On appeal from Superior Court of New Jersey, Law Division, Essex County.
Pressler, Skillman and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
Tried by a jury under Essex County Indictment No. 3016-9-88, defendant was convicted of possession of cocaine and possession of cocaine with intent to distribute it. The trial court sentenced defendant to three years imprisonment for possession with intent to distribute, into which the charge of simple possession was merged. Defendant now appeals contending that the trial court erred in denying his motion to suppress evidence and that his sentence was manifestly excessive. We now reverse the conviction.
Anthony Ricci, an Essex County Sheriff's Officer on loan to the prosecutor's office, was the sole witness at the suppression hearing. He testified that before 1:00 p.m. on June 8, 1988, the prosecutor's office received an anonymous tip that drugs were being sold out of 50 Oraton Street. Ricci and two other officers immediately went to the scene and placed the house under surveillance. They were not in uniform. Ricci observed a male approach the house and enter a screened vestibule-porch. A door to the interior of the house opened for approximately one minute and thereafter the male left the premises. Ricci and the State contend that what Ricci observed was a drug transaction.
It is clear, however, that Ricci never saw anything pass from the person in the house to the male who was standing on the porch. Ricci and the State contend that the visiting male took currency from his pocket, giving it to the person within the house. However, the uncertain and equivocal nature of Ricci's testimony is revealed by the following excerpt:
Like I stated before, I observed a black male entering the house, apparently going into his pocket, taking apparently what appeared to be some currency out. Went through the first door, knocked on the second door like a transaction or something transpired. He just turned and walked back out.
Subsequently, Ricci also observed a couple, a male and a female, enter the house and leave shortly thereafter. Nothing else was observed regarding that couple.
After the couple left the house, the police decided to investigate more closely. They walked up to the house and knocked on the door. When the door was opened they announced they were the police. According to Ricci, he heard scurrying inside the house and someone shout police. Contemporaneously a person inside attempted to push the door closed. Ricci and his partners pushed the door open, entered the house, found drugs in an upstairs sewing room and made arrests.
The motion judge determined that the anonymous tip, the surveillance which revealed activity consistent with drug trafficking and "that additional furtive conduct or activity . . . on behalf of the defendants" when they reacted to the presence of police at the door, constituted probable cause. Relying on State v. Royal, 115 N.J. Super. 439, 280 A.2d 201 (App.Div.1971), certif. denied, 59 N.J. 294, 281 A.2d 807 (1971), and State v. Boswell, 115 N.J. Super. 253, 279 A.2d 125 (App.Div.1971), the motion judge denied the motion to suppress. The judge did not address the issue of exigent circumstances. See State v. Hutchins, 116 N.J. 457, 561 A.2d 1142 (1989).
On appeal, defendant contends that the police lacked probable cause and, even if probable cause existed, exigent circumstances did not exist to justify a warrantless entry.
We observe at the outset that Royal and Boswell are distinguishable from the present case. Both cases involved actual flight by the premises' inhabitants. In Royal, "two or three individuals ran out of the back of the house and fled over a fence in the rear yard." 115 N.J. Super. at 441, 280 A.2d 201. In Boswell, defendant "ran back into the building, down the stairs and into the basement." 115 N.J. Super. at 255, 279 A.2d 125. Moreover, neither Royal or Boswell involved an attempt to bar the police from entering the premises by closing the door.
The police did not have probable cause to believe that drugs were being sold from 50 Oraton Street when they approached the house and knocked on the door. Their information at that time was limited to an anonymous telephone tip and the visits to the house by a couple and an unaccompanied male. The police observed no exchange between the visitors and occupants of the house. Recognizing the lack of probable cause up to the knock on the door, the motion judge found that the occupants' reaction to the announced police presence provided additional information which ripened reasonable suspicion into probable cause. According to the motion judge, "occupants inside began fleeing, yelling police and attempting to close the door to prevent any entry." We note that the trial court incorrectly determined that the occupants "began fleeing" when Ricci identified himself as a policeman. Ricci testified that "there was a little scurry in the back." There was no evidence of flight as in Royal and Boswell, and the word scurry is too general to have much probative significance. Cf. State v. Lund, 119 N.J. 35, 47, 573 A.2d 1376 (1990) (furtive behavior does not give rise to reasonable suspicion of criminal activity). We suggest that the presence of three policemen at their threshold would excite many innocent occupants of a residence. Cf. State v. Schlosser, 774 P. 2d 1132, 1137 (Utah 1989) (not uncommon for occupants of a vehicle to be nervous and excited when confronted by police).
Warrantless searches are prima facie invalid. The present case involves police entry of a private residence, the protection of which 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, 739 (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"). Recently, in State v. ...