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State v. Henry

Decided: July 19, 1993.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 255 N.J. Super. 593 (1992).

For reversal and reinstatement -- Chief Justice Wilentz, and Justices Handler, Garibaldi and Stein. For affirmance -- Justices Clifford, Pollock and O'Hern. The opinion of the Court was delivered by Handler, J. O'Hern, J., Dissenting. Clifford and Pollock, JJ., join in this opinion.


[133 NJ Page 106] This appeal concerns the validity of a "buy-bust" operation that resulted in the arrest and conviction of defendant on narcotics charges. An undercover police officer was invited into defendant's apartment, where he purchased cocaine. As soon as he left the apartment, he informed his backup team of the "buy," and they moved in for the "bust." They knocked, defendant opened the door, and when they announced themselves as police officers, a codefendant fled into a back room of the apartment to try to hide contraband. The question before the Court is whether the warrantless arrest and seizure of evidence in defendant's home violated the United States and New Jersey Constitutions.


On July 29, 1987, around noon, an informant told Newark detective Ralph Boswell that "crack" cocaine was being sold from apartment 1A at 179 Norfolk Street. He also told Boswell that a man named Terrell and a woman named Vivian lived there, and that Terrell would sell crack to "anybody who wanted to buy it."

Detective Boswell informed the five officers who would act as his backup team that he was going to attempt to make a buy at 179 Norfolk. The backup officers drove to the location and waited in their cars a short distance from the address. Detective Boswell drove separately in an unmarked car and then knocked on the door of apartment 1A.

When defendant, Vivian Henry, opened the door, Detective Boswell said, "Let me get two," and at the same time stepped about two feet into the apartment. Defendant closed the door behind Boswell and responded, "You have to see my son for that." She turned and pointed at Terrell Henry, who was standing in the apartment. Detective Boswell approached Terrell and said, "Give me two." Terrell asked Boswell for twenty dollars. The detective gave Terrell two ten-dollar bills that he had photocopied at the stationhouse earlier. Terrell then told another occupant of the apartment, Sharlene Wright, to "go get him two." When she went into another room to get the crack, Detective Boswell observed that in addition to the three adults involved in the drug sale, at least two other adults and several children were in the front room of the apartment. He could not see into the other rooms to determine whether other people were in the apartment. When Sharlene Wright handed Detective Boswell two vials of crack, he left the apartment.

Once outside, Detective Boswell radioed his backup team and informed them that he had made an undercover buy. He described the location and the three people involved in the sale, and then waited outside while the other officers went in to arrest Vivian Henry, Terrell Henry, and Sharlene Wright.

One of the backup detectives knocked on the door of apartment 1A. Defendant opened it, and the police announced themselves. Their identity, however, had already become apparent. Sharlene Wright, who was standing next to defendant, had recognized them as police as soon as defendant opened the door. She fled into a bedroom, with two of the detectives in pursuit. When they caught her, she was trying to hide a plastic bag containing 116 vials of crack under a mattress.

The backup team arrested Vivian Henry, Terrell Henry, and Sharlene Wright and advised them of their rights. They searched Terrell Henry and retrieved the ten-dollar bills that Detective Boswell had photocopied earlier. Because no female police officers were present, the police did not search Vivian Henry and Sharlene Wright. The officers did not conduct a search of the apartment; nor did they detain the four other adults and the three children in the apartment.

When the backup team brought the three suspects outside, Detective Boswell identified them as the people who had sold him crack a few moments earlier. The suspects were put in the back seats of the police cars and driven to headquarters. When one of the detectives was taking Sharlene Wright out of the car, he saw her drop four vials of crack into the rear of the car. He recovered them and observed that they were identical to the vials Wright had tried to hide in the apartment.

An Essex County grand jury indicted defendant and her two codefendants, Terrell Henry and Sharlene Wright, on charges of conspiracy to violate the narcotics laws, contrary to N.J.S.A. 2C:5-2; possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1); possession with intent to distribute, contrary to N.J.S.A. 2C:35-5b(2); distribution of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-5b(3); possession with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7; and distribution within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7. Later, an additional indictment specifically charged defendant with distribution of a

controlled dangerous substance, contrary to N.J.S.A. 2C:35-5b(3); and distribution within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7.

All three defendants moved to suppress the two vials of crack that had been sold to Detective Boswell, the ten-dollar bills that he had used to pay for the purchase, the 116 vials of crack that Sharlene Wright had attempted to hide in the bedroom, and the four vials that she had discarded in the back of the police car. The trial court ruled that no search had taken place with respect to the two vials purchased by Detective Boswell, and that the other three items of evidence had been seized incident to a lawful arrest.

Defendant then pled guilty to the conspiracy, possession, and school-zone offenses. In exchange for the plea, the State agreed to waive the mandatory period of parole ineligibility pursuant to N.J.S.A. 2C:35-12 and to recommend a three-year prison sentence. The State also agreed to downgrade the conspiracy and distribution charges from second- to third-degree crimes. Defendant was sentenced to three-year prison terms on each charge, all of which were to run concurrently.

Defendant appealed the trial court's denial of her motion to suppress the evidence. The Appellate Division reversed the trial court's ruling, holding that although Detective Boswell's "buy" had created probable cause, the exigent circumstances had been police-created and could not justify a warrantless entry into defendant's home. 255 N.J. Super. 593, 605 A.2d 1113 (1992). One Dissenting Judge found the officers' conduct to be objectively reasonable and concluded that even absent exigent circumstances, the entry had complied with the traditional common-law restrictions on entries to arrest. Id. at 606, 605 A.2d 1113.

The State appealed as of right, pursuant to Rule 2:2-1(a)(2).


The Fourth Amendment of the United States Constitution and article I, paragraph 7 of the New Jersey Constitution

protect against unreasonable searches and seizures. A basic principle of Fourth Amendment law is 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). That is a fundamental precept of our own constitution. State v. Hutchins, 116 N.J. 457, 561 A.2d 1142 (1989). The warrant requirement safeguards citizens by placing the determination of probable cause in the hands of a neutral magistrate before an arrest or search is authorized. See Beck v. Ohio, 379 U.S. 89, 96, 85 S. Ct. 223, 228, 13 L. Ed. 2d 142, 147 (1964). If that safeguard is absent, as it was in this case, the State has the burden of proving the overall reasonableness of the search. See State v. Bolte, 115 N.J. 579, 585, 560 A.2d 644, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989).

N.J.S.A. 40A:14-152.1 empowers "any full-time, permanently appointed municipal police officer . . . [to] arrest for any crime committed in said officer's presence and committed anywhere within the territorial limits of the State of New Jersey." That statutory authority comports with the common law of arrest, which allowed peace officers to arrest without a warrant if a breach of the peace was committed in their presence. See State v. Smith, 37 N.J. 481, 494, 181 A.2d 761 (1962), cert. denied, 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963). Under the common law, peace officers also had the authority to arrest without a warrant if they had probable cause to believe that a suspect was committing or had committed a felony, even though it was not committed in the officers' presence. See State v. Doyle, 42 N.J. 334, 345-46, 200 A.2d 606 (1964). An arrest for an offense committed in an officer's presence is presumptively based on probable cause. See State v. Kenison, 248 N.J. Super. 189, 210, 590 A.2d 708 (Law Div.1990), aff'd, 248 N.J. Super. 126, 590 A.2d 677 (App.Div.1991).

Thus, Detective Boswell, having observed the commission of a crime in his presence, had both statutory and common-law authority to arrest defendant on the ...

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