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State v. Lewis

Decided: September 23, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN LEWIS, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

King, Gruccio and D'Annunzio. The opinion of the court was delivered by King, P.J.A.D.

King

The issue in this case is whether the exigent circumstance that evidence of drug dealing might be removed from an apartment justified an entry without a search warrant. This has become a troublesome area of search and seizure law in which courts and judges have disagreed.

As LaFave states, "the question is whether the experience to date merits the conclusion that in due course the exception [to the Warrant Clause] will be defined in a way which is understandable by police and which will not result in it being an exception which in effect swallows up the general rule that a warrant is needed to search premises." LaFave, Search and Seizure ยง 6.5(b) at 657 (1987). In this case we conclude that the State has not satisfied its "heavy burden" of proof sufficiently to justify entry into the dwelling area without prior judicial approval.

[T]he police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Indeed, the Court has recognized only a few such emergency conditions, see, e.g., United States v. Santana, 427 U.S. 38, 42-43 [96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300] (1976) (hot pursuit of a fleeing felon); Warden v. Hayden, 387 U.S. 294, 298-99 [87 S. Ct. 1642, 1645-46, 18 L. Ed. 2d 782] (1967) (same); Schmerber v. California, 384 U.S. 757, 770-71 [86 S. Ct. 1826, 1835-36, 16 L. Ed. 2d 908] (1966) (destruction of evidence); Michigan v. Tyler, 436 U.S. 499, 509 [98 S. Ct. 1942, 1950, 56 L. Ed. 2d 486] (1978) (ongoing fire), and has actually applied only the "hot pursuit" doctrine to arrests in the home, see Santana. . . ." [ Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S. Ct. 2091, 2097-98, 80 L. Ed. 2d 732 (1984).]

See also Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970). As in State v. Kirk, 202 N.J. Super. 28, 34 (App.Div.1985), we wish to make it clear that our decision is

rendered on State constitutional grounds exclusively.*fn1

Defendant appeals from the denial of his motion to suppress evidence which led to his conditional guilty plea, see R. 3:5-7(d), to the charge of possession of cocaine and to three lesser, non-indictable charges: possession of marijuana under 25 grams, possession of a hypodermic needle, and possession of other narcotics paraphernalia. Defendant was sentenced on January 24, 1986 to a two-year term of probation. A fine of $100 also was imposed.

These are the facts developed from the testimony of the two Newark police officers, Da'Elia and Pilino, at the suppression hearing. At about 10:45 a.m. on February 1, 1984, a Wednesday, an informant that Officer Da'Elia said had proven "very" reliable in the past called the Newark Police Department. The informant said that he wanted to speak to the police about a narcotics dealer. Da'Elia and another officer met with the

informant at Seventh Avenue and Clifton Avenue in the City of Newark at about 11 a.m. The informant told the officers that a short time before he had been in a small apartment (# 7) at 595 North Sixth Street where he had seen several persons packaging narcotics for imminent distribution. The informant said one person had a gun and the police should get there as soon as possible because the people were getting ready to leave. The only testimony presented about the informant at the suppression hearing was that he had been "very" reliable in the past.

The officers reported this information to their desk sergeant who told them to go right over to Lewis' apartment and attempt to gain entry. The officers went to the defendant's apartment which was one mile away from where they had talked to the informant. There they met with other officers who had been dispatched to participate in the raid. Eight officers in all were at the scene when the raid took place at noon.

Two officers stayed outside the building to cover escape routes. Officer Pilino went inside with five others. He knocked on the door of apartment ...


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