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DeCapua v. Bell Atlantic-New Jersey

January 21, 1998


On appeal from Superior Court of New Jersey, Law Division, Ocean County

Before Judges Petrella, Skillman and Lesemann.

The opinion of the court was delivered by: Lesemann, J.s.c. (temporarily assigned).

Submitted December 1, 1997 -

On appeal from a municipal court conviction, the Law Division found that the warrant portion of a complaint-warrant was invalid, as was the attempt to execute the warrant by arresting the defendant. Based on that finding, it dismissed the two count complaint charging defendant with disorderly conduct and resisting arrest.

The State argues that use of a warrant here was correct, but that, even assuming the contrary, the court should have amended the warrantcomplaint, treated it as a summons-complaint and dealt with the complaint on its merits. It also argues that, in any event, the penalty for an improper warrant or an improper arrest is the suppression of any evidence obtained thereby, but not a dismissal of the complaint itself.

The bizarre set of facts that led to this appeal began when municipal police in Ship Bottom received a complaint from police in a neighboring town that someone at defendant's home in Ship Bottom was making harassing phone calls. The Ship Bottom police went to defendant's house and spoke to him. He was intoxicated. The conversation was amicable for a short time but defendant then ordered the police to leave, and they did so.

Defendant was apparently angry with the Ship Bottom police because of their visit. He then made at least two separate calls to emergency phone number 911 asking that the State Police respond to what he called harassment by the Ship Bottom police. On each occasion the 911 operator called the Ship Bottom police who twice went to defendant's house to tell him that State Police procedures precluded their responding to calls within Ship Bottom and thus the State Police would not be answering his calls. On each occasion they asked defendant to stop making the 911 calls.

Defendant, who was a ham radio operator, then launched a broadbased plea for help, via his radio, addressed to anyone who might hear his call. Other operators throughout the East Coast received his message and called various New Jersey State Police offices, including those in Bloomfield, Bass River, Holmdel, and Hammonton. Not surprisingly, the State Police called the Ship Bottom Police, asking that they do something to stop the calls.

Having already visited defendant three times with no positive result, the Ship Bottom Police determined that the disruptive calls could be terminated only by arresting defendant. They called the municipal Judge, apparently to obtain a warrant. The description of that call is incomplete and unclear. The Judge did set a bail amount, presumably in anticipation of an arrest, but there is no indication that he heard any evidence of probable cause to justify a warrant, that he made a finding that there was such probable cause, or that he indicated even orally that he was issuing a warrant and authorizing the arrest. The police, however, interpreted the Judge's comments as authorization for issuance of an arrest warrant. They determined to arrest defendant first, after which they would complete preparation of the warrant.

The police then went to defendant's home. When he opened the door, they told him he was under arrest for disorderly conduct. He replied with a vulgarity, slammed the door and retreated within the house. The police pushed open the door (which knocked defendant to the floor), hand-cuffed him and placed him under arrest. Thereupon they filled out and signed a complaint against him which contained two counts, one charging disorderly conduct and the other resisting arrest. They also completed a warrant for his arrest.

Following trial in municipal court, the defendant was found guilty of disorderly conduct and resisting arrest. The court found that the disorderly conduct consisted of making 911 emergency calls when there was no emergency which, it said, constituted "false alarms"; and the resisting arrest consisted of defendant's slamming the door and retreating within his house after the police had told him he was under arrest. The court imposed a $500 fine for the disorderly persons offense and $250 for the resisting arrest charge.

On defendant's appeal to the Law Division, that court focused almost entirely upon what it conceived to be an improper arrest without a validly issued warrant. For reasons that are not clear, the court declined the State's request to amend the complaint to treat it as a complaint with summons, rather than a complaint with warrant. Similarly, without expressing a reason for its determination, the court also rejected the State's argument that the appropriate sanction for an invalid arrest should be the suppression of any evidence seized at the time of the arrest (there was none) and in no event should the complaint be dismissed. The court simply noted that it would "exercise its discretion" to dismiss the complaint because of the improper arrest, and it did so.

Initially, we note that, while we need not decide the issue, the State is probably correct that a warrant could well have issued here for defendant's arrest in connection with a complaint for disorderly conduct. R. 3:3-1(b)(3) provides that a warrant may issue on a complaint if the Judge (or one of the other persons authorized to issue such a warrant) *fn1 "has reason to believe that the defendant is dangerous to himself or herself, others or property." Here the defendant's ongoing conduct certainly can be said to have created a danger to others. He was diverting the attention of emergency operators, the state police and the local police. Three visits to his house had not ended his disruptive behavior and it was not unreasonable to believe that he would continue his phone and radio calls throughout the night. Particularly with the request from the State Police to stop the disruptive conduct, a warrant would have seemed justified.

However, assuming that to be so, the fact is that no warrant issued until sometime after the arrest and the Law Division Judge was correct in regarding the police action as constituting an arrest without a warrant. *fn2 However, that does not explain the refusal to honor the State's request to amend the ...

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