On appeal from the Superior Court, Law Division, Camden County.
Lynch, Crane and Horn. The opinion of the court was delivered by Lynch, P.J.A.D. (retired, temporarily assigned).
Leave having been granted, the State appeals from an order granting defendant's motion to suppress certain evidence seized when the police went to defendant's home to execute a warrant for his arrest on a motor vehicle violation.
On August 23, 1977 two officers of the Collingswood Police Department, Woshnak and Laub, saw defendant's vehicle parked outside his house. The officers apparently knew there was an outstanding warrant for defendant's arrest for nonpayment of a fine on a motor vehicle charge. The officers did not have the warrant in hand. Officer Laub knocked on defendant's door while Officer Woshnak stood in the driveway. Defendant answered. There was a screen door between defendant and Laub who was standing at the doorway. Laub informed defendant that there was a warrant for his arrest due to nonpayment of the traffic fine but did not demand admittance. See State v. Fair , 45 N.J. 77 (1965), and State v. Schelle , 126 N.J. Super. 596 (App. Div. 1974). Seiss told Laub to wait a minute while he went to get his wallet so that he could go with the officers and pay the fine. The screen door was still closed when defendant went to his dining room to get the wallet.
When defendant was in the dining room he noticed that both officers had followed him there and were standing behind him. Officer Woshnak testified that once in the dining room he saw two pipes, one with burnt marijuana residue, and he could smell marijuana smoke. The officers searched the dining room. They then went to the living room where
several guests were sitting. The officers observed a "roach"*fn1 end in an ashtray and smelled marijuana smoke. The officers then searched the kitchen, opening every drawer and cabinet. No contraband was found. Officer Laub noticed that the cellar door was ajar. He then went into the basement where he found a Mr. Burke at the far end of the basement. The officer then discovered 8 I/2 pounds of marijuana in nine plastic bags which had been packed into a garbage can under the stairs.
The judge below suppressed the marijuana because he held that the initial entry into defendant's house was illegal. He rejected the State's arguments that defendant acquiesced in permitting the officers to enter the house. The judge expressly found that the State's claim that the officers' entrance into defendant's house was to make sure he did not escape was "not a realistic approach." There was no evidence that defendant was attempting to escape or that the officers were apprehensive that he might escape. Nor were they concerned for their personal safety.
The evidence involved here was seized in two different parts of defendant's home: (1) on the first floor (pipes, "roach"), and (2) in the basement (8 I/2 pounds of marijuana). Each area should be considered separately because different principles of search and seizure law are relevant to each respective area.
The search of the first floor.*fn2
It was well established that a warrantless search is in itself invalid unless it falls within a specific exception to
the warrant requirement. Katz v. United States , 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. DeLorenzo , 166 N.J. Super. 483 (App. Div. 1979). And it is the State's burden to establish that its action comes within an exception. United States v. Jeffers , 342 U.S. 48, 51, 72 S. Ct. 93, 96 L. Ed. 59 (1951); State v. Sims , 75 N.J. 337, 351-352 (1978); State v. King , 84 N.J. Super. 297, 300 (App. Div. 1964), rev'd on other grounds 44 N.J. 346 (1965); Chimel v. California , 395 U.S. 752, 762, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
The evidence seized on the first floor was in "plain view" of the officers as they went into defendant's home. Thus, if the officers had a right to enter the home, there would be no impropriety in seizing the evidence on the first floor. But the question is whether indeed the officers had a right to be in the dining room and living room where they seized the pipes and "roach."
Ordinarily the police may enter a home to effect an arrest. But this rule, too, as in all situations of search and seizure, is to be measured by the rule of reasonableness. That concept has recently been refined to a dual standard of (1) whether the police acted in good faith in making a search incident to a lawful arrest and (2) whether there existed a "substantial police need" for the action they have taken. State v. Slockbower , 79 N.J. 1 (1979); State v. Ercolano , 79 N.J. 25 (1979). In other words, if a search is unnecessary for the attainment of a lawful police objective, it is illegal. In Slockbower , while defendant was driving his wife's van he was arrested on an outstanding warrant for driving a motor vehicle while on the revoked list. The vehicle was impounded and immediately searched. The search turned up a pen gun and ammunition, and defendant was charged with and indicted for statutory criminal violations in that regard. Though his arrest on the outstanding warrant was clearly valid, the Supreme Court suppressed that evidence on the ground that the impoundment of the car
was unnecessary for any police purpose. As the court said in Slockbower:
The point to be made is that constitutional rights to privacy in vehicles and effects must be accorded respect by police as well as courts and cannot be subordinated to mere considerations of convenience to the police short of substantial necessities grounded in the public safety. The burden of establishing such necessity in any given case of claimed right to impound and inventory a car rests on the police. As aptly put in Chimel v. California , 395 U.S. 752, 764-765, 89 S. Ct. 2034, 2041, 23 L. Ed. 2d 685 (1969), the 'reasonableness' of a search is to be assayed on considerations 'relevant to Fourth Amendment interests,' not on 'a subjective view regarding the acceptability of certain sorts of police conduct.' Any contrary approach would create a temptation for police to use the unconnected temporary predicament of a motorist as a pretext for an investigatory search unauthorized by a warrant. [at 12; emphasis supplied]
See also, State v. Ercolano, supra , 79 N.J. at 33.
Just as there was no "substantial necessity" to impound the car in Slockbower , so here there was no "substantial necessity" to enter defendant's home in order to arrest him. Defendant was placed under arrest as the police stood outside the screen door. As we have said, the motion judge found that the State's contention that the entry into the house was for the purpose of making sure that defendant would not escape was not supported. And the officers had no reason to believe that he might escape. This was not a case where defendant was about to be arrested for a serious crime which might have motivated an attempt to escape. He was arrested for failing to pay a fine for a traffic violation. Compare, State v. Brown , 132 N.J. Super. 180 (App. Div. 1975). Nor were the ...