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State v. Berlow

May 5, 1995

STATE OF NEW JERSEY, PLAINTIFF
v.
MARTIN BERLOW, DEFENDANT



Appeal from ATLANTIC CITY MUNICIPAL COURT.

Approved for Publication August 28, 1995.

Garofolo, P.J.Cr.

The opinion of the court was delivered by: Garofolo

Criminal Action

GAROFOLO, P.J.Cr.

This matter is brought before the court by defendant on appeal from his conviction in municipal court. The issue presented is whether a person who denies entry to a police officer without a search warrant may properly be convicted of obstructing the administration of law under N.J.S.A. 2C:29-1a.

The facts are relatively simple and undisputed. On January 2, 1994, at approximately 9:49 am, Atlantic City police officer Papaycik received a radio dispatch that a 911 anonymous caller reported that a woman had been shot and was in need of help at 116 South Ocean Avenue. Officer Papaycik responded to that location and, finding no victim, called for a "better location". At that time he was told that the victim was supposedly in a rooming house across from 116 South Ocean. Looking at that location, Officer Papaycik observed what he termed was a rooming house located at 127 South Ocean Avenue. He knocked on the door and defendant responded. Officer Papaycik advised him of the purpose of his being there and asked "permission to come inside to see if there was a woman shot and bleeding and injured." Defendant responded that he would not permit the police officer to enter without a search warrant.

At that point, officer Papaycik communicated with his department by radio and was advised that his supervisor would respond to the scene. Momentarily, Sgt. Mangam and officer Webber arrived at the scene and the three officers together approached the door at 127 South Ocean Avenue. At that point, Sgt. Mangam advised the defendant once again of the need to enter the premises. Defendant again responded that he would not permit entry without being shown a search warrant, slammed the door and locked it. Thereafter the police officers decided that due to the exigent circumstances they believed to exist, forcible entry would be made. They thereupon broke through the door. Once the police officers were inside, defendant did nothing to prevent them from conducting a search of the premises.

The result of the search was negative for any shooting victim or any evidence which might suggest that the alleged shooting had occurred within the premises. At the Conclusion of the search, the defendant was arrested and charged with obstructing the administration of law or other governmental function under N.J.S.A. 2C:29-1a.

At trial, defendant testified that he was the owner of the premises, a three-story victorian home which he rents only to gay men. He explained that when the police sought entry, he knew that the information they received was incorrect and, in particular, that there were no women in the house given his exclusive rental policy. He also testified that he believed that he had a Fourth. Amendment right to refuse entry to the police without a warrant and was concerned that allowing them in to conduct the search "...would be disruptive to the house because I could lose a lot of business with all the men in the house there..." He further testified that the 911 call was likely a "revenge-type action" by someone who had been reported for dealing drugs in the neighborhood.

At the trial below and the time of his trial de novo on the record, defendant argued that his exercise of his Fourth Amendment rights under the United States Constitution and Article 1, par. 7 of the New Jersey Constitution, cannot be the subject of a conviction for obstructing the administration of law. I conclude, for the reasons that follow, that he is correct.

Before addressing the constitutional issues raised by defendant, I am obliged to examine whether Disposition can be accomplished on the non-constitutional grounds raised by both parties. District of Columbia v. Geraldine Little, 339 U.S. 1, 70 S. Ct. 468, 94 L. Ed. 599 (1949). The State argues initially that the defendant has no standing to assert federal and state constitutional rights to be secure from unreasonable searches and seizures because he prevented entry by the police to the common area of a rooming house. In making this argument, the State relies heavily on United States v. Anderson, 175 U.S. App. D.C. 75, 533 F.2d 1210 (D.C. Cir. 1976), where it was held that the appellant had no reasonable expectation of privacy in "...the common corridors of the building, which were available to residents of the rooming house, their guests, people making deliveries, and others..." Id at 1214. However, the mere description of the premises here as a "rooming house" does not itself establish the same characteristics of the property found in Anderson. This record is devoid of any evidence that would suggest that the common areas of this rooming house were open to the public or anyone other than residents. Moreover, in Anderson, the defendant was an occupant in one of the rooms of the the rooming house. Here, defendant is the proprietor of the entire premises. Accordingly, there is insufficient evidence upon which this court can find that defendant had no right of privacy in the area to which police sought access.

Next, it is appropriate to consider whether defendant's conduct, both as to its nature and the requisite mens rea, falls within the purview of N.J.S.A. 2C:29-1a. That statute provides as follows:

A person commits an offense if he purposely obstructs, impairs, or perverts the administration of law or other governmental function or attempts to prevent a public servant from lawfully performing an official function by means of intimidation, force violence or physical interference or obstacle, or by means of any independently unlawful act. This section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an ...


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