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Saturday, December 22, 2012


« Citation



DOCKET NO. A-0024-11T2
October 16, 2012

Argued: September 12, 2012 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-06-0978.

Michael B. Jones, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Jones, on the brief).

Caitlin J. Sidley, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor and Ms. Sidley, on the brief).


Following denial of his suppression motion, defendant James Height pled guilty to third-degree possession of CDS (Xanax), N.J.S.A.2C:35-10a(1). On May 6, 2011, defendant was sentenced to five years of probation and accepted into Drug Court. Defendant appeals, challenging denial of his suppression motion. We reverse and remand.
Neptune Township Patrolmen Leslie Borges and Michael Adam, and Regina Jackson, a dispatcher, testified at the suppression hearing. Jackson testified that at 12:26 p.m. on January 19, 2010, an anonymous caller contacted the police and expressed the belief that "subjects" at a specified address in Neptune were "smoking crack cocaine and there is a child there." The officers were promptly dispatched to investigate the call. Ptl. Borges testified he interpreted the call as "subject smoking crack in apartment with a juvenile present." The officers deduced that the proper location was actually a garage behind that house, which had been converted into a two-floor apartment.
Ptl. Borges knocked on the door. Less than a minute later, Ptl. Adam saw a curtain pulled back, a black woman peer out, and immediately draw the curtain. He informed Ptl. Borges of his observation. The other officer continued to knock and, within a few seconds, a young black girl who appeared to be nine or ten years old answered the door. Ptl. Borges asked if her parents were home, and she responded that her mother was home. He then asked her to have her mother come to the door. From his vantage point, Ptl. Borges observed a kitchen area immediately inside the front door, behind which was a door to what appeared to be a bedroom. To the left, the officer could see a living room area and another door behind that which appeared to be another bedroom.
Ptl. Borges observed an older white female by the door to the rear bedroom. It appeared to him she was speaking with someone. She came to the door and identified herself as the babysitter. Ptl. Borges asked her if anyone else was in the apartment, to which she responded "no." Both officers testified that based on their observations and the information they had received from the young girl, they believed the babysitter was lying about whether there were other occupants in the apartment. Ptl. Borges believed the tip was corroborated by the presence of the girl, multiple adults in the apartment, and the babysitter being deceitful. He expressed a concern for his safety and that of the girl because he was unaware of the number of people in the apartment and his "training and experience" had taught him that weapons may be involved with narcotics-related offenses.
Ptl. Borges asked the babysitter to have everybody else in the apartment come out, to which she again asserted that no one else was there. He then saw the door to the back bedroom move. He entered the apartment, drew his firearm, and directed the girl to go into the other bedroom, which appeared to be an unoccupied child's bedroom, because he believed she would be safer there. Officer Adam entered the apartment behind him and stayed with the babysitter for officer safety.
Ptl. Borges identified himself as a police officer and directed whoever was in the back bedroom to come out. A man, later identified as defendant, peeked out from behind the door, and the officer ordered him to exit the bedroom and show his hands. Defendant did so, and the officer had him sit in a chair in the living room area with Ptl. Adam and the babysitter.
Ptl. Borges then entered the back bedroom to see if anyone was there. He observed a closed closet, opened it, and found a black female standing inside who he later identified as the child's mother. He directed her to join the others in the living room with Ptl. Adams.
He then looked under the bed, a "common hiding place," to see if there were any other occupants. He observed a cigarette burning in an ashtray. Concerned it could start a fire, the officer pulled the ashtray out from under the bed. He observed ashes, cigarette butts, pieces of burnt "Chore Boy" copper mesh, commonly used as a filter in homemade crack pipes, and a torn piece of plastic.
The officer returned to the living room and asked the child's mother why she had been hiding in the closet. She said she was frightened when she saw police so she went and hid there. Ptl. Borges told her about the paraphernalia he had found in the ashtray and advised her about the tip. He further told her he believed there was more drug paraphernalia and possibly narcotics in the apartment, and asked if she would show him if there was anything else there. She assented, led him to the back bedroom, and pointed out a small box under the bed. Inside the box he found a glass tube pipe, a plastic bottle made into a pipe, a metal pushrod, and a spoon.
All three adults were formally arrested, defendant was searched, and the officers found in his possession three Xanax tablets for which he did not have a prescription. Defendant was charged with possession of CDS for the Xanax, and a disorderly persons offense for use or possession of the paraphernalia found in the smoking ashtray. Officer Borges waited for an adult family friend to pick up the young girl.
The judge issued an order and written opinion on October 20, 2010, denying defendant's motion to suppress. He found the police lawfully entered the apartment consistent with the community caretaking doctrine as articulated in State v. Bogan, 200 N.J. 61 (2009), stating:
The officers' conduct in this case was reasonable. They received a tip that crack cocaine was being smoked in the presence of a juvenile. They went to the home, corroborated the presence of the juvenile, and felt that the child may be in danger, since the babysitter in the home was obviously lying to the officers about the presence of other adults in the home. The hiding in the closet, the hiding in the bedroom and the quick peeking out from the window all provide the circumstances which justify the police actions here.

The judge also found the plain view exception applied to the paraphernalia Ptl. Borges found under the bed, and defendant was validly searched incident to a lawful arrest.
Defendant subsequently pled guilty and was sentenced as previously discussed. On appeal, defendant argues: (1) the officers had no legally acceptable reason to enter the apartment without a warrant and without permission; (2) the search following the discovery of the "Chore Boy" copper mesh was not consented to, and, lacking a warrant or exigent circumstances, the evidence recovered was not admissible; and (3) defendant should not have been arrested because the offense amount to a disorderly persons offense not committed in the officers' presence.
The State bears the burden of proving by a preponderance of the evidence the validity of a warrantless search. State v. Edmonds211 N.J. 117, 128 (2012). When reviewing the decision of a motion judge on a motion to suppress, we defer to the judge's findings "which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Elders192 N.J. 224, 244 (2007) (quoting State v. Johnson42 N.J. 146, 161 (1964)). An appellate court "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. Mann203 N.J. 328, 336 (2010) (quoting Elderssupra, 192 N.J. at 243). Despite that deference, however, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then the appellate court should review 'the record as if it were deciding the matter at inception and make its own findings and conclusions." Mannsupra, 203 N.J. at 337 (quoting Johnsonsupra, 42 N.J. at 162). Furthermore, "a reviewing court owes no deference to the trial court in deciding matters of law." Mannsupra, 203 N.J. at 337 (citing State v. Gandhi201 N.J. 161, 176 (2010)). For the reasons that follow, we are satisfied the motion judge was clearly mistaken in concluding the facts in evidence support a finding that the officers' actions were justified under the community caretaking exception to the warrant requirement.
In Edmondssupra, 211 N.J. at 121, the Supreme Court recently upheld a trial court's determination that a warrantless search of a home was objectively unreasonable and could not be justified by the community caretaking exception to the constitutional warrant requirement. There, police went to Kamilah Richardson's second-floor apartment after receiving a call from her purported brother, identifying himself as "John Smith," expressing the belief that she was being beaten up by her boyfriend and he had a gun. Id. at 122-23. Four officers were met by Richardson at the downstairs door, and she repeatedly told them there was "no problem" and only her eleven-year-old son was there. Id. at 123. Richardson refused to consent to the police entering her apartment, and when the officers insisted they needed to enter and ascertain whether there were other occupants there "due to the nature of the call," she asked to first speak with her son. Ibid. The officers declined her request and directed the boy to unlock the door. Ibid.
One of the officers stepped into the apartment and observed the boy in the living room and a TV playing in the room to his left. Id. at 124. With his gun drawn, the officer entered the room and saw defendant sitting in a chair in front of the TV with a mattress on the floor near him. Ibid. He brought defendant to another room and patted him down for weapons, but none were found. Ibid. He left defendant there with police protection and searched the "immediate area" where defendant had been watching TV, discovering a gun under a pillow lying on the mattress, which defendant acknowledged was his. Ibid. Defendant was arrested for unlawful possession of the weapon. Ibid. Richardson advised police that her former boyfriend, not defendant, had threatened to kill her and her son the previous day, and insisted that defendant had not engaged in any act of domestic violence. Ibid.
We had remanded the case to the trial court for analysis under Bogansupra, which was decided during the pendency of the appeal. The trial judge granted defendant's suppression motion, finding Bogan factually inapposite, as did we. Edmondssupra, 211 N.J. at 126-27. In explaining the community caretaking exception to the warrant requirement, noting the Court's "narrow application of the doctrine in Bogan," Edmondssupra, 211 N.J. at 144, and concluding the facts of Bogan were "in stark contrast" to the case before it, Justice Albin stated:
In Bogan, we specifically acknowledged that "[t]he community caretaking role of the police also extends to protecting the welfare of children." 200 N.J. at 75. In that case, police officers were taken to an apartment by a fourteen-year-old girl who claimed she had been sexually molested there. Id. at 78. When the police rang the doorbell to the second-floor apartment, a boy, appearing to be twelve years old and wearing pajamas, answered the door. Ibid. On a day when he would have been expected to be in school, the young boy told the police that he was home alone, even though a male voice could be heard in the background. Ibid. The boy "appeared nervous and uneasy" and gave inconsistent answers to simple questions concerning the whereabouts of his mother. Ibid. When the telephone rang inside the apartment's kitchen, the boy picked up the receiver and told the officers it was his father. Ibid. A police sergeant asked if he could speak with the boy's parent. Ibid. The boy agreed, and only then did the sergeant step into the apartment to take the telephone, while the other officers remained in the hallway.Ibid. From the sergeant's vantage point in the kitchen, he saw the defendant – who fit the description of the alleged sexual predator – in another room. Id. at 79. The defendant was arrested. Ibid.

We found that the "carefully modulated response of the officers, and of [the sergeant] in particular," was "objectively reasonable." Id. at 80. Importantly, Bogan did not involve the search for evidence or a weapon in a home. The police entered the apartment simply to speak with a parent by telephone to assure a child's safety and well-being. The entry for that limited purpose fell within "the well-accepted limits of the community caretaking exception to the warrant requirement." Ibid.

[Edmondssupra, 211 N.J. at 142.]
In contrast, as noted by the Court in Edmonds, police entered Richardson's apartment against her will in response to an unverified 9-1-1 call "to assure the safety of the young boy," found him "unharmed, without any visible injuries or signs of distress and no indication of a domestic disturbance inside the apartment," but detained and frisked the defendant. Id. at 121, 143. Having found there was "no objective evidence that the residence had been the scene of domestic violence or that [] Richardson or her son were endangered[,]" i.e., "[h]aving investigated and failed to corroborate the report of domestic violence," the Court concluded the "officers had fulfilled their community-caretaking function." Id. at 143. Commenting that "[t]he community-caretaking doctrine is an exception to the warrant requirement, not a roving commission to conduct a nonconsensusal search of a home in the absence of exigent circumstances[,]" the Court admonished that the officers had to apply for a warrant supported by probable cause if they then wished to search Robinson's apartment for a gun. Ibid.
Here, too, police responded to an anonymous tip. The caller offered no basis of knowledge whatsoever, and the tip could well have been a prank call. The call was reported by dispatch as someone smoking crack cocaine in an apartment with a child living there, which did not suggest an immediate life-threatening situation. The recorded tip was not that persons inside the residence were smoking crack cocaine with a juvenile present, as Ptl. Borges perceived the tip, and which was credited by the court without explanation. The tip was not corroborated by anything more than the presence of adults and a nine or ten-year-old girl in the apartment. The woman peering out the window and then having the girl answer the door may have seemed odd, but can hardly be described as threatening.
Ptl. Borges described the girl as appropriately dressed, apparently well nourished, and unafraid. The officer did not ask her if she was "okay" even though his "concern with receiving the tip was for the . . . child present." He did not smell the odor of burning crack, with which he was familiar, or any other drug. Nor did he observe any drugs, drug paraphernalia or any weapons laying around, or "[a]nything that could potentially harm the child." Ptl. Borges also did not "hear anyone screaming for help" or "any loud music that would indicate a party." In fact, he admitted that prior to entering the apartment, "nobody presented themselves in a way that physically presented a danger" to him. Moreover, an adult promptly came to the door and claimed responsibility for the child as her babysitter. Ptl. Borges acknowledged that the babysitter was not staggering or slurring her speech, and appeared to be appropriately dressed. Thus, once the officers found there was inadequate evidence to corroborate the 9-1-1 call and determined the child's safety was not at issue, they had fulfilled their community caretaking function. If the officers wished to search the apartment or occupants for drugs, they had to apply for a warrant supported by probable cause.
Nevertheless, based on his belief that the babysitter was lying about the presence of other occupants, his observation of the back bedroom door "move" after he directed other occupants to come forward, and his generalized concern that there might be adults present who could possibly have weapons, based on the drug tip, Ptl. Borges crossed the threshold and entered the apartment, uninvited, with his service revolver drawn. Moreover, though purportedly concerned with the safety of the child, Ptl. Borges did not have her wait outside with Ptl. Adams, but sent her into a bedroom that he did not check to determine if it was safe until much later.
We are satisfied there was no objectively reasonable basis for the police to enter the apartment under the community caretaking exception to the warrant requirement. The evidence obtained through that warrantless search must be suppressed.
eversed and remanded.

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