judgment of conviction dated April 6, 2015. We affirm.

I.

Defendant was charged under Essex County Indictment No. 14-04-1134, with third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10(a) (count one); third-degree possession of CDS (cocaine), in a quantity of less than one-half ounce, with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); possession of CDS (cocaine) with the intent to distribute the same within a school zone, N.J.S.A. 2C:35-7(a) (count three); possession of an assault firearm (a rifle) without a valid firearms purchaser identification card, N.J.S.A. 2C:39-5(f) (count four); possession of hollow-nose or dum-dum bullets, N.J.S.A. 2C:39-3(f) (count five); and possession of a firearm (rifle) while in the course of committing, attempting to commit, or conspiring to commit an offense involving a CDS, N.J.S.A. 2C:39-4.1(a) (count six).

Thereafter, defendant filed a motion to suppress. At the hearing on the suppression motion, the following evidence was presented. On February 3, 2014, a warrant was issued for defendant's arrest on a robbery charge. Detective Rajhan Gordon of the Newark Police Department testified that he had been with the Department for nine years, and he was then assigned to the Department's Fugitive Apprehension Unit (FAU).

In February 2014, Gordon was following up on an investigation of defendant, who was wanted for a robbery. The FAU internally performed a computer search to identify all possible addresses or locations where the suspect may be living. The search revealed the address of defendant's mother, N.S., on South 16th Street in Newark.1

On February 6, 2014, Gordon and other members of the FAU went to the apartment on South 16th Street. N.S. answered the door, and Gordon identified himself and the other members of the FAU as police officers. Gordon told N.S. he had a warrant for her son's arrest. She permitted the officers to enter the home. She stated, "[c]ome in. He's not here."

N.S. told the officers they could look around the apartment, if they wanted to do so. Gordon looked around, but he did not see defendant. S.K., defendant's girlfriend, was present at the time. She was nine months pregnant with defendant's child. S.K. told the officers she had not seen defendant for a few days.

On the morning of February 17, 2014, at around 7:15 a.m., Gordon and other members of the FAU returned to N.S.'s apartment. Gordon testified that he heard footsteps from inside the apartment. After a few minutes, N.S. opened the door. Gordon said she stepped back "like in awe, like she [was] frightened." Gordon asked N.S. if her son was home. She did not answer, but she looked nervous. S.K. also was in the apartment. S.K. exited a bedroom, holding a newborn child. According to Gordon, S.K had "a nervous look" and did not say anything.

N.S. stepped back into the apartment, leaving the door open. Gordon said he "peeked" into the bedroom to see if defendant was there. At that point, Gordon heard movement coming from inside a bedroom closet. Gordon opened the closet door and, using his flashlight, looked towards the back of the closet. Gordon observed defendant attempting to hide underneath bags.

Gordon ordered defendant to show his hands and to come out of the closet. Defendant complied. Gordon arrested defendant, who was wearing a T-shirt and underwear. The other officers assisted defendant in getting dressed. Defendant asked if he could put on a black hoodie. Detective Keith Hughes checked the garment for purposes of officer safety. He found forty-three bags of what was later determined to be cocaine.

Detective Tyrone Morton testified that defendant appeared nervous. He said defendant was looking around the apartment, "like there [were] things that we didn't immediately see that maybe he didn't want us to see." Defendant then told the officers that there was "a gun here." He directed the officers to a laundry bag in the bedroom, near the closet. One of the officers went to the bag and recovered an AK-47 and a magazine with additional live rounds.

N.S. testified that defendant did not reside in her apartment. According to N.S., S.K. was only "staying" in her apartment. N.S. said that when the officers first came to the apartment, S.K. was "getting ready" to have a baby, and N.S. was "helping her" with defendant's other children. N.S. stated that when the officers returned on February 17, 2014, S.K. was "staying" in the apartment because she had "just had the baby," so "she was there."

N.S. further testified that when the officers returned on February 17, 2014, the police pounded on the door and demanded that she open the door. N.S. stated that when she opened the door, several officers went straight to the rear of the apartment, towards the back door. Another officer went to her daughter's room, where they found defendant in a closet.

N.S. said the officers did not ask for her consent to enter the apartment. She also said the officers did not show her a search warrant or an arrest warrant. She testified that the officers rushed into the apartment and immediately began to search the premises. She stated that she was still "actually standing" holding the door when the officers apprehended defendant. According to N.S., defendant was already in handcuffs when she closed the front door. N.S. claimed that she asked the officers several times to show her a search warrant, but they did not respond.

On cross-examination, N.S. admitted that on the morning of February 17, 2014, when the officers arrived at her apartment, she opened the door. She acknowledged that she did not tell the officers they were not welcome or that they could not enter the apartment. N.S. also conceded that she did not tell the officers that defendant was not there. She claimed that the officers did not give her a chance to say anything.

N.S. also stated that defendant lived with her on Ridgewood Avenue in Newark about three years before the hearing. When N.S. relocated to her apartment on South 16th Street, defendant and S.K. moved to a residence on Custer Avenue in Newark. They had two children at the time. N.S. was not sure when defendant and S.K. moved out of that residence.

N.S. further testified that S.K. and the two children had been staying with her in the apartment on South 16th Street, before S.K. had the baby. She stated that defendant never lived with her on South 16th Street. She testified, however, that defendant was her son and was always welcome at her home. On occasion, he would fall asleep there.

II.

The motion judge placed his decision on the record. The judge found that on the morning of February 17, 2014, N.S. did not give the officers consent to enter her apartment and search it. The judge found that N.S. merely opened the door and this was not the equivalent of telling the officers to come in and look around. The judge also found that a search of the apartment was not justified on the basis of exigent circumstances.

The judge then considered whether the officers had an objectively reasonable basis to believe that defendant resided in his mother's apartment and was present there at the time of the arrest. The judge found that N.S.'s testimony was not credible, and instead credited the testimony of the detectives. The judge stated

I don't think that really the facts are all that much in dispute here. The detectives and [N.S.] were, in large part consistent with [their] testimony about what occurred on the 6th, as well as on the 17th. They're really not that divergent in terms of what transpired. But I do believe the police had [an] objectively, reasonable basis for believing that [defendant] would be at the location of his mother and his girlfriend, who had just given birth . . . and that he would be there in the early morning hours, before [defendant] had time to leave the residence.

So[,] the [c]ourt is satisfied that the police used good common sense. They used good intuition, and that they had an objective, reasonable basis for believing that [defendant] would be with his girlfriend and newborn child, along with his mother in his mother's apartment on the 17th based on those circumstances.

Now, once we establish that, . . . the police went into one of the bedrooms and found [defendant] hiding himself in the closet. They told him to come out, [which] he did. [They] [p]laced him under arrest. Their job at that point was successful, and . . . that's what they were there to do. They did that. And there was testimony that he was not properly dressed. He [was] in his underwear and a T-shirt, and common courtesy would be that the police would allow a . . . suspect . . . [to] put on a pair of pants and a shirt, shoes, sneakers, something to leave.

So the fact that . . . there was, I believe it was a black hoodie and a pair of pants that was on the floor by the bed. The police were going to give [defendant] the hoodie and the pair of pants to put on before they took him from the apartment. It would only be common sense for the safety of not only [defendant], but for the safety of the officers for them to search the items he was going to be wearing, . . . to make sure that there's no weapon . . .

The judge noted that the police found forty-three bags of cocaine in defendant's clothes, and thereafter defendant informed the officers that he had a gun, which was in a laundry bag near the closet. The police seized the weapon. The judge found that under the circumstances, the seizure of the weapon was appropriate. The judge concluded that the police had acted responsibly in executing the warrant, arresting defendant, and seizing the drugs and weapon. The judge entered an order dated July 8, 2014, denying the motion to suppress.

Thereafter, defendant pled guilty to count six of the indictment, in which he was charged with possession of a firearm, while in the course of committing an offense involving CDS. The State agreed to dismiss the other charges and recommended a sentence of three and one-half years, with three and one-half years of parole ineligibility. The trial court sentenced defendant in accordance with the plea agreement, and entered a judgment of conviction dated April 6, 2015. This appeal followed.

III.

On appeal, defendant raises the following single argument for our consideration

POINT I

SINCE THE TRIAL COURT FAILED TO RECOGNIZE THAT THE POLICE USED THE WARRANT FOR DEFENDANT'S ARREST AS A "SURROGATE FOR A SEARCH WARRANT," THE TRIAL COURT'S FACTUAL FINDINGS AND CREDIBILITY DETERMINATIONS ARE ENTITLED TO NO DEFERENCE BECAUSE THEY ARE NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD.

Defendant argues that the trial court's findings of fact are not supported by the evidence presented at the suppression hearing. He contends that when the detectives returned to N.S.'s apartment on February 17, 2014, they had no new information indicating that he was residing in the apartment and likely to be present there at that time. Defendant contends the police may have had an objectively reasonable basis to believe that he was in the apartment on February 17, 2014, to visit his family, but argues that there is no evidence to support the court's finding that the police had an objectively reasonable basis to believe he was residing there. We are not persuaded by these arguments.

We addressed similar issues in State v. Miller, 342 N.J. Super. 474, 480 (App. Div. 2001). In that case, a parole warrant had been issued for the defendant's arrest, and the supervising parole officer thereafter attempted to locate the defendant at the address listed in the warrant. Id. at 481. On the parole officers' first visit, the defendant's aunt told one of the officers that the defendant did not live at that address and she was uncertain where he could be found. Ibid.

The parole officer reviewed the case file and determined that the defendant spent a great deal of time with his girlfriend, who was the mother of his two children, at a particular residence on Colonial Avenue in Trenton. Id. at 480-81. The parole officers went to that location to execute the warrant. Id. at 481. The mother of the defendant's girlfriend was the occupant of that home, and she told the officers that defendant did not reside there. Ibid. However, she told the officers that the defendant, her daughter, and their children were residing in an apartment on Spring Street in Trenton, and that they were there at that time. Ibid. The officers went to the Spring Street address and gained entry into the apartment. Id. at 480.

They found the defendant in the front bedroom of the apartment Ibid. He had been trying to hide under a bed, and he was dressed only in his underwear. Ibid. The officers arrested the defendant and had him sit on the bed. Ibid. The defendant selected something to wear from clothes on the floor. Ibid. The officers searched the clothes and found marijuana. Ibid. In a nightstand by the bed, the officers also found plastic bags and clear bottles that contained marijuana. Ibid. The defendant was charged with possession of CDS and possession of CDS with intent to distribute. Ibid.

Based on the evidence presented at the hearing on the motion to suppress, the trial court found that the defendant was a visitor to the Spring Street apartment, but it was not his residence. Id. at 482. The trial court also found that the defendant's girlfriend did not consent to the officers entry into the apartment, but only allowed them to enter when she realized that they were going to enter and search the apartment whether she gave her consent or not. Id. at 483. The court determined that the evidence obtained in the defendant's clothing and in the nightstand must be suppressed. Ibid.

We affirmed the trial court's order. Id. at 500. We explained that in determining whether a search conducted incident to the execution of an arrest warrant is lawful, the critical distinction is whether the dwelling is the residence of the subject of the arrest warrant, or that of a third party. Id. at 494-95. We stated that

to the extent a hierarchy of search and seizure values exists, the interests in privacy and integrity of person and property which those values are designed to protect are greater for the resident of a dwelling who is not the object of an arrest warrant than they are for the person who is named in the warrant. The former command the highest regard and, except for special circumstances, are inviolable in the absence of a search warrant. Forcible entry to execute an arrest warrant is generally intolerable under traditional standards governing searches and seizures in this State. It follows that the use of an arrest warrant to gain any entry into a third party's home, but that which is freely consented to, is also forbidden unless the necessary special circumstances exist . . . . Except as it may satisfy the requirements of the Payton[2] rule, an arrest warrant may not be used as a pretext for gaining entry to conduct a search of a third party's home; and, even if entry is properly gained, the arrest warrant may be used to support a subsequent search only when that search is conducted incident to an arrest lawfully made.

[Ibid.]

We also stated that the validity of a search conducted in the execution of an arrest warrant in the premises of a third party depends on whether the officers had "an objectively reasonable basis for believing the residence to have been the home of the person named in the arrest warrant and that he was present at the time the warrant was executed." Id. at 497.

We concluded in Miller that the officers did not have sufficient information to believe defendant and his girlfriend were living together at the Spring Street location. Id. at 497. We noted that the only information the officers had was the statement by the girlfriend's mother, but this statement had not been supported "by observation, investigation or other inquiry." Ibid. We therefore held that the entry into the residence was "unbidden" and the search that followed was tainted. Id. at 500.

As noted, in this case, the motion judge concluded that the officers had an objectively reasonable basis to believe that defendant was residing in his mother's home and would be found there at the time the arrest warrant was executed. When reviewing a trial court's decision on a motion to suppress, we must uphold the court's factual findings if "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006) (citing State v. Locurto, 157 N.J. 463, 474 (1999))). "A trial court's findings should only be disturbed if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Here, there is sufficient credible evidence in the record to support the court's factual findings. As we have explained, N.S. testified that defendant was not residing in her apartment at the time the warrant was executed, but the motion judge found that her testimony was not credible. Furthermore, the judge found that the testimony of Detectives Gordon, Hughes, and Morton was credible. Their testimony established that they had an objectively reasonable belief that defendant was residing in his mother's apartment.

As the detectives' testimony showed, the FAU had conducted a computer search to identify defendant's possible residences, one of which was the address of defendant's mother on South 16th Street in Newark. The detectives visited that location on February 6, 2014. N.S. told the detectives to come in and said, "He's not here." The detectives looked around and did not see defendant. They did, however, learn that defendant's girlfriend, S.K., who was nine months pregnant with defendant's child, was staying in the apartment.

The detectives returned to the apartment on February 17, 2014, and knocked on the door. Several minutes passed before N.S. opened the door. As Detective Gordon testified, N.S. appeared nervous. Gordon asked her if defendant was there, and she did not reply. S.K. also was present with the newborn child. According to Gordon, she had a nervous look and did not say anything. Gordon peeked into the room to see if anyone else was there, and he heard sounds which indicated that someone else was present.

The facts together gave the detectives an objectively reasonable belief that defendant was residing in his mother's home with his girlfriend and their newborn child, and was present at the time they arrived to execute the warrant. S.K.'s presence in the apartment on February 6, and the fact that she and defendant's child were there eleven days later, indicated that she was residing in the apartment. If S.K. was residing there, it was reasonable to assume defendant also was doing so.

Moreover, N.S.'s and S.K.'s reaction to the detectives' presence on February 17, 2014, along with the sounds indicating that someone else was in the apartment at the time, gave the detectives additional, new information to support the belief that defendant was residing there. Defendant contends that the evidence only supported an inference that defendant might be in the apartment to visit his family; however, the evidence provided ample support for the court's finding that defendant also was residing in the apartment.

Defendant further argues that the trial court failed to give sufficient weight to N.S.'s testimony that defendant was not residing in her apartment at the time the detectives came to execute the warrant. He notes that N.S. had testified that defendant resided at other locations, specifically on Custer Avenue and Ridgewood Avenue.

However, as we stated previously, the trial court found that N.S.'s testimony was not credible. We must defer to the court's factual findings when, as in this case, they are "'substantially influenced'" by the court's "'opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting Johnson, supra, 42 N.J. at 161).

Because the detectives had an objectively reasonable basis to believe that defendant was residing in his mother's apartment and would be present there, the detectives had the authority to enter the apartment to execute the warrant. State v. Jones, 143 N.J. 4, 13 (1995) (citing Payton, supra, 445 U.S. at 603, 100 S. Ct. at 1388, 63 L. Ed. 2d at 661); Miller, supra, 342 N.J. Super. at 500. Furthermore, when the detectives executed the warrant, they were permitted to conduct a warrantless search of defendant's clothing incident to his arrest. Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2039-40, 23 L. Ed. 2d 685, 694 (1969) (noting that when making an arrest, the police may search the arrestee and the area within his immediate grasp to protect their safety and prevent the destruction of evidence).

The detectives validly seized the contraband found in defendant's clothes. They also validly seized the weapon after defendant told them that there was a gun in the laundry bag in the room, near the closet.

Affirmed.

1 We use initials to identify N.S. and others to protect their privacy.

2 Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).