Defendant moves to suppress evidence seized in his apartment without a search warrant after a police surveillance from his fire escape. The burden rests on the State to prove the legality of a warrantless search by a preponderance of the evidence. State v. Whittington , 142 N.J. Super. 45, 51-52 (App.Div.1976).
Detective Kenneth Campion and Sergeant William Forrester of the Jersey City Narcotics Squad testified that on September 11, 1978 at 11:00 a.m. they were on patrol with Detective
Michael Kelly. A radio call from police headquarters advised them that defendant was believed to be in the process of bagging narcotics in his apartment at 277 Harrison Avenue. The original source of the information was not identified. Upon proceeding to the apartment house they learned from a tenant that defendant occupied Apt. B-4 on the second floor.
The officers heard nothing at defendant's door, so Forrester and Campion went up to the roof. They then climbed down the fire escape stairs to see if they could peer into defendant's apartment. Nothing incriminating was visible through a window directly facing defendant's fire escape landing. With Forrester holding him for safety reasons, Campion leaned over the fire escape railing in order to look into a second window eight feet from the fire escape. Defendant was observed sitting on a couch in his apartment with narcotics paraphernalia in front of him. Testimony of the officers conflicted as to whether the window was partially covered with a shade.
The officers returned to defendant's apartment door with Detective Kelly, who had been stationed on the roof. As they did so, defendant came out of his apartment. Campion "grabbed" defendant, pushing him against a wall, because he feared defendant was armed. The officers told defendant that they could obtain a search warrant because of what Campion had observed from the fire escape. Defendant, according to the officers, then gave them permission to enter the premises. Campion testified that defendant signed a form consenting to the search during the actual search, while Forrester stated that it was signed later at police headquarters. A .32 caliber revolver, three manila envelopes of marijuana, a silver packet of cocaine, 39 glassine bags of heroin, two boxes containing glassine bags and $4,200 in cash were seized.
Defendant testified to a different version of the facts. He stated that the shades and draperies on all of his windows were closed. Defendant denied that he ever consented to the search
and asserted that he later signed the consent form at the station house without knowing what it was. He had come out of his apartment to check the fuse box because his lights had gone out. It was then that the officers accosted him in the hallway and forced him back inside at gun point.
The State's position is that the police action was proper under the "plain view" doctrine or lawful consent to search. Defendant challenges the applicability of either theory.
The court first turns to the issue of plain view. Objects falling within the plain view of an officer who is rightfully in a position to have that view are subject to seizure. Harris v. United States , 390 U.S. 234, 236, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); State v. DiRienzo , 53 N.J. 360, 385 (1969). Additionally, only "exigent circumstances" endow legality to a warrantless intrusion into a constitutionally protected area after a plain view observation. State v. O'Herron , 153 N.J. Super. 570, 576 (App.Div.1977), cert. den. 439 U.S. 1032, 99 S. Ct. 637, 58 L. Ed. 2d 695 (1978). The initial question to be resolved is whether the detective had a right to be where he was on defendant's fire escape. If a plain view results from an unlawful intrusion into a constitutionally protected zone, evidence subsequently seized must be suppressed. Id. at 574.
One measure of the scope of constitutionally protected areas outside a person's home is the so-called "curtilage" doctrine. Those areas immediately adjacent to a dwelling are generally protected from warrantless searches. See State v. Vargas , 160 N.J. Super. 235 (Law Div.1978). No reported New Jersey cases have considered whether a fire escape constitutes curtilage of an apartment adjacent to it. New York cases that have considered the question are split. Compare People v. Terrell , 53 Misc. 2d 32, 277 N.Y.S. 2d 926 (Sup.Ct.1967), aff'd 30 App.Div. 2d 644, 291 N.Y.S. 2d 1002 (App.Div.1968) and People v. Friola , 11 N.Y. 2d ...