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State v. Frankel

July 02, 2001


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-10-1978.

Before Judges Stern, Collester and Fall.

The opinion of the court was delivered by: Collester, J.A.D.


Argued December 19, 2000

Pursuant to leave granted, the State appeals from an order of the Law Division granting defendant's motion to suppress evidence. We reverse.

On December 28, 1999, a Monmouth County Grand Jury indicted defendant, Gary Frankel, on charges of possession of marijuana in the fourth degree, contrary to the provisions of N.J.S.A. 2C:35- 10a(3), and operating a marijuana production facility, a crime of the first degree, contrary to the provisions of N.J.S.A. 2C:35-4.

Defendant filed a motion to suppress evidence. The salient facts testified to at the suppression hearing are that on June 21, 1999, at 7:26 a.m. Freehold Township Police Dispatcher Darling Ecko received a 9-1-1 call from the phone line of 732-625-0590. When Ecko answered the phone, no one was on the line, and all she heard was static. She described such a call as an "open line" call and related that during her early morning shift she had received three other open line 9-1-1 calls from two other residences: one at 12:20 a.m.; one at 3:05 a.m.; the other at 7:06 a.m. When the 7:27 a.m. call came from defendant's phone line, Ecko exclaimed on the tape monitoring the call: "This is ridiculous. It's three separate residences in the town. I've never had this happen before. Hello?"

Ecko dispatched Patrolman Russell Gelber to check out the open line call at 175 Siloam Avenue, the address shown on her computer screen for the origin of the call. Gelber arrived at the address within ten minutes. He saw no vehicles outside and at first thought that the house was empty. A white sheet behind the screen door blocked the view inside.

After Gelber knocked, the defendant looked out from behind the sheet. Gelber told him that a 9-1-1 call had been made from the residence and that no one was on the line when the call was answered. Defendant replied that he made no such call. When Gelber asked if someone else could have made the call, the defendant said that he lived alone.

Gelber testified that the defendant was extremely nervous and was tripping over his words, which in turn made Gelber nervous since he could not see what, if anything, the defendant was doing behind the sheet. He asked the defendant to step outside the house and patted him down for weapons, finding nothing. Gelber then asked if he could step inside the residence to make sure everything was all right. Defendant refused to permit entry and repeatedly denied making the 9-1-1 call. He added that he was a computer consultant and that the 9-1-1 call must have been a computer error. Gelber said the defendant seemed "totally shocked" at his suggestion that he enter to make sure that no one was in trouble. Defendant started to panic, asked whether he needed a lawyer, and said that Gelber could not enter without a search warrant.

Gelber said that never before had anyone refused him entry when he responded to a 9-1-1 call. Along with defendant's anxiety the denial by defendant led Gelber to fear that someone inside was in danger. Accordingly, he called for backup.

While he waited, Gelber told defendant that the 9-1-1 call had been traced to his residence. Defendant confirmed the phone number and suggested that since he was on the computer earlier that morning, the computer may have inadvertently dialed 9-1-1. To check out that possibility, Gelber called the dispatcher and asked her to call the number of the 9-1-1 call. While waiting for the result, Gelber asked whether there was something inside the house that defendant did not want him to see. Defendant said there was some "sexual stuff" and that he was embarrassed about it.

The dispatcher called Gelber back and told him that the phone line in question was busy, which made Gelber even more concerned that someone was in the house needing assistance. The defendant said he would go inside to show the officer that the phone was operational and not being used.

He allowed Gelber to step into the foyer, and Gelber next saw the defendant run down the hallway out of sight. Within seconds he reappeared with two cordless phones. He was speaking to his mother on one, telling her that the police wanted to enter his house. Defendant then hung up and used one cordless phone to call the number which was traced to the 9-1-1 call, the other cordless phone rang. Gelber then told defendant that the demonstration only showed that ...

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