August 15, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM O. HUDSPETH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-04-837.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 7, 2007
Judges Sabatino and Baxter.
Defendant William O. Hudspeth appeals from his May 5, 2006 conviction on a charge of third degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b). Although the conviction resulted from defendant's negotiated plea of guilty, he nonetheless preserved, pursuant to Rule 3:5-7(d), the right to challenge on appeal the court's denial of his motion to suppress the handgun. At the time of sentencing, Judge Garofolo sentenced defendant to a three-year term of probation, subject to the condition of either serving 180 days in the county jail or successfully completing a six month out-patient drug treatment program. The judge also imposed appropriate fines and penalties.
On appeal, defendant raises the following claims:
I. THE COURT BELOW ERRED BY NOT FINDING THAT AN INDIVIDUAL MAINTAINS A PERSONAL REASONABLE EXPECTATION OF PRIVACY WHILE RECEIVING LICENSED MEDICAL/THERAPEUTIC TREATMENT THAT REQUIRES FULL-BODY NUDITY.
II. OFFICERS WERE ALREADY IN THE BUILDING BEFORE ANNOUNCING THEIR PRESENCE, IN DIRECT VIOLATION OF THE JUDICIALLY MANDATED "KNOCK AND ANNOUNCE" PROVISION OF THE SEARCH WARRANT; THEREBY, THE COURT BELOW ERRED IN NOT SUPPRESSING EVIDENCE.
III. NOT ONLY DID THE POLICE FAIL TO KNOCK AND ANNOUNCE WHEN THEY ENTERED THE ESTABLISHMENT, BUT THEY FAILED TO KNOCK AND ANNOUNCE UPON ENTERING PATRONS' PRIVATE ROOMS, WHEREIN APPELLANT MAINTAINED A CLEAR SEPARATE EXPECTATION OF PRIVACY.
IV. THE SEARCH WARRANT WAS A "GENERAL WARRANT;" EVIDENCE SEIZED OUTSIDE THE SCOPE OF A WARRANT MUST BE SEVERED.
V. THE INTERROGATION OF APPELLANT WAS MADE WHILE HE WAS NOT FREE TO LEAVE AND, IN THE ABSENCE OF MIRANDA WARNINGS, HIS STATEMENTS MUST BE SUPPRESSED.
We have thoroughly reviewed the record and the applicable law, and conclude that defendant's claims are without merit. We affirm.
On January 28, 2005, a judge of the Superior Court issued a search warrant for Sun Massage/Sun Palace located at 1324 Atlantic Avenue in Atlantic City. The search warrant was issued based upon an affidavit establishing probable cause to believe that the premises were used to promote the crime of prostitution, in violation of N.J.S.A. 2C:34-1(b)(1) and (2). The warrant was issued with the requirement that before entering, police knock and announce their identity and the purpose for the search. The warrant authorized police to search for and seize any person found on the premises who was reasonably believed to be involved in illegal activity.
The warrant was executed on January 30, 2005, when a team of officers from the Atlantic City Police Department, posing as customers, entered the premises, which were open to the public. After entering through the public entrance, the officers proceeded to open a rear door, thereby permitting the other members of the search team to enter.
As Officer Annese Donnell and her fellow officers entered the building, they all announced themselves, yelling "police!".
As Donnell proceeded down the hallway to room number five, located ten feet from the rear entrance, she knocked on the door and again yelled "police," but found that the door was barricaded. After again yelling "police," she forced her way into the room, at which time she observed a nude female standing behind the door, trying to force it shut. Standing in the middle of the room next to the female was a nude male, later identified as defendant.
As soon as Donnell had forced her way into the room, and with defendant three or four feet away from her, she immediately observed him grab his pants and bend down, reaching to pick up what appeared to be an object on the floor underneath the massage table. Donnell ordered defendant to halt, put his pants on and step away from the area of the massage table. Once he had done so, Donnell bent down and retrieved a wallet and black ankle holster.
When Donnell picked up the ankle holster, she saw that it contained a loaded 9mm Glock handgun, and asked defendant if he was a police officer. Defendant replied by stating that he was not, and volunteered that he was in the process of obtaining a permit for the gun. Defendant was arrested for carrying a gun without a lawful permit.
The judge denied defendant's motion to suppress the handgun, finding that defendant had no justifiable expectation of privacy to the particular room in which he was found because the search warrant encompassed the entire premises; that Donnell's observations reasonably supported her conclusion that prostitution was occurring; and that she properly seized the handgun to protect herself from the possible use of that weapon against her. The judge also denied defendant's motion to suppress defendant's statement that he did not have a permit to carry the gun. The judge found that because defendant had not been arrested and was not in custody at the time the statement was made, no Miranda*fn1 warnings were required.
On appeal, defendant argues that the court erred when it rejected his arguments that: (1) the officers violated the "knock and announce" provision of the search warrant by posing as customers and entering the building before announcing their presence; (2) he maintained a personal reasonable expectation of privacy while receiving therapeutic treatment that required full-body nudity; and (3) the search warrant was an impermissible "general warrant," which failed to state with particularity the persons or things to be seized.
A search conducted pursuant to a warrant is presumed valid. State v. Valencia, 93 N.J. 126, 133 (1983). The burden of demonstrating the invalidity of a search pursuant to a warrant is placed upon defendant. Ibid. Defendant must establish either that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable. Ibid. Here, defendant does not challenge the probable cause, instead he presents three arguments that the execution of the search warrant was unreasonable.
We turn first to defendant's argument concerning the "knock and announce" requirement of the search warrant. The evidence elicited at the suppression hearing demonstrated that police announced their presence as they entered through the rear door, and Donnell again announced her presence when she banged on the door of room number five. Accordingly, the "knock and announce" provisions were scrupulously observed. Even if we were to accept defendant's argument that he maintained a personal expectation of privacy in room number five, and that police were required to knock and announce their presence before entering, the record establishes that they did so.
We also reject defendant's argument that his Fourth Amendment rights were violated when officers who were part of the search team entered the premises while posing as customers. See State v. Ferrari, 323 N.J. Super. 54, 59 (App. Div. 1999) (holding no Fourth Amendment violation occurred where police, posing as prospective buyers of the defendant's home, viewed marijuana in plain view prior to obtaining a search warrant).
As to defendant's claim that the search warrant was an invalid "general warrant," Judge Garofolo properly rejected that contention. Contrary to defendant's assertions, the warrant authorized law enforcement to seize only those persons who were "reasonably believed to be involved in illegal activity." As the judge properly concluded, it was not a stretch to conclude that a naked man and woman in a dimly-lit room, where the woman struggles valiantly to prevent police from entering, were not engaged in therapeutic massage, but were instead involved in prostitution. The warrant described with particularity the persons to be seized, and Donnell's execution of the warrant stayed well within the confines of that warrant.
We likewise reject defendant's argument that the trial court erred when it denied his motion to suppress his statement to Donnell that he was in the process of obtaining a permit for his handgun. As Judge Garofolo properly found, defendant's statement was not the product of a custodial interrogation. We agree with the State that defendant's remark was spontaneous and was not made in response to any question posed by police concerning a permit for the weapon. Instead, defendant volunteered the statement in response to Donnell's question asking if he was a police officer. A freely volunteered statement is admissible notwithstanding the failure to advise a suspect of his right to remain silent. State v. Marks, 201 N.J. Super. 514, 528-29 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986). In the absence of interrogation, the administration of Miranda warnings is unnecessary, and a spontaneous, volunteered statement is admissible in evidence. Ibid. Here, defendant's spontaneous and volunteered statement was not the product of custodial interrogation and no Miranda warnings were required.