On appeal from Superior Court of New Jersey, Law Division, Passaic County, I-98-09-0893
Before Judges Baime, Wallace, Jr. and Carchman.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2000
Following denial of his motion to suppress evidence seized in the warrantless search of another's home, defendant Nelson De La Paz, Jr. was tried by a jury and convicted of possession of more than 50 grams of marijuana, N.J.S.A. 2C:35-10a(3), possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), b(11), possession of marijuana with intent to distribute in a school zone, N.J.S.A. 2C:35-7, and possession of paraphernalia with intent to distribute, N.J.S.A. 2C:36-3. After appropriate mergers, defendant was sentenced to a three-year aggregate term with a three-year period of parole ineligibility. Defendant appeals the denial of his suppression motion on both state and federal constitutional grounds. We reverse, and conclude that defendant's motion should have been granted, as defendant had standing to challenge the officers' actions under Article I, Paragraph 7 of the New Jersey Constitution, and no exigent circumstances existed to justify the warrantless entry.
During the early morning hours of May 5, 1998, Paterson Police Sergeant William D. Mott, the State's sole witness at the hearing, was summoned by Lieutenant Sammy Torres to a diner. There, Lieutenant Torres instructed Mott to follow him to a location where, according to an unidentified informant of unknown reliability, drugs were being packaged and distributed. Mott and fellow patrol Officers DeLucca and DeLorenzo followed Torres and the informant to 335 Getty Avenue, arriving at approximately 2:41 a.m. The four uniformed officers double-parked their four squad cars on the wrong side of Getty Avenue "[d]own a couple of houses" from the target address. The informant then pointed from the public sidewalk to a lighted window approximately twenty-five feet down the right-hand side of a shared "double-wide" concrete alleyway between two two-family homes, and indicated that drugs were being packaged there. The informant was instructed to stay with his vehicle while the officers entered the alley to investigate.
The alley was dark, but immediately accessible from the public sidewalk. It was approximately ten feet wide, twenty-five feet long, and blocked-off at the far end by a fence with two separate "doors" leading to the properties' respective back yards. Each house facade on the alley contained windows, but no doors, and at least one utility meter was located on the side of the target house near the head of the alley. Although the lighted window's interior was covered by horizontal blinds and a translucent sheet, the blinds were open, the fabric failed to cover several inches of the lower portion of the window, and the window itself was slightly ajar. From a distance of approximately twelve to eighteen inches, the officers peered through the window's lower glass pane, which was approximately six feet above the ground, directly into the dwelling. There, the officers observed a resident, Shawn Dax Ackerson (Ackerson), and his guest, defendant (the "suspects"),*fn1 repackaging suspected marijuana from a large plastic bag into small plastic bags while seated at a table in the center of the room. Officer DeLorenzo remained at the back of the alley while the other three officers returned to the public sidewalk to radio the department's narcotics division for an "assess[ment of] the situation, and [to] have them contact the judge and do a warrant." Contrary to Lieutenant Torres' instructions, the informant had already departed.
After ten to fifteen minutes of failed attempts to obtain assistance from a narcotics detective, Lieutenant Torres decided to "do the window," as the officers had already ascertained that several deadbolts on the front door of the home precluded easy access by that route. The officers re-entered the alleyway, retrieved a chair located next to the fence, and planned to enter the lighted room where the suspects were seated by opening the window and shoving Lieutenant Torres through it. Lieutenant Torres' unsuccessful efforts to raise the window while standing on the chair alerted the suspects, who remarked, "did you hear that?" and shut off the light. The officers crouched down, and approximately one to two minutes later, the suspects turned on the light and resumed their positions and packaging activities. The officers continued their surveillance through the window.
Having failed to "do the window," Torres then instructed Mott to "try the front door" while Torres covered the window and DeLorenzo covered the rear of the house. Officer DeLucca accompanied Mott to the front door, which Mott kicked-in with "two or three shots." DeLucca and Mott then ran through the house, arrested the suspects, and seized the evidence. Approximately twenty minutes had elapsed between the time the four officers first arrived on the scene and their warrantless entry through the front door.
Sergeant Mott stated that although none of the officers had ever been assigned to the narcotics division, he had made "several hundred" narcotics arrests and had participated in "dozens" of surveillance operations. He explained that no further efforts were made to obtain a search warrant after the failed attempt to contact the narcotics division because, while he had been trained at the police academy concerning the circumstances under which search warrants are required, he had "no idea" how long it might take to obtain a warrant or "how to go about it," as he had never had occasion to do so in his twenty years on the Paterson Police patrol. Mott further explained that he believed time was of the essence because "officers always feel in danger while [they're] working," and he was concerned by the informant's departure and whether the "maybe two" pedestrians in the area might have seen the officers. However, Mott also acknowledged that the officers never drew their weapons, that he did not, in fact, feel he was in any danger, and that there was no indication the suspects were about to depart. Ultimately, Sergeant Mott justified the warrantless entry as follows:
A. There was a culmination of things. We couldn't contact narcotics, couldn't get them to respond. The noise that we made initially we felt they were becoming suspicious. They had looked out — as I said earlier they actually looked at me a couple of times. I didn't know how they didn't see me. We felt we had to act now before anything happened to the narcotics.
Q. You say before anything happened to the narcotics, what do you mean?
A. Well, it could be stored somewhere else in the home where I may not find it. It could be disposed of or it could be sold.
Q. Now did you have any concern with respect to the people that you saw walk by?
A. Well, I had said that earlier. We were in plain view from the sidewalk. Anybody walking by — and that is a neighborhood where there is a lot of narcotic traffic. If somebody walks by that knows the individuals in the house, they could alert them also.
Q. Now did you consider at the time that you were in the alleyway, did you consider trying to get a warrant on your own if you weren't ...