July 16, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASHON MYERS, A/K/A RASHON MORRELL MYERS, A/K/A RASHON WATTS MYERS, A/K/A JASON M. MYERS, A/K/A RASHON D. MYERS, A/K/A RASHON M. MYERS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-05-0497.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2007
Before Judges Weissbard and Payne.
Defendant, Rashon Myers, appeals from his conviction entered upon a negotiated guilty plea to second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant's plea followed the denial of his motion to suppress evidence, which was preserved for appellate review pursuant to R. 3:5-7(d). In accordance with his plea agreement, defendant was sentenced to a five-year prison term with one year of parole ineligibility. Appropriate penalties and assessments were also imposed.
On appeal, defendant presents the following arguments for our consideration:
THE TRIAL COURT ERRED IN FINDING EXIGENT CIRCUMSTANCES TO SUPPORT THE WARRANTLESS ENTRY OF THE HOTEL ROOM PRIOR TO THE ARREST OF ITS OCCUPANTS.
EVEN IF THE EXIGENT CIRCUMSTANCES PERMITTED THE WARRANTLESS ENTRY FOR OFFICER SAFETY, THE RIGHT TO SEARCH WITHOUT A WARRANT EXPIRED THE MOMENT THE OCCUPANTS OF THE HOTEL ROOMS WERE ARRESTED IN THE HALLWAYS.
THE TRIAL COURT ERRED IN HOLDING THAT THE MERE FACT THAT THE ITEM SOUGHT WAS A WEAPON JUSTIFIED THE WARRANTLESS SEARCH OF THE VANITY IN THE BATHROOM.
The suppression hearing on March 18, 2005, produced a lengthy transcript that revealed the following facts.
On March 28, 2003, at approximately 4:00 a.m., two women flagged down an Elizabeth Police Department patrol car in the area of Flora Street at the intersection of Jackson Avenue. The women, Latisha Bolden and Shannon Smith, informed Police Officers Alvarez and Colon that they had just been the victims of a home invasion at 1251 Clinton Place, sometime between 10 p.m. and 4 a.m.
The officers escorted the two women to the scene of the alleged robbery and found the house empty. The officers took the women to police headquarters and formally interviewed them.
During the interview, the women explained that earlier in the day, Jason Myers invited them to his home at 1251 Clinton Place. They arrived at approximately 10:00 p.m. Jason, defendant Rashon Myers (his brother), and another male known as "L" were at the house when they arrived. Subsequently, they heard a knock at the door and, as the door opened, they observed two masked gunmen push their way into the apartment. The gunmen tied, gagged, and robbed them of their personal belongings. The gunmen threatened to shoot if the victims failed to cooperate.
After the gunmen left, the women observed Rashon and Jason retreat to a back room and retrieve handguns and money. The Myers brothers said they recognized the attackers and stated they were "going to take care of" them. Thereafter, the brothers called the Elizabeth Cab Company. Two taxicabs arrived. The women took one cab home; the brothers took the other cab.
Following the interview, the police contacted the cab company and confirmed the dispatches. They learned that the Myers brothers had been taken to the Marriott Hotel. The police obtained a description of the brothers - two black males with dreadlocks.
The police mobilized ten officers and, at approximately 4:45 a.m., all units were stationed at the Memorial Street Bridge, approximately two miles from the Hotel. From the bridge, Sergeant McCue dispatched a plainclothes unit to the Hotel. The undercover officers, and later Sergeant McCue, spoke to the desk clerk who advised that "two males with dreadlocks" arrived with two other people and checked into Rooms 422 and 424. The police corroborated this information through off-duty Elizabeth Police Officer De Abreau, who worked security at the Marriott, and who had observed the four individuals arrive by cab. Police also learned via radio that both Rashon and Jason Myers had active warrants for their arrest and that they were both prior convicted felons. The nature of the convictions, however, and the details of the warrants could not be provided at the suppression hearing.
The desk clerk advised the police that Rooms 422 and 424 were listed in the names of Jason and Rashon Myers. Both rooms were on the fourth floor. The clerk advised that the surrounding rooms were rented out.
The police proceeded to the fourth floor hallway, which Sgt. McCue described as "approximately 53 and a half feet" long "with rooms on both sides." There were no hallways off of the long hallway. No means of ingress or egress existed except an elevator and staircases. Concerned for the safety of the other guests, the police alerted all other occupants on the fourth floor by house phones located at the end of the hallway and evacuated the entire floor.
Once the floor was cleared, evacuated, and secured, McCue telephoned Room 422 and Room 424 from the house phone and requested that the occupants exit. He testified as follows:
Q: And how did you get the defendants out of the hotel room?
A: I called each room from the house phone.
Couple of the officers, I think four officers went down into the hallway after we had gotten the other guests out, and I called the rooms, and I spoke to whoever answered the phone, and I told them that I [would] like them to step out, we needed to speak to them.
Michelle Cunha exited one of the rooms, whereupon she was arrested and handcuffed. When asked whether anyone else was inside the room, she indicated that Rashon Myers was inside. The police handcuffed and arrested defendant "at the door or in the hallway."
At that point, Officers Mayers and MacNab entered the room. McNab testified as follows:
Q: And after the defendant was placed under arrest, what did you do?
A: After the defendant was placed under arrest, myself and Officer John Mayers entered the room to clear the room for any other occupants.
Q: And what did you find once you got into the hotel room?
A: Myself and Officer Mayers observed ammunition, bullets, on the counter to the kitchen, and upon clearing the room, we observed marijuana floating in the toilet.
Q: What else? Was there anything else found in the hotel room?
A: In the - marijuana in the bathroom.
Q: Marijuana in the bathroom. Is there anything else?
A: The - after a search of the room, the hotel room, I found a handgun.
Q: Where was the handgun found?
A: It was in a vanity in the bathroom area.
Meanwhile, at or about the time that the police arrested Cunha and defendant, the individuals in the second hotel room, Jason Myers and Lawrence Wooten, came out of that room and were also placed under arrest.
On March 22, 2005, Judge Donohue filed a written opinion, containing appropriate findings of fact and conclusions of law, denying the suppression motion. The judge found the essential facts as outlined above. He then found that the police had probable cause to arrest both defendant and his brother, and that exigent circumstances existed to justify the search of the hotel rooms without a warrant. As noted, defendant takes issue with both of these findings.
At the outset, we note our rejection of the State's argument that defendant possessed no expectation of privacy in Room 422. While the occupants' expectation of privacy in a hotel room is less than in a private residence, the occupants are nevertheless entitled to Fourth Amendment protections. State v. Alvarez, 238 N.J. Super. 560, 571 (App. Div. 1990). The State's argument that defendant's arrest on an outstanding warrant, which may have resulted in his overnight custody, stripped him of his privacy rights in the hotel room, is based on sheer speculation and finds no apparent support in the record.
That said, we have no doubt that probable cause existed for defendant's arrest based on the information provided by Bolden and Smith, which was, in part, independently corroborated. Specifically, that information supported a well-grounded suspicion that defendant possessed a weapon and intended to use it unlawfully against the persons who had committed the robbery. Further, it was determined that there were outstanding arrest warrants for defendant. The nature of those warrants was immaterial. In addition, as a convicted felon, it was an offense for defendant to possess a weapon. N.J.S.A. 2C:39-7. Thus, as Judge Donohue found, there was probable cause to arrest defendant based on the existing warrants and the facts relating to the present incident.
As a result, the police had every right to seek out defendant at the hotel in order to effectuate his arrest. Even if there had been no existing arrest warrants, the circumstance of the two armed men holing up in adjacent hotel rooms in anticipation of revenge was a sufficient exigency to justify defendant's immediate arrest without a warrant. Alvarez, supra, 238 N.J. Super. at 569-72. This was not a "police-created" emergency. See State v. Hutchins, 116 N.J. 457, 469-73 (1989).
Thus, entry into the hotel room to effectuate an arrest was justified. State v. Cleveland, 371 N.J. Super. 286, 301 (App. Div.), certif. denied, 182 N.J. 148 (2004). See Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed. 2d 639, 661 (1980). Here, defendant was arrested outside the hotel room proper, even if possibly in the doorway. Once having made that lawful arrest, the police were, in these circumstances, permitted to make a "protective sweep" of the room to ensure that no one else was within who might pose a danger to the safety of the officers or other hotel occupants. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed. 2d 276, 281 (1990); State v. Lane, ___ N.J. Super. ___, ___ (App. Div. 2007) (slip op. at 24). Given the information that defendant had been armed and that he was not armed when arrested, the officers had a right to check the room in order to determine if someone else was inside with access to defendant's weapon. Because of the presence of Cunha in the room with defendant, the possibility existed that other persons unknown to the police had also accompanied defendant to the hotel. As Professor LaFave has said, where the arresting officers are not possessed of concrete information tending to show that other persons are presently in the premises entered, the dominant consideration is the seriousness of the criminal conduct for which the arrest was made, considering all the known circumstances.
[3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.4(c), at 377 (4th Ed. 2004).]
We conclude that the conduct which the officers had reason to believe defendant was engaged in was of sufficient seriousness to justify the quick, limited sweep of the small room. The fact that defendant was not arrested in the room did not obviate the need for a protective sweep. LaFave, supra, § 6.4(c), at 383 n.89.
During the course of their sweep of the room, while in a place they had a right to be, the officers saw marijuana and, more importantly, loose bullets in plain view. The bullets reinforced the likelihood that a gun remained inside the room, albeit not visible. Unquestionably, there was probable cause to believe that a gun was in the room. That conclusion brings us to the only issue of real substance in the case - whether the warrantless search for the gun, found inside the vanity, was permissible under the exigent circumstances doctrine, or whether it was necessary for the police to secure the room and seek a search warrant.
Exigent circumstances are highly dependent on the facts of a given case. State v. DeLuca, 168 N.J. 626, 632-33 (2001). In State v. Hutchins, 116 N.J. 457, 465-66 (1989), the Supreme Court set out a non-exhaustive list of factors to assess the reasonableness of police action based exigent circumstances so as to excuse a warrantless search of private premises. The factors were drawn from Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970) and United States v. Rubin, 474 F.2d 262, 268-69 (3d Cir. 1973). See also Alvarez, supra, 238 N.J. Super. at 568, 571. We see no need to repeat the listing here.
Despite defendant's arguments that the room could have been secured to prevent anyone from obtaining possession of whatever weapon was likely concealed therein, we conclude that there was a sufficient exigency to justify the very limited search that revealed the weapon. There was overwhelming probable cause to believe that a gun was in the room and, given the diminished expectation of privacy in a hotel room, a place designed for only temporary occupancy, we are satisfied that the police did not violate defendant's rights by failing to seek a warrant to search for a gun in closed drawers in a room that had already been legitimately entered and subjected to a search in the form of a protective sweep. We conclude such a search was not unreasonable, that being the touchstone for the search and seizure protections embodied in our State and federal constitutions. See United States v. Shannon, 21 F.3d 77 (5th Cir.), cert. denied, 513 U.S. 901, 115 S.Ct. 260, 130 L.Ed. 2d 180 (1994); United States v. McKinney, 477 F.2d 1184 (D.C. Cir. 1973). While State v. Wright, 213 N.J. Super. 291 (App. Div. 1986), certif. denied, 118 N.J. 235 (1989), and State v. Slobodian, 120 N.J. Super. 68 (App. Div. 1970), certif. denied, 62 N.J. 77 (1972), cited by the motion judge in his opinion, are factually distinguishable, the broad principles emanating from those decisions do provide some additional support for our conclusion that exigent circumstances were present in this case.
We emphasize that our ruling would likely have been different if the premises searched were a private residence, as in State v. Stupi, 231 N.J. Super. 284, 288-89 (App. Div. 1989).
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