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State v. Penalber

May 25, 2006

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LOUIS PENALBER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-06-008931.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 18, 2005

Before Judges Skillman, Axelrad and Levy.

This appeal involves the validity of a warrantless entry into a residence to make an arrest. The trial court held that the entry was valid under the "consent-once-removed" doctrine, under which consent to a police officer's initial entry into a private place may provide authorization for a subsequent entry if the separate entries can be viewed as components of a single, continuous and integrated police action. Alternatively, the court held that the warrantless entry was valid because the police observed the arrestee through an open door before entering the residence. We conclude that the warrantless entry into the residence was not valid under either of the theories the trial court relied upon. Therefore, we reverse the denial of defendant's motion to suppress.

Defendant was indicted for possession of heroin, in violation of N.J.S.A. 2C:35-10a(1); possession of heroin with the intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); possession of heroin within 1,000 feet of school property with the intent to distribute, in violation of N.J.S.A. 2C:35-7; possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); possession of cocaine within 1,000 feet of school property with the intent to distribute, in violation of N.J.S.A. 2C:35-7; distribution of cocaine, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); and distribution of cocaine within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7.

Defendant filed a motion to suppress the evidence against him. After an evidentiary hearing, the trial court denied the motion.

Defendant then pled guilty to the charge of possession of cocaine with the intent to distribute pursuant to a plea bargain that preserved his right to appeal the denial of the motion to suppress. Under the plea bargain, the State agreed to dismiss the other counts of the indictment and recommend that defendant be sentenced to a six-year term of imprisonment, with three years of parole ineligibility. The trial court sentenced defendant in conformity with the plea bargain.

Defendant's arrest and the discovery of the drugs that were the subject of his motion to suppress followed an undercover purchase of cocaine by Detective Flatley of the Elizabeth Police Department. Flatley and Detective Smith went to an apartment building in Elizabeth, dressed in street clothes, in the late afternoon of March 20, 2002. The apartment building contained two units, one on the first and the other on the second floor, with common access through an interior hallway. A stairway led from the hallway to the second floor apartment.

Flatley approached the front door, which was made entirely of glass, while Smith stayed on the sidewalk. Looking through the door into the hallway, Flatley saw a man later identified as Carlos Lescano engaged in a drug transaction with an unidentified purchaser. Omar Garcia, who Flatley knew to be a resident of the second floor apartment, motioned to Flatley to remain outside until the sale to the other purchaser was completed.

When the other purchaser left, Garcia motioned Flatley to enter the hallway. Flatley then purchased two vials of cocaine from Lescano. While this transaction was being conducted, Flatley saw a third man on the second floor landing, looking down to the first floor hallway.

After Flatley purchased the two vials of cocaine, he and Smith, together with the backup officers involved in the investigation, returned to the police station. The officers discussed Flatley's undercover purchase and decided to return to the apartment building to arrest Lescano.*fn1 According to Flatley, he expected Lescano still to be in the hallway where Flatley had purchased the drugs.

Flatley and five other officers returned to the apartment building between thirty and forty-five minutes after Flatley had made the undercover purchase from Lescano. The officers walked through the unlocked front door into the hallway, which was empty, and then walked up the stairs to the second floor. When the officers reached the top of the stairs, the door to the apartment was open and they could see Lescano sitting in a chair in the living ...


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