On appeal from the Superior Court, Appellate Division, whose opinion is reported at 226 N.J. Super. 454 (1988).
For reversal and remandment -- Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J.
In this case, as in State v. Lewis, also decided today, 116 N.J. 477 (1989), we consider the legality of a warrantless entry into a home following an informant's tip of suspected drug activity.
In the present case, police were told by an informant that a black male named Bob, dressed in blue, was selling heroin from a certain address in Newark. Two officers, in plainclothes, proceeded to the address to attempt an undercover drug buy. Defendant, a black male wearing a blue jogging suit, answered the door but did not respond to the officers' attempted solicitation of a sale of drugs. Observing that defendant's right fist was clenched in a manner suggesting possible concealment of narcotics, the officers identified themselves. At that point, according to one officer's testimony, defendant turned around and fled into the house. The police pursued defendant into the house, apprehending him and recovering ten glassine envelopes containing heroin from his right hand. According to defendant's testimony, he backed into the house, but the officers pursued him and, in effect, "planted" the heroin on him.
Without resolving the factual dispute between the officers and defendant, the trial court granted defendant's motion to suppress the narcotics primarily on the basis that the police should have obtained a search warrant before entering the house. The Appellate Division affirmed on the ground that the asserted exigency in this case, the potential destruction of
narcotics, was improperly created by the police and thus failed to support the warrantless entry under the "exigent circumstances" exception to the fourth-amendment warrant requirement. State v. Hutchins, 226 N.J. Super. 454 (1988). The Appellate Division reasoned that the suppression order was properly granted because the police created the "exigency," and the "exigency" was not an "unintended and collateral residual effect" of the officers' announcement that they were police officers. Id. at 461.
We conclude that although the exigent circumstance can properly be described as "police-created," it may have arisen as a result of reasonable police investigative conduct intended to generate evidence of criminal activity. In that context, the exigency of potential destruction of narcotics, if accompanied by probable cause, could support a warrantless entry into the premises. Thus, we reverse and remand the matter to the Law Division to resolve the disputed factual issues and determine whether the police officers had probable cause to arrest defendant and whether their warrantless entry was justified based on the existence of "exigent circumstances."
On April 4, 1984, at approximately 7:00 p.m., Detective Thompson of the Newark Police Department received information from an informant he had used previously that a black male named Bob "dressed in blue" was "dealing heroin" from 118 Eleventh Avenue, Newark. At about 8:00 p.m., Detective Thompson and his colleague Detective Lemon proceeded to this address to effect an undercover drug purchase. Detective Lemon was familiar with the house based on an arrest he had made there during the prior winter of a person engaged in narcotics distribution. Detective Lemon testified at the suppression hearing that it was normal police procedure to attempt an undercover purchase of narcotics in order to confirm an informant's tip that drug distribution was occurring at a specified
location. According to Lemon, "it would be very stupid to waste time to get a search warrant knowing he probably won't be there tomorrow. In this town we just basically get information, we go there and try to make an undercover buy."
When they arrived, Lemon knocked on the door, which was opened by a black male wearing a blue jogging suit, "fitting a description we received." Lemon testified that when defendant opened the door, he asked the defendant, "do you have anything?" Defendant did not respond. Lemon observed that defendant's right fist was clenched. Based on his experience and the information that Detective Thompson had received, Lemon suspected that defendant had contraband in his hand. He announced that he and Detective Thompson were police officers. Lemon testified that defendant then turned and ran into the corridor and up a flight of stairs. Detectives Lemon and Thompson pursued defendant into the house, where they apprehended him on the staircase. Detective Lemon recovered ten glassine envelopes, containing what was subsequently confirmed to be heroin, from defendant's clenched right hand. The police then checked the house for other occupants. Lemon testified that Willie Griffin, the person he had arrested there previously, was also present at the time of defendant's arrest.
Defendant's testimony disputed Lemon's account of the facts. Defendant testified that at approximately 6:00 p.m. on April 4, 1984, he went to visit his friend, William Griffin. At approximately 8:00 p.m., defendant responded to a knock at the door and saw a man dressed in civilian clothes. Defendant recalled that he "asked for something." When defendant did not respond within a few seconds, the caller entered the house and announced that he was a police officer. According to defendant, at this point he "backed up" into the house. Lemon then took defendant upstairs and searched him, finding sixty-four dollars on his person. Detective Thompson also entered the house and searched all other rooms. According to defendant, Thompson later arrested defendant upstairs, showed him the glassine bags, and stated, "[t]his is yours."
Defendant was charged with possession of Controlled Dangerous Substance (C.D.S.), N.J.S.A. 24:21-20, and possession of C.D.S. with intent to distribute, N.J.S.A. 24:21-19(a)(1). On defendant's motion to suppress, the trial court found that the informant's tip established probable cause to search the residence for drugs and that the officers' failure to obtain a warrant was "fatal to the search." Without resolving the factual conflict between the officer's and defendant's testimony, the court found that the events following the officers' attempt to buy drugs did not justify their warrantless entry and arrest of defendant.
The Appellate Division affirmed the trial court's grant of defendant's motion to suppress. State v. Hutchins, 226 N.J. Super. 454 (1988). For purposes of the appeal the Appellate Division accepted Officer Lemon's version of the facts. Id. at 456. The court acknowledged the stringent standard traditionally applied by the United States Supreme Court in cases involving warrantless searches in the home. Id. at 457. Declining to consider the question of probable cause, the court focused on "whether an exigency created by police action can justify a warrantless search." Id. at 456. The court found that the police in this case impermissibly created the asserted exigency, the potential destruction of evidence. It reasoned, "[o]nce the police identified themselves the destruction of evidence was highly probable. But that exigency was the result of voluntary action taken by the police." Id. at 457.
We granted the State's motion for leave to appeal.
In State v. Bolte, 115 N.J. 579 (1989), a case involving application of the exigent circumstances exception to a warrantless entry into the home of a defendant suspected of various motor vehicle offenses, we recently reiterated the principle that "warrantless searches or arrests in the home must be subjected to particularly careful scrutiny." Id. at 583. As the United
States Supreme Court has acknowledged, "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972). Accordingly, it is well established that "searches and seizures inside a home without a warrant are presumptively unreasonable," Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980), and hence "prohibited by the Fourth Amendment, absent probable cause and exigent circumstances." Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 743 (1984).
The parameters of the exigent-circumstances exception to the warrant requirement referred to by the Court in Welsh are not definitively established. One of the earliest references to the exception is found in Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440-41 (1947):
There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with. [333 U.S. at 14-15, 68 S. Ct. at 369, 92 L. Ed. at 441.]
The exigent circumstances exception was relied on by the government in Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970). In that case police officers had a valid arrest warrant for defendant, a suspected drug dealer, and arrested him after they observed him make a drug sale. Id. at 32-33, 90 S. Ct. at 1970-71, 26 L. Ed. 2d at 412. The Court rejected the government's contention that the subsequent search of his home was validated by exigent circumstances:
[O]ur past decisions make clear that only in "a few specifically established and well-delineated" situations, may a warrantless search of a dwelling withstand constitutional scrutiny, even though the authorities have probable cause to conduct it. The burden rests on the State to show the existence of such an exceptional situation. And the record before us discloses none.
There is no suggestion that anyone consented to the search. The officers were not responding to an emergency. They were not in hot pursuit of a fleeing felon. The goods ultimately seized were not in the process of destruction. ...