On appeal from Superior Court of New Jersey, Law Division, Essex County.
King and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
Pursuant to leave granted, the State appeals an order suppressing evidence seized from defendant and sought to be utilized in a prosecution under Essex County Indictment 3303-11-84, charging possession of heroin and possession with intent to distribute. The issue is whether an exigency created by police action can justify a warrantless search.
At the suppression hearing, Officer Lemon testified that a reliable informer known to Detective Thompson, his partner, informed Detective Thompson that a black male in a blue jogging suit was selling drugs at 118 11th Avenue, Newark. Lemon and Thompson proceeded to that address and knocked on the door. The door was opened by defendant, a black male in a blue jogging suit. According to Lemon, defendant's fist was clenched and Lemon could not see what defendant was holding. Lemon and Thompson were not in uniform. Lemon asked defendant if he had "anything." When defendant did not respond, Lemon announced that they were police officers. According to Lemon, defendant then fled into the house and began to run up a flight of stairs. The policemen entered the home, pursued defendant and apprehended him. After defendant was apprehended, the police found ten glassine envelopes of heroin in his right hand. No other contraband was found in the house.
Defendant's version differed from that of Officer Lemon. Defendant denied that he fled. He testified that the police, after asking for something, walked into the house as they announced that they were police officers. The trial judge did not resolve the credibility issue. He suppressed the evidence on the ground that no exigency existed sufficient to excuse the requirement of a warrant. For purposes of this appeal we accept Officer Lemon's version and we affirm.
On appeal, the State contends that the informer's tip, consisting of a conclusory statement that drugs were being distributed at the residence in question, was insufficient to establish probable cause and, therefore, could not be the sole basis for the
issuance of a warrant. The State further contends, and we agree, that the police had the right to investigate the tip by attempting to purchase drugs at the specified address. According to the State, defendant's blue jogging suit and his flight when Lemon announced that he was a police officer ripened the informant's tip into probable cause. The exigency, claims the State, was the potential loss or destruction of evidence.
Warrantless searches are prima facie invalid and the burden is on the State to establish that the search falls within one of the exceptions which will justify a search without a warrant. State v. Welsh, 84 N.J. 346, 352 (1980), aff'g 167 N.J. Super. 233 (App.Div.1979); State v. Patino, 83 N.J. 1 (1980). In the present case the police entered a private residence. The protection of the home from government intrusion is at "the very core" of the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 682, 5 L. Ed. 2d 734 (1961) ("at the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion"); Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). "In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. at 590, 100 S. Ct. at 1382. Accord Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984). "[A] principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment. . . ." Id. at 748, 104 S. Ct. at 2097.
As previously indicated, the State relies on the potential destruction of evidence as the exigent circumstance justifying the warrantless entry of the residence. Once the police identified themselves the destruction of evidence was highly probable. But that exigency was the result of voluntary action taken by the police. It was an exigency created by the police. See State v. Welsh, supra; State v. Williams, 168 N.J. Super. 352
(App.Div.1979). But cf. State v. Meighan, 173 N.J. Super. 440 (App.Div.1980), certif. den. 85 N.J. 122 (1980) (warrantless search of defendant's wife not the result of police-created exigency).
In Welsh the State attempted to justify a post-arrest search behind the dashboard of defendant's vehicle on the ground that the police had decided to allow defendant to drive his vehicle to the police station. The trial court denied defendant's motion to suppress. In a decision affirmed by the Supreme Court, we reversed, in part, on the ...