STATE OF NEW JERSEY v. NAKESSE Q. ARMSTRONG

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0817-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

NAKESSE Q. ARMSTRONG,

          Defendant-Appellant.


                    Argued October 30, 2018 – Decided December 7, 2018

                    Before Judges Rothstadt, Gilson, and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment Nos. 14-04-1156
                    and 14-02-0183.

                    Michael T. Denny, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Michael T. Denny, of
                    counsel and on the brief).

                    Sarah C. Hunt, Deputy Attorney General, argued the
                    cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Sarah C. Hunt, of counsel and on the
                    brief).
PER CURIAM

      Defendant Nakesse Q. Armstrong and two co-defendants were indicted

for multiple crimes related to eight armed robberies. Defendant moved to

suppress a handgun and clothing seized from his apartment without a warrant.

Following the denial of that motion, defendant pled guilty to seven counts of

first-degree armed robbery,  N.J.S.A. 2C:15-1, and one count of second-degree

robbery,  N.J.S.A. 2C:15-1(a)(2).

      In accordance with his negotiated plea agreement, defendant was

sentenced to concurrent prison terms of fifteen years for the first-degree robbery

convictions and seven years for the second-degree robbery conviction. The

prison terms were also subject to a period of parole ineligibility, followed by

parole supervision, both as prescribed by the No Early Release Act,  N.J.S.A.

2C:43-7.2. Defendant appeals and contends that the trial court erred in denying

his motion to suppress the physical evidence seized from his apartment. We

disagree and affirm. The search and seizure were lawful and the motion was

properly denied.

                                        I

      Defendant's conviction arose out of a spree of armed robberies of eight

gas stations that occurred over a six-week period during August and September


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2013. Defendant was arrested and his apartment was searched following the

eighth robbery.

      On September 21, 2013, the Mount Laurel Police Department was

contacted and informed that a robbery had occurred at a gas station in the

neighboring town of Somerdale. An employee of the gas station reported that

two men armed with handguns had robbed the station. The owner of the station

had followed the men as they left in a vehicle and was able to report that the

suspects were driving a Mercury Grand Marquis. The owner was also able to

provide the police with the license plate number. The police ran a check and

learned that the vehicle was registered to defendant and that defendant lived at

an address in Mount Laurel. The police also obtained a photograph of defendant

from the Division of Motor Vehicles and matched that photograph with images

they obtained from surveillance video from the gas station. The surveillance

video also captured images of the two suspects and showed what each of them

was wearing.1

      Shortly thereafter, the police went to defendant's address and located his

car parked outside his apartment. The police then set up surveillance around the



1
 The trial court allowed testimony concerning the surveillance video to show
what the police knew at the time of the search and not for the truth of the matter.
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apartment.    Thereafter, police officers observed a car pull up outside of

defendant's apartment. Defendant then exited the apartment and ran towards the

car. The police moved in, arrested defendant, and searched him incident to that

arrest.

      Following defendant's arrest, the police continued their surveillance of the

apartment.   Approximately forty-five minutes later, two women exited the

apartment and the police stopped and questioned them. One of the women was

defendant's girlfriend and the mother of his child. The girlfriend informed the

police that her two-month-old child was sleeping in the apartment. An officer

testified that the girlfriend then asked the police to check on the child.

      The police went into the apartment and found the child, who was

unharmed. The police also conducted a protective sweep and, during that sweep,

they observed a handgun and clothing that appeared to be wet. Throughout the

evening of September 21, 2013, it had been raining heavily. The police secured

the apartment and applied for and obtained a search warrant. The police then

conducted a search of the apartment pursuant to the warrant and seized the

handgun and clothing.

      Following his indictment, defendant moved to suppress the physical

evidence seized from his apartment.          The trial court conducted a two-day


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evidentiary hearing and heard testimony from two of the responding officers and

defendant's girlfriend. One of the officers testified that when the girlfriend and

another woman came out of the apartment, the girlfriend informed him that there

was a child still sleeping in the apartment and that the girlfriend asked the

officers to check the home so she could re-enter it. The officer also testified

that the police then entered the apartment to make sure that the child was safe

and to search for the second suspected armed robber.

      The girlfriend's testimony differed from the police officer's testimony.

The girlfriend testified that her friend had received a call telling her that the

police were outside the apartment. The two women then opened the front door,

saw police lights, and tried to close the door. According to the girlfriend, the

police ordered the women out of the apartment and, as the women left the

apartment, the police entered the apartment. The girlfriend acknowledged that,

in response to questioning, she told the police that her child was in the

apartment. She testified, however, that she was not allowed back in to check on

the child. Instead, when she asked the police whether the child was all right,

they told her that they would look. Thereafter, an officer came back out and

told her that the child was fine.




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      Following the completion of the evidentiary hearing, on December 1,

2014, the trial court entered an order denying defendant's motion to suppress.

The court also issued a comprehensive thirty-three-page written opinion.

      In its opinion, the trial court made detailed findings of fact and

conclusions of law. Significantly, the court found the two police officers who

testified to be credible and found the girlfriend's testimony to be credible on

certain issues, but incredible concerning how the police entered the apartment.

In that regard, the trial court found that the girlfriend had informed the police

that the child was in the apartment and had asked the police to check on the

child's safety.

      The court then analyzed the searches and seizures in a series of steps

finding (1) probable cause for the arrest of defendant; (2) a lawful search

incident to the arrest of defendant; (3) a lawful entry into defendant's apartment

under the community-caretaking doctrine; (4) a lawful protective sweep of the

apartment; (5) the lawful discovery of the handgun and clothing in plain view;

and (6) a valid search warrant.

                                        II

      On appeal, defendant challenges the denial of his motion to suppress the

seizure of the physical evidence and contends


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            THE TRIAL COURT ERRED IN FINDING THAT
            POLICE    LAWFULLY     ENTERED     THE
            APARTMENT. BECAUSE THE EVIDENCE SEIZED
            WAS TAINTED BY THE UNLAWFUL ENTRY,
            ARMSTRONG'S MOTION TO SUPPRESS SHOULD
            HAVE BEEN GRANTED.

      Our review is limited when a motion to suppress is denied following an

evidentiary hearing. We defer to the factual and credibility findings made by

the trial court, "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)).      Deference is afforded "because the

'findings of the trial judge . . . are substantially influenced by his [or her]

opportunity to hear and see the witnesses and to have the "feel" of the case,

which a reviewing court cannot enjoy.'" State v. Reece,  222 N.J. 154, 166 (2015)

(quoting State v. Locurto,  157 N.J. 463, 471 (1999)). "An appellate court should

disregard those findings only when a trial court's findings of fact are clearly

mistaken." State v. Hubbard,  222 N.J. 249, 262 (2015) (citing State v. Johnson,

 42 N.J. 146, 162 (1964)). The legal conclusions of a trial court are reviewed de

novo. Id. at 263 (citing State v. Gandhi,  201 N.J. 161, 176 (2010)).

      The Fourth Amendment states that

            [t]he right of the people to be secure in their persons,
            houses, papers, and effects, against unreasonable
            searches and seizures, shall not be violated, and no

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            Warrants shall issue, but upon probable cause,
            supported by Oath or affirmation, and particularly
            describing the place to be searched, and the persons or
            things to be seized.

            [U.S. Const. amend. IV; see also N.J. Const. art. I, ¶ 7
            (using essentially identical language).]

Warrantless searches are presumed invalid, but the State may overcome that

presumption by showing that the search fell into one of the recognized

exceptions to the warrant requirement. State v. Hill,  115 N.J. 169, 173-74

(1989).

      The search and seizure at issue on this appeal involved several exceptions

to the warrant requirement. The trial court found that the police lawfully entered

the home under the community-caretaking doctrine. The court then found that

the gun and clothing were discovered in plain view during the course of a valid

protective sweep.

      A. The Community-Caretaking and Emergency-Aid Doctrines

      The community-caretaking doctrine, first enunciated by the United Sates

Supreme Court in Cady v. Dombrowski,  413 U.S. 433 (1973), is based on the

idea that police officers "often are called on to perform dual roles." State v.

Diloreto,  180 N.J. 264, 276 (2004). The doctrine applies when the "police are

engaged in functions, [which are] totally divorced from the detection,


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investigation, or acquisition of evidence relating to the violation of a [criminal]

statute." Id. at 275 (alterations in original) (quoting State v. Cassidy,  179 N.J.
 150, 161 n.4 (2004)).

      The doctrine serves as an exception to the warrant requirement for a search

(1) when officers' actions are "unconnected to a criminal investigation" and (2)

when their actions are "objectively reasonable under the totality of

circumstances." Id. at 278. The question "is not the circumstances that brought

the police to the scene . . ., but whether the actual entry into the [home] was for

the legitimate purpose of fulfilling a community caretaking responsibility."

State v. Bogan,  200 N.J. 61, 77 (2009).

      The community-caretaking role "extends to protecting the welfare of

children" and reflects "the State's general parens patriae duty to safeguard

children from harm." Id. at 75. Because "leaving children unattended may

constitute a significant threat to their safety and welfare," police may make a

warrantless entry "for the purpose of ascertaining the whereabouts and

condition" of an unattended child. Id. at 76 (quoting State v. Garland,  270 N.J.

Super. 31, 45-46 (App. Div. 1994) (allowing warrantless entry into a motel to

check on the welfare of a child under the emergency-aid doctrine)).




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      In New Jersey, "[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." State v. Vargas,  213 N.J. 301, 321

(2013). Nevertheless, "[p]olice officers serving in a community-caretaking role

are empowered to make a warrantless entry into a home under the emergency-

aid exception to the warrant requirement." Id. at 323. The emergency-aid

exception applies in exigent circumstances, allowing an officer to enter a home

without a warrant if the officer has "'an objectively reasonable basis to believe

that an emergency requires that he [or she] provide immediate assistance to

protect or preserve life, or to prevent serious injury' and there is a 'reasonable

nexus between the emergency and the area or places to be searched.'" Id. at 323-

24 (quoting State v. Edmonds,  211 N.J. 117, 132 (2012)). Accordingly, a

warrantless entry into a home to check on a child may be justified under a

combination of the community-caretaking doctrine and the emergency-aid

exception. See Vargas,  213 N.J. at 323-24.

      In this case, the trial court found that the officers were informed by the

girlfriend that her two-month-old child was unattended in the home. The court

also credited the police officer's testimony that he believed that the second

armed suspect might be in the home. Accordingly, the police acted in the


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community-caretaking function under the emergency-aid exception when they

entered the home to check on the safety of the child.

      B. The Protective-Sweep and Plain-View Exceptions

      In New Jersey, the protective-sweep exception to the warrant requirement

applies to both arrests and non-arrest settings. State v. Bryant,  227 N.J. 60, 70

(2016); State v. Davila,  203 N.J. 97, 116-21 (2010). In a non-arrest setting, the

State must prove that "(1) law enforcement officers are lawfully within the

private premises for a legitimate purpose, which may include consent to ent er;

and (2) the officers on the scene have a reasonable [and] articulable suspicion

that the area to be swept harbors an individual posing a danger." Bryant,  227 N.J. at 70 (alteration in original) (quoting Davila,  203 N.J. at 125).

      "[T]he legitimacy of the police presence must be probed." Davila,  203 N.J. at 126. The police may not "create[] the danger to which they [become]

exposed by entering the premises, and thereby bootstrap into an entitlement to

perform a protective sweep." Ibid. To ensure that the protective-sweep doctrine

does not "swallow whole the protections of the warrant requirement," id. at 121,

the court must scrutinize the State's justification to determine "whether the

request for entry was legitimate or a ruse[.]" Id. at 126.




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      The plain-view exception allows police to seize contraband in plain view

without a warrant if three requirements are met: "(1) the officer must be lawfully

in the viewing area when making the observation; (2) 'the discovery of the

evidence . . . must be inadvertent,'" State v. Gonzales,  227 N.J. 77, 91 (2016)

(citations omitted) (quoting Coolidge v. New Hampshire,  403 U.S. 443, 468,

469 (1971)); and (3) the "police officer must have 'probable cause to associate

the property with criminal activity.'" State v. Bruzzese,  94 N.J. 210, 237 (1983)

(quoting Texas v. Brown,  460 U.S. 730, 741-42 (1983)).

      In Gonzales, the New Jersey Supreme Court eliminated the inadvertence

prong of the plain-view test. Gonzales,  227 N.J. at 99. The Court, however,

applied that new rule of law prospectively as of the date of the opinion—

November 15, 2016. Id. at 101. The search at issue in this case took place on

September 21, 2013, and therefore, we analyze the officers' actions under the

pre-Gonzales standard.

      The trial court here found that the officers were lawfully inside the home

under the community-caretaking and emergency-aid exceptions to the warrant

requirement. Accordingly, the trial court properly found that prong one of the

protective-sweep exception was satisfied. Turning to the second prong, the

court found that the officers had a reasonable and articulable suspicion that the


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second robbery suspect was in the apartment.            Given the totality of the

circumstances, that suspicion was reasonable and the police acted appropriately

in conducting a sweep to protect their safety.

      The trial court also found that the protective sweep was conducted

"quickly, with the officers checking only [areas] where an adult suspect could

hide." The court then found that the clothes and the gun were inadvertently

observed in plain view during the protective sweep. All of those findings are

supported by substantial, credible evidence in the record, and we discern no

error in the trial court's application of the factual findings to the law.

      The State also argues that the entry into the home was made after the

girlfriend gave a valid consent to search. Further, the State argues that the search

and seizure was valid under the independent-source rule. Given our conclusion

that the trial court's findings are supported by substantial, credible evidence, we

need not reach those issues.

      Affirmed.




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