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State v. Smith

July 16, 1998

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SHAWN SMITH, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Handler, J.

Argued January 5, 1998

On certification to the Superior Court, Appellate Division, whose opinion is reported at 291 N.J. Super. 245 (1996).

This is a search and seizure case. In this case, and in State v. Zutic, ___ N.J. ___ (1998), also decided today, the central issue is whether incriminating evidence that was used to secure a defendant's conviction for drug offenses was obtained as the result of an unreasonable warrantless search of the defendant's person. The more specific issue is whether a confidential informant's tip, together with some corroboration of the information contained in the tip, established probable cause to justify the search of defendant's person. An additional issue relates to whether the ultimate seizure of the incriminating drugs was tainted by the initial personal search of defendant without probable cause.

I.

On February 23, 1993, a confidential informant told Detective Robert Hilongos, an experienced member of the Narcotics Bureau of the Elizabeth Police Department, that a man was selling drugs in the lobby of the Oakwood Plaza Apartments, located at 400 Ivington Avenue in Elizabeth. The informant described the man as a black man wearing a three-quarter length jacket and a yellow cap. The informant said the man was taking orders from people in the lobby and then retrieving drugs from apartment #2L. The informant also said that the man was using a red Datsun parked across the street with license plate number HIO 33D.

Hilongos knew the informant and believed him to be reliable. The informant had done "one job" for Hilongos in the past, and the informant's information resulted in an arrest and conviction. A few minutes after receiving the tip, Hilongos and two other police officers proceeded to Oakwood Plaza in an unmarked vehicle. Two uniformed officers were also called to the scene. Upon arrival, Hilongos saw a black man wearing a three-quarter length black coat and a yellow cap and standing on the sidewalk approximately fifty or sixty feet from the lobby entrance. There was a red Datsun parked across the street from the apartments, but Hilongos could not remember if he saw the car before or after stopping defendant.

Hilongos stopped and searched the man who was later identified as defendant, Shawn Smith. He seized a pair of keys from defendant. Hilongos testified that he was searching for drugs and that he knew the keys were not a weapon. None of the keys were imprinted with an apartment number or any other distinguishing marks. When asked what he was doing in the area, defendant told Hilongos that he lived in Newark but was visiting relatives in the area. Hilongos testified that he did not attempt to conduct surveillance or otherwise verify the informant's tip because it was impracticable.

After seizing the keys, Hilongos had the two uniformed officers detain defendant while he went upstairs and knocked on apartment #2L. He also called the apartment manager, Kathy Ryan, to the scene. While waiting for Ryan, Hilongos knocked on the door to #2L, but no one answered. A neighbor, Andrea Smith, informed Hilongos that someone named Stacy Walker lived in the apartment but Walker was in the hospital. According to Hilongos's testimony, Andrea Smith told him that Walker was her sister and defendant was her brother. Andrea Smith testified, however, that defendant is not related to her.

Either Andrea Smith or another neighbor, Patricia Wright, called Walker at the hospital. The phone was passed from Smith to Ryan and then to Hilongos. Eventually, Walker gave Hilongos permission to enter the apartment. Ryan testified that she "told [Walker] that the cops wanted to get into her unit because apparently they had somebody that had keys or something to her unit." Hilongos testified that he could not remember if he told Walker that she had a right to refuse permission to enter the apartment. Walker testified that Ryan told her that police needed access to Walker's apartment and they wanted permission to enter the apartment. Ryan advised Walker that she had a right to refuse access to her apartment, but warned Walker that her refusal would cause the police to obtain a search warrant and "if the police had to get a warrant to get in, [Walker] would be responsible for damages because normally they break the door." Walker testified that the police told her that they needed to enter her apartment to retrieve defendant's wallet.

Ryan and Andrea Smith described Walker, who was pregnant and was hospitalized because of high blood pressure, as being "upset," "crying," and "hysterical" during their telephone conversations with her. Andrea Smith testified that "[Ryan] was trying to calm her down and I heard her telling Stacy something to the effect, no, you're not going to lose your apartment and you have nothing to worry about and you don't have to let them go into the house." Walker gave Hilongos permission to enter her apartment after Ryan assured her that she would not be evicted.

After Walker consented to the entry, Hilongos entered apartment #2L by using one of the keys he had seized from defendant. The police found inside the refrigerator a plastic bag containing fifty-nine vials of what looked like cocaine. Hilongos then "notified the officers that were holding [defendant] to place him under arrest."

On July 1, 1993, a Union County Grand Jury indicted defendant, charging him with third degree possession of a controlled dangerous substance (CDS) (count one), third degree possession of a CDS with intent to distribute (count two), and third degree possession of a CDS with intent to distribute within 1000 feet of a school (count three).

The trial court denied defendant's motion to suppress the keys and the cocaine. The court held that whereas the seizure of the keys was unlawful, the discovery of the cocaine was lawfully based on Walker's consent. The court held that once the cocaine was discovered, the keys would have inevitably been discovered. Therefore, the court denied the suppression motion in respect of both the keys and the cocaine. After losing the suppression motion, defendant pled guilty.

Defendant appealed the denial of his motion to suppress, and the Appellate Division affirmed. 291 N.J. Super. 245 (1996). The Appellate Division ruled that the search of defendant was justified by probable cause to arrest him. Id. at 258. The court sustained the search of the apartment based on Walker's consent. Ibid. In the alternative, the court held that defendant had no expectation of privacy in the apartment to support a claim that ...


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