On appeal from the Superior Court of New Jersey, Law Division, Essex County, 06-02-00382.
The opinion of the court was delivered by: Lintner, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2007
Before Judges Lintner, Parrillo, and Sabatino.
On February 7, 2006, an Essex County Grand Jury charged defendants, Altariq Laboo, Mark Mells, and Lamar Moon, with seventeen counts of conspiracy, armed robbery, and weapons offenses. We granted the State's motion for leave to appeal, R. 2:2-4, following a Law Division judge's decision suppressing evidence seized by the State in a search occurring on April 7, 2005. We now reverse the order suppressing the evidence and remand for further proceedings.
The substantially undisputed facts were developed at a hearing held on January 19, 2007, at which the only witness was Lieutenant David Wood of the Newark Police Department Major Crimes Task Force. The indictment grew out of a string of armed robberies committed by three individuals, occurring on the streets of Newark between 8:00 a.m. and 9:00 a.m. on April 6, 2005. In each incident, two of the perpetrators, brandishing weapons (handguns), approached the victims and robbed them of various items. Among the items taken were two cell phones. The next day, a Superior Court Judge signed a Communications Data Warrant permitting the use of a mobile electronic tracking device.
At approximately 2:00 p.m. on April 7, 2005, Wood, two U.S. Marshals, Captain Melody of the prosecutor's office, and Detective Marques Car of the police department tracked the cell phone to a three-family house at 86 North 11th Street, situated in a high-crime area.*fn1 They were able to track the cell phone using a U.S. Marshal mobile unit equipped with a tracking/homing device, which can track and locate cell phones by the use of cell phone towers. It took them approximately thirty minutes to find the street location using the tracking device. John Cuff, one of the Marshals, entered the building with Wood and Melody while the other two officers remained outside, where, according to the testimony, many people had gathered, having become aware that a tracking device was being used.
Operating a handheld tracking device, Cuff and the officers were led to the second-floor apartment. Standing in a small hallway on the second floor, Wood knocked on the door and announced he was a police officer. From within the apartment, Wood heard a voice he believed to be a young female yelling and then a man's voice saying, "shut-up, shut-up, 5-0," which he described as a "layman's term for police." He then heard scurrying in the apartment. Knowing they were in a high-crime area, that the robberies involved males who were armed with handguns, and believing a teenage female was in the apartment, the officers "shouldered" the door and entered the apartment with their weapons drawn. After entering the apartment, the officers found items on the living room table that were identified as having been taken during the robberies. The three defendants were in the apartment. As the officers entered, Moon ran into the bedroom where the officers found a silver handgun on the bed. The stolen cell phone was found on one of the two teenage girls who were in the apartment, after Wood dialed the number from his cell phone.
Conceding on cross-examination that they did not have any reason to believe that the suspects were either fleeing or destroying evidence, Wood gave the following explanation for their decision to forcibly enter the apartment out of safety concerns for themselves and the public:
The robberies that morning involved at least four males that were armed. The female voices sounded young, t[w]o teenage females. My biggest fear at that point was, there was no way to retreat, and we had to enter at that point. Now being discovered as the police, for simple safety of the public and the females in the apartment.
He also explained that with the involvement of a gun "there's always a potential for a hostage or a barricade situation . . .
[o]r somebody getting hurt . . . ."
Granting defendants' motion, the judge found that the circumstances presented were "not the type of spontaneous and unforeseeable [circumstances] on which the exigency exception to the warrant requirement is predicated." Keying on the short time it took for the officers to locate the three-family house and that they had every reason to expect that the tracking device would lead them to a private home where they would find the cell phone and the culprits, the judge determined that the circumstances were more particularly suited for the issuance of a telephonic search warrant. Noting that the officers were prepared with a handheld device in addition to the device in the Marshal's vehicle that tracked the signal to the building, the judge found that the officers were aware of the potential need to enter a multi-family building. He concluded that "the circumstances attending the intrusion were neither sudden nor unanticipated" and that under the circumstances a telephonic warrant should have been sought as it could ...