On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-01-00141.
Before Judges Stern, A.A. Rodríguez and Payne.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 30, 2003
Defendant was convicted of possession of heroin and/or cocaine, N.J.S.A. 2C:35-10 (count one), and possession with intent to distribute heroin, N.J.S.A. 2C:35-5a and 5b (count two). The trial judge merged the two counts and sentenced defendant to five years in the custody of the Commissioner of Corrections consecutive to a sentence he was then serving. On this appeal defendant argues that (1) the trial judge should have declared a mistrial after discovering that a deliberating juror was a"convicted felon who the trial judge himself had previously sentenced to prison," (2) the trial judge"impermissibly intruded on the deliberations of the jury," (3)"the State failed to meet its burden to prove that the consent to search defendant's residence was obtained from an authorized third party," (4) and did not prove that the consent to search was"voluntarily given," (5)"the police lacked articulable suspicion necessary to justify their request to enter defendant's residence," (6) the motion to suppress should have been granted because of the"warrantless search without probable cause," (7) the evidence was"insufficient as a matter of law to support a verdict based on constructive possession," (8) the sentence"should be vacated" because of the judge's failure to find mitigating factors, and (9) defendant's sentence was"unduly harsh and was based on double counting of an aggravating factor."
Our careful review of the record convinces us that these contentions are clearly without merit and warrant only the following discussion. R. 2:11-3(e)(2).
The proofs adduced at trial revealed that on October 22, 1997, at approximately 3:30 p.m., Detective Jeffrey Carrier of the Plainfield Narcotics Division was"driving a marked police car" eastbound on the 600 block of West Third Street in Plainfield. His partner, Officer Tuwana Marshall, was also in the vehicle. As Officer Carrier passed a driveway between 233 and 235 Muhlenberg Place, in a"high narcotic location," he observed defendant"on his knees reaching up into a basement window."
According to Detective Carrier, defendant's arm was"all the way up to his shoulder," reaching up in an upward direction. Carrier believed that the individual"may have been going to a stash" of narcotics in the basement. The observation was made from approximately seventy-five to 100 feet away while traveling at approximately twenty-five to thirty miles per hour as he drove past the site.
After observing defendant, Detective Carrier made a"U-turn as quick[ly] as possible," and drove up to the driveway between 233 and 235 Muhlenberg Place. Upon entering the driveway, defendant"started to run." Carrier noted that the individual was wearing a"rust-colored leather jacket, with dark pants."
Detective Carrier saw defendant enter the back door of the house at 652 West Third Street. Carrier followed him but the door was locked. Carrier radioed for backup and directed Officer Marshall"to go to the front of the house to make sure nobody runs out."
Thereafter, Detective Carrier"knocked on the door" that defendant had entered. A female answered and, after a conversation, Carrier entered the "common hallway" between the two apartments, and proceeded to"the door that led to the second-floor apartment." He knocked thereon, and spoke with another female who answered that door. Carrier advised the woman that"it is possible that someone just ran up into her apartment," and Carrier entered the apartment with her permission, to investigate.
While climbing the stairs to the apartment, Carrier observed defendant in the bedroom playing a video game. Carrier also observed that defendant was no longer wearing the rust-colored coat, but saw the coat"over the back of a couch." Then Carrier "checked" the jacket and"frisked" defendant for weapons but did not go into his pockets or find any incriminating evidence.
Thereafter, Detective Carrier had defendant"come with" him and had Detective Edward Hafeken go to the basement window where Carrier had first observed the defendant. Hafeken reached in the window and"came down with a handful of suspected drugs." The narcotics seized from the window were found to be eleven vials of cocaine and four folds of heroin. The defendant was then placed under arrest and transported to police headquarters"for processing."
Officer Marshall and Detective Hafeken corroborated Carrier's testimony in terms of what occurred outside the building. Thereafter, Detective Christopher Gulbin testified as an expert about the purpose of a"stash," and in response to a hypothetical question, stated that the drugs were"possessed... with intent to distribute."
Defendant testified on his own behalf, and stated that at the time Carrier observed him, he was"tying [his] boot" in the driveway while"talking to his next door neighbor." The defendant testified that he"jogged away" from the police because if the police"stopped and started searching" him, they would plant drugs on him because he was in a"heavy drug narcotics" area, and he feared being found in violation of his parole and"sent back" to prison. However, the defendant claimed that he was not selling drugs on the day in question and did not reach into the apartment basement window.
A warrantless search of a home is presumptively unreasonable and illegal, and will be justified only if it falls within one of the exceptions to the warrant requirement of the Fourth Amendment and Article I, paragraph 7, of our State Constitution. See, e.g., State v. Bolte, 115 N.J. 579, 585, cert. denied, 493 U.S. 936, 110 S.Ct. 330, 107 L.Ed. 2d 320 (1989); State v. Valencia, 93 N.J. 126, 133 (1983); State v. Whittington, 142 N.J. Super. 45, 51-52 (App. Div. 1976). The burden is on the State to establish that the search is justified under one of the exceptions to the warrant requirement. Ibid. Consent, however, is a well-recognized exception to the warrant requirement. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed. 2d 242 (1974); State v. Maristany, 133 N.J. 299, 305 (1993). And"consent may be obtained from the person whose property is to be searched, from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent." State v. Maristany, supra, 133 N.J. at 305 (citations omitted). Detective Carrier testified at the motion to suppress that, after being permitted to walk through the first woman's apartment to"the common hallway," he knocked on the door leading to the upstairs apartment. He advised the female who responded"that an individual just ran" into the building but did not exit. She responded that"there's no one home, but I'm here with my mother and some children." Carrier then asked if he"could take a look upstairs, and she said sure." He testified that, like the woman who led him to the common hallway, the female was being"cooperative."
There is no testimony about the woman's relationship to the apartment, but no evidence suggests that she did not live there or have authority to consent to the entry. To the contrary, the fact that her mother was present and there were children there suggests she was a resident.*fn1 In any event, it is"appearances of control" at the time of the search,"not any subsequent resolution of questions of title or property rights," that must be used to assess the validity of the officer's search. State v. Santana, 215 ...