On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-09-2153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt and Parrillo.
Pursuant to a plea bargain, defendant Darrell Smith pled guilty to third-degree possession of crack-cocaine and was sentenced to four years of probation, conditioned by time served. Defendant appeals from Judge Thomas McCormack's denial of his motion to suppress evidence found on defendant's person during the execution of a search warrant. On appeal, defendant advances three arguments: (1) defendant was improperly searched pursuant to the warrant, which authorized searching "any person(s) found within said premises deemed to be in control of the premises"; (2) the searching officers violated the knock and announce rule by smashing through the outside common entry door to the multi-dwelling premises in question; and (3) defendant's probationary sentence was improper and unjustified.
The search warrant was based upon an affidavit stating that a black male, approximately 30-40 years old and weighing 250 to 300 pounds, later identified as co-defendant Brogsdale, was selling cocaine from the third floor apartment of a multiple-dwelling residence. The affiant detailed two controlled buys made from Brogsdale in the afternoon and evening.
The warrant authorized a search of the premises and "any person(s) found within said premises deemed to be in control of the premises." The premises are a three story house with one apartment on each floor. A front entry door leads to a common hallway and staircase from which each of the apartments could be accessed. The target apartment on the third floor, according to PSE&G records, was occupied by Monie Lang. According to defendant, the police entered the premises by "ramming open" the outside common entry door, in the "front of the house."
We are bound by the judge's factual findings, especially considering they were based on credibility. State v. Locurto, 157 N.J. 463, 474 (1999). In his findings, the judge found that the police executed the warrant at 6:15 a.m. When they arrived at the third-floor apartment, the door was "wide open," allowing the police to simply walk inside, announcing their presence upon entering by stating "police, search warrant." When the police entered the apartment, defendant was seated on the couch, in his work clothes, next to Ms. Lang, who was in her nightwear. Brogsdale, the father of Ms. Lang's children, was in the bathroom in his underwear. The two children were in one of the bedrooms.
This situation is different from those cases, cited by defendant, where a warrant was executed, and the officers searched a person for merely being present at the scene. See State v. DeSimone, 60 N.J. 319, 321-22 (1972); State v. Carlino, 373 N.J. Super. 377, 394 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005); State in the interest of L.Q., 236 N.J. Super. 464, 472 (App. Div. 1989), certif. denied, 122 N.J. 121 (1990); State v. Hall, 253 N.J. Super. 84, 96 (Law Div. 1990), aff'd, 253 N.J. Super. 32 (App. Div. 1991). This case is different because the warrant authorized the search of persons deemed to be in control of the premises.
In this instance, defendant was present at an early hour while the registered owner was in her nightwear and Brogsdale was in his underwear in the bathroom. As Judge McCormick stated "I think [defendant] has sufficient nexus to that apartment at that point in time to be deemed by the police executing the warrant to have the ability to exercise control over the premises. Control is the operative word, not exclusive control . . . . He could have from where he was closed the door, slammed the door, locked the door or anything like that." We agree with these observations.
Under the warrant, the police were required to knock and announce their presence. The "ramming" of the common entryway to a multi-dwelling building does not violate the knock and announce rule. It is the door to the third-floor apartment in which defendant has a legitimate expectation of privacy. See, United States v. Acosta, 965 F.2d 1248, 1253 (3d. Cir. 1992); State v. Domicz, 188 N.J. 285, 301-02 (2006). That door, the judge found was wide open. Therefore, according to the judge, "there [was] no reason to knock, they announced their presence, they went in and executed the warrant." We, again, agree with the trial court that nothing more was constitutionally required.
A search based upon a properly obtained warrant is presumed valid. State v. Sullivan, 169 N.J. 204, 211 (2001). After examining each of defendant's arguments seeking to rebut the presumption of validity, we find them all wanting, and conclude that defendant has not established the unreasonableness of this search and seizure. See State v. Valencia, 93 N.J. 126, 133 (1983).
Finally, our review of defendant's sentencing argument leads us to conclude that it is without merit. We find no error in the probationary sentence that was imposed. ...