On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-10-1378.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges Graves, Sabatino and Alvarez.
Defendant Anthony Bogan appeals his 2005 conviction of third-degree luring of a child and other related offenses. During the course of his jury trial, the court admitted certain incriminating statements that defendant had made to the police after they entered his girlfriend's apartment without a warrant. Because the warrantless entry was unconstitutional, the trial court erred in denying defendant's pretrial motion to suppress the fruits of that entry. Consequently, we vacate defendant's conviction and remand for a new trial.
The State offered the following narrative of events at the pretrial suppression hearing and at defendant's ensuing trial. We note that defendant contests various aspects of the State's proofs, and, in particular, denies that he engaged in any improper contact with the alleged victim. In any event, we present the State's factual version for background purposes, without prejudice to the jury's fact-finding at a new trial.
On May 27, 2004, Anne Marie Lyons, a receptionist at Passaic Mill Work on Central Avenue in Passaic, observed a fourteen-year-old girl, Kathleen B.,*fn1 standing on the sidewalk crying. Lyons went out to the girl and asked her to come inside. Kathleen did so and made a phone call, during which Lyons overheard her say that someone had tried to touch her. Lyons asked Kathleen to describe what had happened. The youth stated that she had been offered a ride to school by a man, who instead took her to an apartment and tried to touch her. This prompted Lyons to call the Passaic Police Department.
Passaic Officer Raymond Rodriguez responded to the Passaic Mill Work, where he spoke with Lyons and Kathleen. Kathleen told Officer Rodriguez that she had been offered a ride by a man who then "sexually groped her." Because the apartment was located nearby in Clifton, Officer Rodriguez and his supervisor, who had since arrived at the scene, decided to report the matter to the Police Department in Clifton.
Shortly thereafter, Sergeant Joseph Dennis and Officer Stephen Berge of the Clifton Police Department arrived at the scene. Kathleen told Officer Berge that she had been picked up by a friend of her mother's, whom she knew as "Boge." Kathleen provided a detailed description of the man. She stated that he picked her up in a gray car, then drove her to a second-floor apartment on Russell Street in Clifton. The man brought her up to the apartment, where he touched her breasts and vagina over her clothing. Kathleen further stated that she had seen a boy in the apartment. She may have also given the police the boy's full name, Wally Vance.*fn2
At this time, Officer Berge, Officer Massimo Guerriero, Sergeant Dennis and Kathleen drove to the Russell Street address. Once there, Kathleen identified the gray car that she was picked up in, which was parked in front of the apartment. A subsequent registration check of the vehicle, a gray Audi, indicated that it was registered to a woman who lived at the address. The building was two stories high, with a non-residential use on the first level and the apartment in question on the second story. The officers approached the building and either rang a doorbell or knocked to attract the attention of someone in the second-floor apartment. In response, what sounded to the officers like an adult voice yelled out of a window, asking who was there. The officers replied that it was the Clifton Police.
Within about two minutes a boy who identified himself as Wally Vance answered the downstairs door. Wally appeared to be about twelve or thirteen years old. The police asked Wally if anyone was home with him. Wally stated that no one was home with him, but Officer Berge found him to be "unsure and nervous." According to the officer, Wally's answers were not "crisp."
During the course of their conversation, the officers asked Wally if they could go upstairs. The officers did not advise Wally that he could decline their request. Wally then cooperatively led them inside and upstairs to the landing in front of the doorway to the second-floor apartment. The door to the apartment was open. Wally went in, and stood just inside the apartment while the officers stood just outside of it. From this vantage point, the police were able to see into the apartment. They observed a kitchen, a main room and several doors leading elsewhere inside.
Detective Sergeant Nick Donato from the Clifton Juvenile Detective Bureau then arrived at the scene. At about the same time as Sergeant Donato arrived, Wally received a phone call from his mother. While Wally responded to the call, the other officers took the opportunity to brief Sergeant Donato on the information they had obtained. According to Wally's testimony, he told his mother that he would have to call her back, and hung up the phone.
When Wally got off the phone, the police asked him if they could enter the apartment and look around. Wally resisted, stating that he did not think his mother would want them inside. The phone then rang a second time. After Wally answered it Sergeant Donato asked Wally if it was a parent. Wally stated ...