On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Mercer County, Indictment No. 99-12-1092.
Before Judges Kestin, Ciancia and Alley.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 26, 2000
The issues before us in this appeal arise from the trial court's grant of defendant's motion to suppress evidence that was found in clothing belonging to him and elsewhere within his reach in a third-party's home in a search conducted upon execution of a parole warrant for defendant's arrest, but without a search warrant. The focal question is one of first impression under State law implicating the rights guaranteed by Article I, paragraph seven, of the Constitution of New Jersey to be free from unreasonable searches and seizures, and going beyond issues previously addressed in State v. Jones, 143 N.J. 4 (1995), and State v. Bruzzese, 94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1245, 79 L. Ed. 2d 695 (1984). It calls upon us to define the nature and extent of knowledge an arresting officer must have regarding a suspect's presence in a third-party's dwelling before executing an arrest warrant therein.
This matter must be resolved on State law grounds because our principles of standing to bring a motion to suppress evidence obtained in an unlawful search and seizure are broader than those which govern the application of the standards developed under the Fourth Amendment to the Constitution of the United States. See State v. Alston, 88 N.J. 211, 218-30 (1981). Under State law, the motion may be brought by a defendant against whom evidence is proffered "if he has a proprietary, possessory or participatory interest in either the place searched or the property seized." Id. at 228.
[W]hen the charge against defendant includes an allegation of a possessory interest in property seized such as would confer standing, under the traditional test we retain today, to object to prosecutorial use of evidence obtained in an unlawful search and seizure, the defendant has automatic standing to bring a suppression motion under R. 3:5-7, as "a person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the evidence attained [sic] may be used against him in a penal proceeding.["] [Id. at 228-29.]
Under federal constitutional law, defendant, as the subject of an arrest warrant, might well lack the standing to object to the search, without a search warrant, of a home in which he was present but in which he did not reside. See generally Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981); Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh'g denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L.Ed. 2d 83 (1979); see also United States v. McIntosh, 857 F.2d 466, 467 (8th Cir. 1988); United States v. Levasseur, 699 F. Supp. 995, 999 (D. Mass. 1988), aff'd sub nom. United States v. Curzi, 867 F.2d 36 (1st Cir. 1989).
[I]n the appropriate situation our State Constitution may independently furnish a basis for protecting personal rights when it is not clear that the guarantees of the federal Constitution would serve to grant that same level of protection. See State v. Schmid, 84 N.J. 535, 553-60 (1980). That this basic principle of American federalism confers upon this Court the power to afford the citizens of this State greater protection against unreasonable searches and seizures than may be required by the Supreme Court's interpretation of the Fourth Amendment is beyond question. [Alston, supra, 88 N.J. at 225.]
This authority to apply the State Constitution independently from and more broadly than the federal Constitution has been exercised frequently by the New Jersey Supreme Court in respect of search and seizure issues. See, e.g., State v. Cooke, 163 N.J. 657, 671 (2000) (retaining the probable cause and exigent circumstances tests in assessing the reasonableness of an automobile search); State v. Pierce, 136 N.J. 184, 209-10 (1994) (declining to adopt a categorical rule permitting warrantless automobile searches incident to all arrests); State v. Hempele, 120 N.J. 182, 223 (1990) (holding invalid warrantless searches of garbage bags left on curb for collection); State v. Novembrino, 105 N.J. 95, 158 (1987) (rejecting a good-faith exception to the exclusionary rule for search warrants issued without probable cause); State v. Hunt, 91 N.J. 338, 348 (1982) (recognizing a protectible interest in telephone-toll-billing records); State v. Johnson, 68 N.J. 349, 353-54 (1975) (holding that the validity of a consent to search depends on knowledge of the right to refuse consent). We conclude that the case before us requires the same approach in order to keep faith with principles and policies embodied in our State's Constitution.
As a matter of State law, therefore, we adopt a two-part standard governing the execution of an arrest warrant in circumstances such as those at hand: in the absence of consent or exigency, an arrest warrant is not lawfully executed in a dwelling unless the officers executing the warrant have objectively reasonable bases for believing that the person named in the warrant both resides in the dwelling and is within the dwelling at the time. The trial court here found that defendant was not a resident of the premises in question, that the arresting officers had no adequate basis to believe defendant was a resident of that third- party's home, and that the third-party did not consent to the arresting officers' entry into her home. These findings, in view of the absence of a search warrant and the State's concession that no exigent circumstances existed, compel us to affirm the order suppressing the evidence found incident to the arrest.
On August 26, 1998, while defendant was on parole from a State prison sentence, a parole warrant was issued for his arrest. See N.J.S.A. 30:4-123.62. The warrant was executed at 263 Spring Street, Trenton, on February 24, 1999, by defendant's parole officer, Joseph McGovern, and five other officers. After the officers gained entry, defendant was found in the front bedroom of the second-floor apartment in which his two children and their mother, Sandra Champion, resided. When the officers first saw him, defendant was lying face-down on the floor at the bed, dressed only in his underwear. It appeared to McGovern that defendant was attempting to get under the bed but could not fit between the nightstand and the bed. The officers placed defendant under arrest, handcuffing him and seating him on the bed. At the officers' request, defendant selected some attire to wear from clothes scattered on the floor. The officers first searched the items defendant had selected, and found in them marijuana contained in two small bags and in a clear bottle. The officers then searched the area surrounding defendant. In the nightstand beside the bed, they found a large zip-lock bag, forty-eight smaller bags, and four clear bottles, all of which contained marijuana. McGovern testified at the suppression hearing: "On the parole warrant, we were looking for parole violations, any contraband, anything of that sort." The officers did not have a search warrant for the apartment. Based upon the evidence seized, defendant was charged with fourth degree possession of marijuana and third degree possession of the marijuana with intent to distribute.
McGovern and Champion were the only witnesses at the suppression hearing, for the State and the defense respectively. Judge Smithson found both to be credible, an evaluation we have no reason to reject. See State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993) (applying the substantial evidence rule of State v. Johnson, 142 N.J. 146, 160-62 (1964), to findings made on motions to suppress); State v. Boone, 114 N.J. Super. 521, 525 (App. Div.), certif. denied sub nom. State v. Terry, 58 N.J. 595 (1971) (same).
McGovern testified that he had been defendant's supervising parole officer. After securing the arrest warrant, he attempted on three separate occasions between September 30, 1998 and January 21, 1999, to locate defendant at the address listed therein, 52 Sanhican Drive, Trenton. On the first visit, McGovern was told by an occupant of that residence, defendant's aunt, that defendant did not live at that address and that she was uncertain as to where he could be found.
McGovern reviewed defendant's file and discovered notes revealing that defendant spent a great deal of time with Champion, who, according to the notes, resided at 58 Colonial Avenue, Trenton. Therefore, on February 24, 1999, at approximately 7:00 a.m., McGovern and the five other parole officers went to that address to execute the arrest warrant. The officers were told by an occupant of that residence, Champion's mother, that defendant did not reside there, but lived with her daughter and the couple's children in a second floor apartment located at 263 Spring Street, and were there at that time.
The parole officers proceeded immediately to 263 Spring Street, arriving at approximately 7:10 a.m. Champion answered the door to the apartment and, after the parole officers identified themselves and revealed their purpose, she told them defendant was not there. At the suppression hearing, McGovern testified that after he informed Champion he had spoken with her mother and was going to call the Trenton police as back-up if she did not let the contingent into the apartment, Champion stepped aside and allowed the parole officers to enter. According to McGovern in response to a question from the court, the parole officers had planned to enter the apartment whether Champion gave them permission or not.
Champion recounted a version of events different in significant particulars. She testified that the parole officers identified themselves as police and threatened her with arrest if she did not let them into her apartment, as she was harboring defendant. Initially Champion opened the door to let them into the apartment, but when the parole officers refused to show her a warrant, she put her hands up to stop them from proceeding any further into the apartment. Yet, they walked right past her.
Champion also testified about the living arrangements in her second floor apartment, maintaining that only she and her two children resided there. She insisted that defendant lived with his aunt at 52 Sanhican Drive. She indicated that although defendant would stop by the apartment to see their children, he stayed overnight only a few times a month; and that he did not possess keys to the apartment.
In evaluating the evidence and the positions advanced by counsel, Judge Smithson noted the State had argued that Champion's consent was not the focal issue in the matter and that "[t]he evidence support[ed] a finding that the defendant lived at that home. Consequently, consent was not necessary, and the officers had a right to enter the home and search." The judge went on:
The issue is, in my judgment, whether or not the evidence supports a finding that the defendant lived at the home that was searched at the time, meaning, 263 Spring Street, apartment 2 in Trenton on February 24, 1999. The state's argument is based upon a construct that he, the defendant, wasn't found at the residence that he had listed, and that was his last known address, as far as parole authorities are concerned, and I think that's a reasonable statement of fact that has been developed here, and that his aunt indicated that he didn't live there anymore, but lived somewhere else. She didn't testify, so it's a hearsay statement. It's acceptable in terms of a hearing such as this. There's always a question of what weight must be attached to it. The fact that the defendant was found at 263 Spring Street is somewhat corroborative, but certainly, it doesn't end the inquiry at all.
I don't know where the defendant really calls home, it may be any number of places, but I'm satisfied from listening to the testimony of Sandra Champion that he was a visitor, a visitor who may have been there more frequently than she said, but I don't find that the evidence is such that it supports the conclusion that that is or that was his residence at the time. He certainly had children, they lived there, but I haven't heard anything or any evidence that indicated he's going to get some sort of an award for being a good dad or a good father. I tend to think he didn't see them very frequently.
I do think, from what she said, and she was being truthful, that it was embarrassing testimony. Essentially, the defendant came when he wanted to become intimate. He kind of used her. It may have been very much a one-way street. It doesn't say much about Mr. Miller, but nonetheless, it does, in my judgment, support the fact that he was not a resident of that particular home at the time. And I do accept Ms. Champion's testimony in that regard. I find it to be entirely credible.
The question then becomes did she consent to let the officers in, and I have to answer that no, and I don't think it's a question or issue of whether or not she knew she had the right not to let them in, it ultimately is an issue of voluntariness. Is this something that she voluntarily did? She was faced with six officers and badges and so forth, all right. Even so, she had the presence of mind to talk to them, and they're talking to her, she just didn't back up and open the door. But I do believe that she did that after she got the clear impression that it didn't matter what she said. They were going to come into that apartment and search, and if they needed to get the backup of the Trenton Police, it was either to arrest her for harboring a fugitive, which is a fairly heavy threat under the circumstances that existed at 7:00 that morning, or that they needed more help to simply accomplish what they wanted to do, and what they wanted to do, McGovern indicated, was to go in and get the defendant. There was no issue. I asked a question, and I think he was candid and responsive, he said that they were going to go in no matter what she said, and I think that's absolutely true.
She opened the door in the face of the coercive, in my judgment, situation that exhibited. She said she had a moment where she was going to let them come in, but again, I'm finding it wasn't voluntary, and then she said she had second and third thoughts and wanted some proof that they could really come in and violate her home. ...