STATE OF NEW JERSEY v. SHELDON M. GOLDSBOROUGH

NOT FOR PUBLICATION WITHOUT THE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-3501-18T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

SHELDON M. GOLDSBOROUGH,
a/k/a SHELDON GOLDSBORO,
MIKEY GOLDSBORO, MICHAEL,
and MICKEY,

     Defendant-Appellant.
_____________________________

                   Submitted January 23, 2020 - Decided February 12, 2020

                   Before Judges Fuentes, Mayer and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cumberland County, Indictment No. 17-11-
                   1056.

                   Lauren A. Wimmer, attorney for appellant.

                   Jennifer    Webb-McRae,        Cumberland       County
                   Prosecutor, attorney for respondent (Andre R. Araujo,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from an April 5, 2019 judgment of conviction based on

a guilty plea, focusing on a September 14, 2018 order denying his motion to

suppress evidence. We affirm but for reasons other than those expressed by the

judge.1

      On November 29, 2017, defendant was charged in a multi-count

indictment with offenses associated with possession of heroin, including the

first-degree offense of maintaining or operating a facility for the production of

heroin, possession of weapons, and endangering the welfare of a child.

      On December 16, 2017, defendant filed a motion to suppress evidence

discovered at the time of his arrest. The trial court conducted an evidentiary

hearing on defendant’s motion on the following dates: March 27, 2018; April 3,

2018; April 20, 2018; July 6, 2018; and August 6, 2018. In a September 14,

2018 order and written decision, the judge denied defendant’s motion to

suppress.

      On February 25, 2019, defendant entered into a negotiated agreement with

the State wherein he pleaded guilty to second-degree conspiracy to manufacture,

distribute, or possess heroin with intent to distribute,  N.J.S.A. 2C:5-2(a)(1), and


1
  "[B]ecause an appeal is taken from a trial court's ruling rather than reasons for
the ruling, we may rely on grounds other than those upon which the trial court
relied." State v. Adubato,  420 N.J. Super. 167, 176 (App. Div. 2011).
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                                        2
second-degree possession of a firearm while committing a CDS offense,

 N.J.S.A. 2C:39-4.1(a). In exchange, the prosecutor agreed to recommend the

court sentence defendant to an aggregate ten-year term of imprisonment, with

fifty-two months of parole ineligibility. 2 On April 5, 2019, the judge sentenced

defendant in accordance with the terms of the plea agreement.

         At the suppression hearing, Detective Brian Cole testified on behalf of the

State.     The following witnesses testified on behalf of defendant:        Natrice

Tilghman, defendant's children, and Detective Charles Mackafee. The following

facts were adduced during the suppression hearing.

         On August 31, 2017, law enforcement officers executed an arrest warrant

for defendant. Detective Cole was assigned to the U.S. Marshals Fugitive Task

Force and personally participated in the execution of the arrest warrant. The

warrant sought defendant's arrest for charges stemming from a double homicide.

         Before executing the warrant, law enforcement officials discussed an

arrest plan. The police were familiar with defendant based on previous contacts

and knew he resided with Natrice Tilghman, his longtime girlfriend, and his

children at his home in Vineland. Detective Cole testified defendant "was



2
  The second-degree possession of a firearm offense is subject to the mandatory
parole ineligibility provisions of the Graves Act,  N.J.S.A. 2C:43-6c.
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                                          3
involved in narcotics distribution and manufacturing, assaults, [and] weapons

offenses."     Based on defendant's criminal history, including weapons

possession, fourteen officers were assigned to execute the arrest warrant.

      Defendant's home was a "split level," having stairs leading up to the main

level and stairs leading down to the basement. Upon entering the front door,

there was an interior landing allowing a person to see the ascending and

descending stairs in defendant's home.

      When approaching defendant's home to execute the arrest warrant,

Detective Cole observed multiple cars parked outside. The number of cars

indicated to Detective Cole that several people may be inside the home at the

time. In executing the warrant, law enforcement approached the front door

armed and arrayed in a five-person line. The first person in the line held a

protective shield. Detective Cole, the third person in the line, knocked on the

door and identified the group as police officers. The officers wore plain clothing

with tactical gear identifying them as law enforcement personnel.

      After knocking several times, Michael Loftin answered the door. As soon

as the door opened, the officers observed the ascending staircase to the right of

the landing and the descending staircase to the left of the landing. Loftin did

not cooperate with law enforcement. Not only did he refuse to tell the officers


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if defendant was present, Loftin would not state if there were other people inside

the home. The officers removed Loftin from the home and handcuffed him.

Loftin, who was not arrested, was detained for the safety of the officers

executing defendant's arrest warrant.

      According to Detective Cole, while standing outside the home, he yelled

for defendant to exit the house. There was no response. Shortly thereafter,

several other individuals exited the home. The exiting people refused to tell the

police officers if defendant, or anyone else, remained inside the house.

      The officers, still positioned outside the front door, continued to yell for

defendant, and any other persons present, to exit the building. Several minutes

later, defendant walked from the upper staircase to the front door. He was

arrested at the front doorway, handcuffed, and seated on the steps immediately

outside the front door.

      At this point, the officers asked defendant if anyone else was inside the

home. Because defendant did not respond, the officers continued to call out to

determine if there were other people inside. With the front door open, the

officers heard "crying coming from the basement." The officer in charge of the

operation then authorized a protective sweep of the house. One group of officers

went to the right and walked upstairs, and another group of officers went to the


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left and walked downstairs. According to Detective Cole, the purpose of the

sweep was to ensure there was no one injured inside the home and there were

no additional persons in the house who could pose a threat to the officers.

        Detective Cole was in the group of officers who went to the basement area

of the home. The officers opened the door to a basement bedroom and found

two young girls crying.3 An officer escorted the girls outside the home.

        Detective Cole's group continued their protective sweep of the basement

area, which was dark and unfinished. It was in the unfinished area of the

basement that the officers saw a plastic straw, spoon, and a credit card. These

items were covered in a white powder. The officers also saw a container of

Inositol, commonly used to cut CDS, and plastic baggies, often associated with

packaging of illicit drugs. The officers also found two ballistic vests in the

laundry room adjacent to the area where the other items were found.

        The officers reported their observations in the basement to the lead

investigator, Detective Mackafee. Detective Mackafee entered the basement

and confirmed the presence of the items observed by Detective Cole and his

team.     Detective Mackafee decided to obtain a search warrant to search



3
  The children in the basement bedroom were defendant's eleven year old twin
daughters.
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                                        6
defendant's entire house.    After obtaining a search warrant, officers found

multiple weapons and ammunition inside the house and in a detached shed.

They also found drug manufacturing equipment and paraphernalia.

      The main defense witness, defendant's girlfriend, testified during the

suppression hearing and offered a different version of the events. According to

defendant's girlfriend, she repeatedly told the officers that her twin daughters

were in the basement bedroom. Other than her children, defendant's girlfriend

stated she told the officers at least six times that there was no one else in the

house. She also testified that she removed the children from the basement with

no involvement from the police.

      At the conclusion of the testimony, the judge denied defendant's

suppression motion, finding the testimony of Detective Cole credible and the

protective sweep was "limited in duration, cursory in nature and confined to

areas where potential threats to the safety of officers on scene might be located."

The judge determined the protective sweep of defendant's home, incident to

defendant's lawful arrest, was valid to protect the safety of the police officers

and others.

      The judge further concluded the items observed during the protective

sweep were in plain view and immediately apparent to be evidence of a crime


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                                        7
or contraband, constituting another exception to the warrant requirement.

According to the judge, the police were lawfully in the basement area because

the officers heard crying coming from that section of the house.

      On appeal, defendant raises the following arguments:

            POINT I

            THE COURT COMMITTED AN ERROR OF LAW IN
            DENYING DEFENDANT'S MOTION TO SUPPRESS
            THE EVIDENCE RECOVERED INCIDENT TO HIS
            ARREST BECAUSE THE PROTECTIVE SWEEP IN
            THIS CASE WAS NOTHING MORE THAN AN
            UNCONSTITUTIONAL WARRANTLESS SEARCH.

                  A. Officers did not restrict their sweep to the
            spaces immediately adjoining the place of arrest from
            which an attack might be launched and lacked a
            reasonable articulable suspicion that the area to be
            swept could be harboring an individual posing danger.

                   B. Officers created the danger that became the
            basis for the protective sweep.

            POINT II

            THE EVIDENCE OBTAINED FROM THE
            DEFENDANT'S RESIDENCE WAS REQUIRED TO
            BE SUPPRESSED AS "FRUIT OF THE POISONOUS
            TREE."

            POINT III

            THE EMERGENCY AID EXCEPTION IS NOT A
            JUSTIFICATION FOR THE WARRANTLESS


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                                       8
              ENTRY AND SWEEP OF THE DEFENDANT'S
              RESIDENCE.

      Our review of a trial court's denial of a motion to suppress is limited. State

v. Handy,  206 N.J. 39, 44-45 (2011). "[A]n appellate court reviewing a motion

to suppress 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. Rockford,  213 N.J. 424, 440 (2013) (alteration in original)

(quoting State v. Robinson,  200 N.J. 1, 15 (2009)). Further, "[a]n appellate court

'should give deference to those findings of the trial judge which 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. Elders,

 192 N.J. 224, 244 (2007) (quoting State v. Johnson,  42 N.J. 146, 161 (1964)).

However, issues of law are reviewed de novo. State v. Gandhi,  201 N.J. 161,

176 (2010).

      "Both the United States Constitution and the New Jersey Constitution

guarantee an individual's right to be secure against unreasonable searches or

seizures." State v. Minitee,  210 N.J. 307, 318 (2012). Searches and seizures

conducted without a warrant, "particularly in a home, are presumptively

unreasonable." State v. Edmonds,  211 N.J. 117, 129 (2012) (quoting State v.

Bolte,  115 N.J. 579, 585 (1989)). The State has the burden of proving by a

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                                         9
preponderance of the evidence that such searches and seizures are "justified by

one of the 'well-delineated exceptions' to the warrant requirement." State v.

Shaw,  213 N.J. 398, 409 (2012) (quoting State v. Frankel,  179 N.J. 586, 598

(2004)).

      An arrest warrant provides officers "limited authority to enter a dwelling

in which the suspect lives" to make the arrest. State v. Cleveland,  371 N.J.

Super. 286, 294 (App. Div. 2004) (quoting Payton v. New York,  445 U.S. 573,

603 (1980)). Police "have the right to execute an arrest warrant on a defendant

at his or her home, and they may enter the home to search for the defendant

when there is probable cause to believe that he or she is there." State v. Jones,

 143 N.J. 4, 13 (1995). In accordance with Rule 3:3-3(c), an arrest warrant is

deemed executed upon the arrest of the suspect.

      The protective-sweep doctrine, one of the recognized exceptions to the

search warrant requirement, permits "a quick and limited search of [the]

premises, incident to an arrest and conducted to protect the safety of police

officers or others." State v. Cope,  224 N.J. 530, 546 (2016). A protective sweep

"is narrowly confined to a cursory visual inspection of those places in which a

person may be hiding." State v. Davila,  203 N.J. 97, 113 (2010). "A protective

sweep may only occur when (1) police officers are lawfully within private


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                                      10
premises for a legitimate purpose, which may include consent to enter; and (2)

the officers on the scene have a reasonable articulable suspicion that th e area to

be swept harbors an individual posing a danger." Id. at 102. Caution must be

taken to avoid invoking the protective sweep doctrine to justify an

unconstitutional warrantless search.

      Defendant argued the officers unlawfully conducted a protective sweep

and therefore any contraband discovered must be suppressed. We agree that the

facts adduced by the judge based on the testimony and evidence at the

suppression hearing do not support the protective sweep exclusion to the search

warrant requirement.

      Here, law enforcement was not lawfully within defendant's home when

they heard crying inside the residence. Defendant was arrested outside the

residence and remained outside his home while the officers waited for a vehicle

to take him to the police station. Law enforcement lost any lawful status on

defendant's property after defendant was arrested, handcuffed, and seated on the

front steps outside his home. Simply because law enforcement remained on the

front steps of the home waiting for an appropriate transport vehicle did not

justify the protective sweep exception to the search warrant requirement.




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                                       11
      However, based on the facts established during the suppression hearing,

the officers' entry into defendant's home was valid under the State's alternative

argument in opposition to defendant's motion to suppress. The State argued the

emergency-aid exception to the search warrant requirement was satisfied when

the officers heard crying coming from the basement of the home. Because the

judge determined the protective sweep doctrine justified the warrantless entry

and search of defendant's home, the judge did not address the State's alternative

argument.

      When exigent circumstances are present, "[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." State v.

Vargas,  213 N.J. 301, 323 (2013). The emergency-aid doctrine "is derived from

the commonsense understanding that exigent circumstances may require public

safety officials, such as the police, . . . to enter a dwelling without a warrant for

the purpose of protecting or preserving life, or preventing serious injury." State

v. Hathaway,  222 N.J. 453, 469 (2015) (emphasis omitted) (quoting Frankel,

 179 N.J. at 598). Under the emergency-aid exception, the State must show "(1)

the officer had an objectively reasonable basis to believe that an emergency

require[d] that he [or she] provide immediate assistance to protect or preserve


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                                        12
life, or to prevent serious injury and (2) there was a reasonable nexus between

the emergency and the area or places to be searched.'" Id. at 470 (first alteration

in original) (quoting Edmonds,  211 N.J. at 132).

      "The emergency-aid doctrine, particularly when applied to the entry of a

home, must be 'limited to the reasons and objectives that prompted' the need for

immediate action." Edmonds,  211 N.J. at 134 (quoting Frankel,  179 N.J. at 599).

"If, however, contraband is 'observed in plain view by a public safety official

who is lawfully on the premises and is not exceeding the scope of the search,'

that evidence will be admissible." Hathaway,  222 N.J. at 470 (quoting Frankel,

 179 N.J. at 599-600).

      Here, Detective Cole heard crying coming from the basement of

defendant's home as the detective waited for defendant to be transported to the

police station. Based on the crying sound, the officers had "an objectively

reasonable basis to believe that an emergency require[d] . . . immediate

assistance." Edmonds,  211 N.J. at 132. Detective Cole testified he had "an

obligation to verify . . . why the crying's occurring." The officers were unsure

whether the crying was from someone who was injured or simply indicative of

another person inside defendant's house. According to Detective Cole, based on

defendant's known criminal history and convictions for weapons offenses, it was


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                                       13
possible the crying sound came from an injured person present in the home who

required immediate emergency assistance.

      Moreover, there was a nexus between the perceived emergency based on

the crying sounds and the places searched in the basement. Once the officers

located the two girls in the basement bedroom, the officers had a reasonable

suspicion that there may have been other individuals in the basement who

needed emergency aid. Except defendant's girlfriend, whose testimony the

judge did not find credible, the people who exited the house refused to tell the

officers whether any other individuals remained in the home. Without that

information, it was possible there were additional people in the basement who

cried out, compelling the officers to enter the home under the emergency-aid

doctrine.

      Upon entering defendant's home under the emergency-aid exception to the

warrant requirement, the officers discovered facially illicit narcotics and related

paraphernalia in plain view in the basement of defendant's home. To apply the

plain view exception, the State must demonstrate the following: "(1) the officer

[was] lawfully in the viewing area when making the observation" and (2) it was




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                                       14
immediately apparent that the items were evidence of a crime, contraband, or

otherwise subject to seizure. State v. Gonzales,  227 N.J. 77, 91 (2016).4

      Because law enforcement discovered the evidence in plain view while

performing a valid search under the emergency-aid exception, denial of

defendant's motion to suppress the seized evidence was proper.

      Affirmed.




4
  According to the record, after defendant exited the house, he was taken into
custody, searched, and handcuffed. The officers did not transport defendant to
police headquarters after his arrest, indicating a need to wait for a "transport
vehicle." There is no evidence in the record explaining the reason for this
procedure. However, under these circumstances, this decision is not legally
consequential. As our Supreme Court made clear in Gonzales, "[a]n objectively
reasonable search or seizure is constitutional despite an officer's questionable
motives[.]" Gonzales,  227 N.J. at 104 (emphasis added).
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                                      15