On appeal from the Superior Court, Law Division, Essex County
Gaulkin, Brody and Landau. The opinion of the court was delivered by Gaulkin, P.J.A.D. Landau, J.A.D., Dissenting.
Following the denial of her motion to suppress, defendant pled guilty to second-degree conspiracy to violate the narcotics laws (N.J.S.A. 2C:5-2), second-degree possession of cocaine with intent to distribute (N.J.S.A. 2C:35-5b(2)), third-degree distribution of cocaine within 1000 feet of school property (N.J.S.A. 2C:35-7) and third-degree distribution of cocaine (N.J.S.A. 2C:35-5b(3)). The State waived any mandatory parole ineligibility term (N.J.S.A. 2C:35-12), agreed that the second-degree crimes would be sentenced as third-degree crimes (N.J.S.A. 2C:44-1f(2)) and recommended that defendant's custodial sentences aggregate not more than three years. In keeping with that agreement, the trial Judge imposed concurrent three-year custodial sentences on all counts. Defendant now appeals from the judgment, challenging only the denial of her motion to suppress the evidence seized following her warrantless arrest in her home. The trial Judge granted bail pending appeal.
The facts are undisputed. Detective Boswell, an undercover officer of the Newark Police Narcotics Bureau, was told by an informant that crack cocaine could be bought at 179 Norfolk Street, Apartment 1A. Boswell contacted his backup units and told them that he was going to try to make a buy. He went to the building and knocked on the door of apartment 1A. A woman later identified as defendant opened the door. About
five adults and two to four children were in the apartment. Boswell said to defendant, "let me get two," meaning that he wanted "two of whatever was available." Defendant told Boswell to see her son, later identified as Terrell Henry, who was also in the room. Boswell directed his request to Terrell, who asked for $20; Boswell handed over two $10 bills, the serial numbers of which he had previously recorded. Terrell turned to another woman in the room, later identified as Sharlene Wright, and told her to "get him two." Wright went to a side room and shortly returned with two vials of crack, which she gave to Boswell. Boswell then left the apartment, notified his backup units by radio that he made a buy and described the location and the three people involved. Boswell testified that he remained "in the area" while the backup units "went to that location to arrest those three people."
The backup units, consisting of five detectives, went to defendant's apartment to arrest the three persons described by Boswell. As described by Detective Schneider, making warrantless arrests following an undercover buy is departmental policy:
Q. Officer, after you received the report or the information from Detective Boswell that a buy had been made, did you or any of the other officers make any effort to obtain an arrest warrant?
A. No, this is an operation, buy and bust, this is what we do all the time. Once drugs are sold, I should say most of the time. Once drugs are sold the person who sells them are immediately arrested, as often as possible I should say.
Q. Now, is it your experience that when a buy and bust occurs the arrest is immediately effected, even if it involves going into someone's residence?
Q. And is it also the policy from your experience that you go into this residence to make an arrest even though you don't have an arrest warrant?
A. Well, we do go into their residence once we know a crime has been committed to affect the arrest. Was your question an arrest warrant, did you say?
Under those circumstances we don't need an arrest warrant, once a crime's committed we do have the right and are entitled to make that arrest.
The officers came to defendant's door and knocked. When defendant opened the door, the officers immediately identified themselves as police. Upon seeing them, Wright ran into a side bedroom "with [two of the detectives] pursuing her." Schneider concluded that defendant was one of the persons described by Boswell and arrested her. Terrell, at a kitchen table, was also identified as one of the persons described by Boswell and he too was arrested. The two detectives who had followed Wright into the bedroom saw her trying to hide a large package, later found to contain 116 vials of crack, under the mattress; the package was seized and Wright was arrested. The officers seized from Terrell the two $10 bills Boswell had given him; while transporting Wright to the police station, they recovered four crack vials she tried to discard in the rear of the police car.
After their indictment, defendant, Terrell and Wright jointly moved to suppress all of the seized evidence. In denying the motions, the Judge found that Boswell's crack purchase gave the officers the right "to effect lawful arrests upon probable cause" and that the police did nothing that "went beyond the bounds of what's permitted in effecting an arrest on probable cause without a warrant." As the Judge viewed it, there was "nothing other than a knock on the door and the expected response to that knock." Wright's running into the side bedroom "created exigent circumstances," i.e., the possibility that she was going to destroy the crack inventory or that the safety of the officers was at risk. That justified the seizure of the 116 vials; the seizures of the $10 bills and the four vials in the police car were lawful incidents to the arrests of Terrell and Wright.
We conclude that the warrantless entry, arrests and seizures were unlawful. The core principles were stated by our Supreme