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State v. Frankel

May 12, 2004

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARY N. FRANKEL, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court determines whether the police department's receipt of an open-line 9-1-1 call from the residence of defendant Gary Frankel justified the officer's limited, warrantless search of the home for a possible victim.

At approximately 7:27 a.m. on June 21, 1999, the Freehold Township Police Dispatcher received a 9-1-1 call from Frankel's home, but no one was on the other end of the line. The dispatcher dialed back the number and received a busy signal. An officer was dispatched to the home with the information that the dispatcher had received a 9-1-1 call from that address and was unable to make contact with a resident. The officer arrived at Frankel's house and found a white sheet hanging behind the screen door blocking any view through the door or side windows. Frankel answered the knock at the door by poking his head out from behind the sheet, which he held back with one hand. He appeared surprised and nervous. The officer explained that he was responding to a 9-1-1 call, but Frankel told the officer that he did not dial 9-1-1. When the officer suggested that perhaps someone in the house did so, Frankel became nervous, tripped over his words, and explained that he lived alone. The officer, out of concern for his own safety, asked Frankel to step out from behind the sheet. He patted down Frankel to ensure he had no weapons and then asked whether he could check the inside of the house. The officer wanted to satisfy himself that a domestic violence victim or an injured person was not inside. Frankel asked whether the officer had a search warrant and, learning that he did not, denied him consent. Frankel also inquired whether he needed an attorney. The officer radioed for backup out of concern for his own safety and fearing someone in the house was in danger.

While waiting for backup, the officer and Frankel conversed on the porch. Frankel explained to the officer that he had been using his computer and the computer might have inadvertently dialed 9-1-1. In response to the officer's question whether he had anything inside the house he did not want seen, Frankel replied that there was"some sexual stuff" inside and he was embarrassed. The officer also radioed the dispatcher to dial back the number that generated the 9-1-1 call. The dispatcher did so and informed the officer that all she received was a busy signal. In the officer's mind, this confirmed that someone might be inside the house. With the permission of the officer, Frankel retrieved his cordless telephones from the house, one for each of the two lines. The telephone for the computer line was used to dial the telephone from which the 9-1-1 call originated, and the telephone rang, indicating that the line was no longer busy. This demonstration did not lessen the officer's concern, however, because defendant could have taken the telephone from a person incapacitated in the house.

After backup arrived, the officer searched any areas of the house in which a person or body could be concealed. He did not search through drawers or containers for personal effects. The officer discovered in plain view marijuana on a tray inside a closet in one room; marijuana plants and an ultraviolet grow light in a bathroom; and marijuana plants, grow lights, and an elaborate watering system in a room in the basement. The officer did not find anyone else in the house. Frankel was placed under arrest and the officers secured a warrant to search the house.

At trial, Bell Atlantic's team leader for the 9-1-1 control center testified that between two and five percent of all 9-1-1 calls are generated accidentally by means such as cordless phones with low batteries, answering machines, computer modems, and repair work on telephone lines. Frankel's telephone bill indicated that he was using his computer modem to dial into work at 7:26 a.m., the exact time the dispatcher received the call. The State did not dispute that the call was triggered by some accidental, non-human means, probably related to Frankel's computer use.

Frankel was charged with possession of marijuana and operation of a premise, place or facility used for the manufacture of marijuana. The trial court granted Frankel's motion to suppress related to the discovery of the marijuana evidence. In rejecting the application of the emergency aid exception as a justification for the warrantless search, the court found that Frankel did not dial 9-1-1, and that Frankel's nervous behavior, the busy signals received by the dispatcher, and the officer's honest and subjective belief that an emergency existed were not sufficient to establish probable cause to search the house.

The Appellate Division reversed the suppression order, holding that under the totality of the circumstances the officer had an objectively reasonable basis under the emergency aid doctrine to conduct a warrantless search of Frankel's house. 341 N.J. Super. 594 (2001).

The Supreme Court granted certification.

HELD: Under the emergency aid doctrine, the totality of the circumstances justified the officer's warrantless entry into the residence that originated the open-line 9-1-1 call. The Court affirms the judgment of the Appellate Division reversing the grant of the motion to suppress evidence.

1. Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, a search conducted without a warrant is presumptively invalid, and the burden falls on the State to demonstrate that the search is justified by one of the few exceptions to the warrant requirement. (P. 9).

2. The emergency aid exception to the warrant requirement is derived from the commonsense understanding that exigent circumstances may require public safety officials to enter a dwelling without a warrant for the purpose of protecting or preserving life. The Fourth Amendment and Article 1, Paragraph 7 do not demand that public safety officials stand by in the face of an imminent danger and delay potential lifesaving measures while critical and precious time is expended obtaining a warrant. The emergency aid doctrine only requires that public safety officials possess an objectively reasonable basis to believe -- not certitude -- that there is a danger and need for prompt action. That the perceived danger, in fact, may not have existed does not invalidate the reasonableness of the decision to act at that time. The scope of the search under the emergency aid doctrine is limited to the reasons and objectives that prompted the search in the first place. Evidence observed in plain view by a public safety official who is lawfully on the premises and is not exceeding the scope of the search will be admissible. (Pp. 10 -- 13).

3. The Court has adopted a three-prong test to determine whether a warrantless search by a public safety official is justified under the emergency aid doctrine. Under the test, the official must have an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or prevent serious injury; his primary motivation for entry into the home must be to render assistance, not to find and seize evidence; and there must be a reasonable nexus between the emergency and the area or places to be searched. (P. 12 -- 16).

4. An open 9-1-1 call, by its very nature, may fairly be considered an SOS call, a presumptive emergency, requiring an immediate response. However, the Court rejects the State's position that the receipt of a 9-1-1 open-line, abandoned or hang-up call alone gives the police the reasonable belief ground necessary to enter a home to investigate. Nor does the Court accept the defense position that such a call, followed by callbacks that only elicit busy signals and a visit to the home by an officer whose knock on the door goes unanswered, would never be sufficient to justify entry. Instead, the proper approach weighs the competing interests, including the privacy interests of the home v. the interest in acting promptly to render potentially life-saving assistance, under the totality of the circumstances standard. (Pp. 16 to 20).

5. A review of court opinions from other jurisdictions reveals certain general principles. A 9-1-1 call is tantamount to a distress call even when there is no verbal communication over the telephone to describe the nature of the emergency. The responding police officer is not required to accept blindly the explanation for the 9-1-1 call offered by the resident answering the door, but must base his decision on the totality of the circumstances. Courts are loath to second-guess decisions made in good faith with the intent of protecting life when the circumstances clearly reveal a legitimate emergency that will not abide delay. (Pp. 21 -- 25).

6. Here, the officer was able to point to specific articulable facts which, taken together with rational inferences, reasonably warranted his entry into Frankel's home under the emergency aid doctrine. On these facts, the officer was entitled to conclude that the person who attempted to make the 9-1-1 call may have been prevented from completing the call and was in need of emergency assistance. The Court finds that the officer had an objectively reasonable and good-faith basis to believe that an emergency was at hand. The Court finds also that the officer's motivation for entering the home was to ensure that a victim was not lying somewhere within the house. Moreover, the scope of the search was limited to the emergent mission. Both the basis for and the scope of the search were within constitutional bounds and, therefore, the motion to suppress should have been denied. (Pp. 25-27).

7. The Court gives no weight to the officer's testimony that a resident had never before declined to grant him entry to a home when he was responding to a 9-1-1-call, or that Frankel told him he could not enter without a search warrant and inquired whether he needed a lawyer. A homeowner has a right under our federal and state constitutions to insist that an officer obtain a warrant before entering and searching his house. The assertion of that constitutional right is not probative of wrongdoing and cannot be the justification for a warrantless entry into a home. (Pp. 27 to 30).

Judgment of the Appellate Division is AFFIRMED.

JUSTICE WALLACE, dissenting, disagrees with the Court's finding that there were reasonable grounds to believe an emergency existed in Frankel's home. Noting, among other factors, that there are countless reasons a telephone line might ring busy, Justice Wallace contends that once defendant denied making the 9-1-1 call and offered a reasonable explanation for the call, the police no longer had a reasonable basis to believe someone was in need of assistance.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, and ZAZZALI join in JUSTICE ALBIN's opinion. JUSTICE WALLACE filed a separate, dissenting opinion. JUSTICE VERNIERO did not participate.

The opinion of the court was delivered by: Justice Albin

Argued December 2, 2003

In this case, the Freehold Township Police Department received an open line 9-1-1 call from defendant's residence and dispatched a police officer to that address. Defendant advised the officer that he lived alone, did not make and could not account for the call, and would not consent to a search of his home so that the officer could satisfy himself that no one was in need of assistance. We must decide whether, under the totality of the circumstances, the officer's limited search of the home for a possible victim was justified under the emergency aid exception to the warrant requirement.

I.

At approximately 7:27 a.m. on June 21, 1999, Freehold Township Police Dispatcher Darlene Ecks received a 9-1-1 call from the home of defendant Gary Frankel, but no one was on the other end of the line.*fn1 In response, Ecks dialed back the number from which the open line call*fn2 had originated and received a busy signal.*fn3

Ecks then dispatched Officer Russell Gelber to defendant's house with the information that she had received a 9-1-1 call from that address and was unable to make contact with a resident. Officer Gelber arrived at defendant's house at approximately 7:46 a.m., and found a white sheet hanging behind the screen door blocking any view through the door or side windows. Defendant answered the knock at the door by poking his head out from behind the sheet, which he held back with one hand.*fn4 He appeared both surprised and nervous by the officer's presence. The officer informed defendant that he was responding to a 9-1-1 call and that the dispatcher was unable to make contact with anyone inside the house. With only his head visible, defendant told the officer that he did not dial 9-1-1. When Officer Gelber suggested that perhaps someone inside the house dialed the number, defendant became nervous, tripped over his words, and explained that he lived alone. In turn, defendant's "nervousness was making [Officer Gelber] nervous." Without a full view of defendant, and out of concern for his own safety, Officer Gelber asked defendant to step out from behind the sheet. He patted down defendant to ensure that he had no weapons. Officer Gelber then asked defendant if he could check inside the house "to make sure everything was okay." The officer wanted to satisfy himself that a domestic violence victim or an injured person in need of assistance was not inside. Defendant displayed a look of shock and panic at the request, asked the officer whether he had a search warrant, ...


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