On certification to the Superior Court, Appellate Division, whose opinion is reported at 227 N.J. Super. 593 (1988).
For affirmance -- Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. The opinion of the Court was delivered by Stein, J. Handler, J., concurs in the judgment.
In this case, as in State v. Hutchins, also decided today, 116 N.J. 457 (1989), we consider the legality of a warrantless entry into a home pursuant to an informant's tip of suspected drug activity. The trial court denied defendant's motion to suppress a portion of the evidence obtained by the police following entry into the house, relying on the "plain view" exception to the warrant requirement, but granted defendant's motion to suppress other evidence subsequently discovered by the police. The Appellate Division reversed, holding that all evidence obtained in the course of the arrest and search should have been suppressed because the State failed to justify the warrantless entry into the home. We granted certification, 114 N.J. 475 (1989), and now affirm.
On February 1, 1984, at approximately 10:45 a.m., Patrolman Patrick Da'Elia of the Newark Police Department received a telephone call from an informant. Officer Da'Elia, an eighteen-year veteran of the Newark Police Department who had participated in "hundreds" of narcotics arrests, testified at the suppression hearing that his prior dealings with this informant had proven him to be "very" reliable. The informant told Da'Elia that he had information about a person dealing in narcotics and
wanted to meet with police officers. Da'Elia and another officer met with the informant at approximately 11:00 a.m. The informant told Da'Elia that he had recently left John Lewis' apartment at 595 North Sixth Street. He said that he had observed narcotics on the kitchen table and other paraphernalia in the apartment, that several other people were present in the apartment, that one had a gun, and that they were packaging drugs and getting ready to distribute them. The informant told the officers that they should go to defendant's apartment as soon as possible, because the occupants were preparing to leave.
Da'Elia notified his sergeant of the information he had received. The sergeant told him to go to Lewis' apartment immediately and attempt to gain entry. At approximately 11:30 a.m., Da'Elia met with seven other patrol officers in the area of Seventh Street and Clinton Avenue, and then proceeded to defendant's apartment, arriving sometime between 12:00 noon and 12:30 p.m. Some of the officers entered the apartment building while others, including Da'Elia, remained outside near the rear of the building.
Patrolman Anthony Pilino knocked on the door of the apartment. A male voice answered, "who is it?" In response, Pilino mumbled "it's Tony." Defendant opened the door, observed Pilino in uniform, and attempted to close the door. Pilino stuck his foot in the door to keep it open. With the door partially open Pilino observed, on the kitchen table, a glass, a gold razor blade, and a clear bottle containing a white powder believed by the officer to be narcotics. Although the State asserts that it is "unclear from the testimony whether Officer Pilino made these observations before or after defendant attempted to close the door," defendant contends that the officer made these observations only after defendant attempted to close the door. Officer Pilino's testimony concerning his observation of the items on the kitchen table was as follows:
[A]t that point, the door opened * * * and there was a male there, and at that point he saw that -- well, I had a uniform on and the male behind the door tried
to close the door and I had my foot in the door, I kept it open, and at that point I observed on the kitchen table a glass, a clear bottle which contained a white powder.
Pilino then entered the apartment. Defendant, the only occupant, was arrested. The officers searched the apartment, consisting of a 9' X 12' kitchen and a slightly smaller bedroom. In addition to the items seized from the kitchen table, pieces of tin foil, a plastic bag containing marijuana cigarettes, and a book with narcotics residue on it were found by the officers. Other assorted narcotics and narcotics paraphernalia were located and seized from the kitchen and defendant's bedroom: a bottle of methadone in the refrigerator; hypodermic needles and syringes on top of the refrigerator; a paper bag in a cardboard box in the kitchen with glassine envelopes; silver spoon with residue; glassine envelope with white powder; and one tin with cocaine. The officers also discovered and seized a loaded .25 caliber handgun from underneath the pillow of defendant's bed, as well as eight rounds of .22 caliber ammunition in a drawer under the bed.
Defendant was charged with possession of cocaine, N.J.S.A. 24:21-20 (Count I); possession of cocaine with intent to distribute, N.J.S.A. 24:21-19a(1) (Count II); possession of valium and methadone, N.J.S.A. 24:21-20 (Count III); and possession of a firearm without a purchaser's permit, N.J.S.A. 2C:39-10 (Count IV). A Newark municipal complaint was also filed against defendant, charging him with possession of less than twenty-five grams of marijuana, N.J.S.A. 24:21-20a(4) (Count I); unlawful possession of a hypodermic needle and syringe, N.J.S.A. 24:21-51c (Count II); and possession of narcotics paraphernalia, N.J.S.A. 24:21-47 (Count III).
On defendant's motion to suppress the evidence found in the apartment, the trial court found that the "totality of the circumstances" justified the officers' actions in attempting to enter defendant's ...