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State v. Liberatore

September 14, 1995


Bozonelis, J.s.c.

The opinion of the court was delivered by: Bozonelis



This matter was opened to the Court on defendant's de novo on the record appeal to the Law Division, R. 3:23-8(a), from the Town of Boonton Municipal Court. Defendant was charged with two disorderly persons offenses: obstruction of Justice and resisting or eluding arrest. He was also charged with making an improper left turn, driving while under the influence of intoxicants (DWI), and refusing a breath test. Defendant's motion to suppress based upon an unlawful arrest was denied in the Boonton Municipal Court. After a trial, defendant was acquitted of the obstruction of Justice charge and convicted on all remaining charges. The improper left turn conviction was merged into the DWI conviction. Defendant now renews his motion to suppress and argues, in the alternative, that if the suppression motion is denied, there is insufficient credible evidence to support his convictions.


On December 16, 1994 at approximately 2:00 a.m., Patrolman Krok was parked on or about Williams and Main Streets in the Town of Boonton when he observed the defendant's vehicle. He suspected that the defendant, Lucio D. Liberatore, was going to make a prohibited left turn onto Union Street and, in fact, observed Mr. Liberatore making that left-hand turn. He then pursued Mr. Liberatore's vehicle onto Union Street and continued to follow the vehicle onto the approach of the intersection of Mechanic and Cedar Streets. Mr. Liberatore's vehicle then pulled into a parking space and stopped. Defendant exited the vehicle and walked toward the enclosed front porch of a dwelling later determined to be his residence.

At this point, defendant's version of events differs from that of Officer Krok. Mr. Liberatore states that he entered the front porch and that the officer followed him onto the porch and arrested him. If that was the case, the restrictions of Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984), and State v. Bolte, 115 N.J. 579, 560 A.2d 644, certif. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989), discussed in full below, would apply. The search and seizure of Mr. Liberatore would not be sustainable under the Fourth Amendment and this matter would be dismissed.

However, a review of the entire transcript supports as credible the version of Officer Krok and the Court so finds. Officer Krok states that Mr. Liberatore stopped and exited his vehicle in the middle of the road, moving toward the house. He asked Mr. Liberatore to stop. Mr. Liberatore did not stop and began to be verbally abusive to the officer. The officer approached Mr. Liberatore at or near the front porch where they continued their exchange. Mr. Liberatore continued his verbal abuse to the officer. Officer Krok again asked Mr. Liberatore to stop to inform him that he had committed a motor vehicle violation. During this time, Mr. Liberatore made a movement toward the storm door handle of the porch in an attempt to enter the residence. Patrolman Krok informed the defendant that he was going to be placed under arrest and indeed placed him under arrest and advised him of his Miranda rights. He then took Mr. Liberatore back to the patrol car, placed him on the hood of the car, frisked him, advised him again that he was under arrest, and told him not to move.

The defendant disputes the arrest in that the officer did not handcuff him. However, the lack of handcuffs is not significant because Mr. Liberatore offered no physical resistance to the officer even though he was verbally abusive to him. The defendant finally consented to return to the vehicle with the officer after he had been advised of his Miranda rights. The officer took precautionary measures. Handcuffs were unnecessary. Rather, the officer felt that would have exacerbated the situation since there was no physical resistance. Handcuffing might have caused physical resistance in terms of a reaction from Mr. Liberatore. In the alternative, therefore, the officer had positioned the defendant against the car.

What happened next was that Mr. Liberatore moved away from the patrol car and back into the enclosed front porch. At this point, another witness, the neighbor, a Mr. Cash, heard loud noises and banging as a result of Officer Krok advising Mr. Liberatore that he was already under arrest and that if he did not exit the porch, the officer would come in and remove him. In fact, he requested Mr. Liberatore to come out a number of times. The defendant remained uncooperative and Officer Krok entered the porch and physically removed him onto the sidewalk. He was once again advised that he was under arrest, taken back to the patrol car and eventually taken down to the police station. At the station, defendant was charged with DWI and refusal to take a breathalyzer test.


There is no question that Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984), stands for the proposition that the Fourth Amendment prohibits police from making a warrantless entry into a suspect's home to arrest for a minor traffic violation. And, indeed, the Welsh court indicated "that it is difficult to conceive of a warrant less home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor." Id. at 753; 104 S. Ct. at 2099; 80 L. Ed. 2d at 745. The only exceptions may be ones of hot pursuit and exigent circumstances and those exceptions concern felonies as in U.S. v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300, 305 (1976) rather than minor offenses.

Our Supreme Court in State v. Bolte, 115 N.J. 579, 560 A.2d 644 (1989) adopted and approved of this reasoning under facts involving minor offenses which included resisting arrest. Probable cause in those circumstances does not justify simply following suspects without a warrant into their homes. There are no exigent circumstances or hot pursuit in that regard. In Bolte, Id., at 597, there is also no question that the Court speaks in terms of probable cause to arrest when an officer is pursuing. And that is the context in which both Welsh and Bolte were decided and what they stand for: probable cause in terms of a warrantless entry. They do not address a situation as herein where a lawful arrest has already been accomplished by an officer and Miranda rights having been effected.

The defendant asserts that there is no distinction between these two scenarios. He argues in effect that the Bolte Court, in applying the current facts, would hold that a defendant is "under arrest" because of the fact that he was told to stop and he was eluding the police or resisting arrest in that regard. This court is unwilling to make that leap from probable cause arguments to actions of officers after lawful arrest arguments. The two are distinct. One ...

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