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State v. Bogan


February 11, 2008


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-10-1378.

Per curiam.



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 that it was his father. Sergeant Donato then requested to speak with the father.

The record is somewhat inconsistent on what happened next. Officer Berge testified that Wally gave Sergeant Donato permission to talk to his father. However, Wally did not confirm this. Officer Berge further testified that Sergeant Donato stepped into the kitchen to talk to Wally's father. Before getting on the phone Sergeant Donato contends that he performed a visual safety sweep of the area. As he did so, Sergeant Donato allegedly spotted defendant through a door to the bedroom that was ajar. Defendant was lying on the bed. The sergeant further contended that he then pushed the bedroom door fully open and summoned Sergeant Dennis and Officer Berge to enter while he talked to the father.

In contrast, Wally testified that Sergeant Donato immediately began talking on the phone to his father. Sergeant Donato then asked Wally if he could continue the conversation somewhere private, while pointing at the bedroom. According to Wally, he refused Sergeant Donato's request telling Sergeant Donato, "no, you can't go in there." Nonetheless, Sergeant Donato ignored Wally, pushed open the bedroom door and discovered the defendant lying on the lower bunk of a bunk bed.

The other police officers entered the apartment and the bedroom where they observed defendant lying on the lower bunk of a bunk bed. Although defendant was informed that he was not under arrest, he was nonetheless advised of his Miranda*fn3 rights. Immediately thereafter, defendant was questioned about his name, his date of birth and other identifying information. Defendant initially identified himself as "Anthony Green," born on February 16, 1978. Officer Berge then asked defendant if he ever used the name Bogan. Defendant replied that Bogan was his "maiden" name. The officers then passed on the name "Anthony Bogan" to their dispatcher. The dispatcher was able to locate defendant in the police data base. He informed the officers that defendant's actual birth date was February 18, 1978, and that defendant had outstanding arrest warrants issued by the municipal court.

After the dispatcher's information was received, defendant was immediately read his Miranda rights again. He was placed under arrest, and the police began to move him out of the apartment toward their squad cars. While defendant was being moved, the police told him why he was being arrested. When the police then questioned defendant about his whereabouts that day, he gave conflicting responses. He first stated that he had not left the apartment. He then stated that he had walked to a local store. Eventually, he stated that he had driven to the store in the gray car. The police asked if he met anyone during his store errand, but without making any reference to the girl. At this point, defendant admitted to the police that he had given Kathleen a ride back to the apartment. Defendant explained that after he brought Kathleen to the apartment, she left suddenly. Without any further prompting by the police, defendant then denied touching Kathleen, claiming that he "thought she was [eighteen] years old."

After defendant was brought outside by the police, he was observed by Kathleen. She identified defendant as the same man who had taken her to the apartment.

The State presented several witnesses at trial, including Kathleen, who recounted how she had been walking to school, had accepted a ride from the man in the gray car, had been driven by that man to the apartment, and what happened once she got inside the apartment. She contended that after the man stopped touching her, he fell asleep. Once he had dozed off, Kathleen got up and saw Wally, who sometimes played with her brother, sitting in the living room playing a video game. Kathleen left the apartment and walked toward the mill company, where she encountered Lyons.

The defense's theory at trial was that Kathleen had fabricated her account of being touched by defendant with her clothes on, because she was angry with defendant for not allowing her to stay in the apartment instead of going to school. In support of that theme, defense counsel got Kathleen to acknowledge on cross-examination that by the time she left for school that morning, she knew she was going to be late. Kathleen also acknowledged that she had already been late for school about fifteen times that year, and had been punished for her tardiness. She also admitted that defendant did not make her come into the apartment. She denied, however, that she had wanted to cut school that day. She also denied that she was angry at defendant for not letting her stay with him while school was in session, although she did slam the door when she left the apartment.

In his own testimony, Wally recounted that he had stayed home himself from school that day because his family was about to leave on a trip to Virginia. Wally stated that he had stayed up late the night before, playing a video game in the living room, where he fell asleep. Wally stated that his mother, who was defendant's girlfriend, had left for work that morning before he woke up. At some point that morning, Wally heard someone talking on the phone. Wally then fell asleep again. When he awakened a second time, he played a video game for awhile. Then defendant came into the kitchen and asked Wally to go to the store for some milk.

According to Wally, he went to the store while still in his pajamas, returned with the milk, and went back into the living room to resume his video game. As he sat there playing the game, Wally caught a glimpse of a person wearing a black coat leave the apartment. Ten to fifteen minutes later, Wally saw defendant head outside, go to the street corner, and look in both directions. Defendant then briefly went into the car and returned to the apartment. Other than his glimpse of the person wearing the black coat, Wally did not testify that he saw any person in the apartment apart from defendant. Nor did he state in his testimony that he had witnessed defendant bring anyone into the apartment, or that he had overheard anything occurring in defendant's bedroom.

The State did not present any forensic proofs, such as a DNA sample or fingerprints from the apartment, at trial. However, the State did present through Officer Berge the inculpatory statements made by defendant after he was encountered by the police in the apartment, including his false assertion that his last name was "Green," as well as his allegedly unprompted utterances that referred to Kathleen, and defendant's perception that she was eighteen. Defendant did not testify himself, nor did he call any witnesses.

Following their deliberations, the jury found defendant guilty of all four counts of the indictment, specifically third-degree luring or enticing a child, contrary to N.J.S.A. 2C:13-6 (Count One); third-degree sexual contact, contrary to N.J.S.A. 2C:14-3b (Count Two); third-degree hindering apprehension, contrary to N.J.S.A. 2C:29-3b(1) (Count Three); and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (Count Four). After appropriate mergers, defendant was ultimately sentenced to an eight-year term on Count One, with a four-year concurrent sentence on Count Three.

In this ensuing appeal, defendant principally argues that his pretrial motion to suppress his oral statements should have been granted because no recognized exception to the Fourth Amendment warrant requirement justifies the police's warrantless entry into the second-floor apartment. Defendant further argues that the trial judge's jury instruction on the luring count was erroneous because it failed to advise the jury that it needed to be unanimous as to defendant's alleged criminal purpose in his interactions with Kathleen on the street and later in the apartment. Defendant also maintains that the trial judge should have granted his motion for a mistrial after jurors observed Kathleen sobbing in the courthouse hallway in her mother's arms while being comforted by the prosecutor and her assistant. Lastly, defendant submits that his eight-year custodial sentence was excessive.


Under the Fourth Amendment of the Federal Bill of Rights and under Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981). It is undisputed in this case that the police entered the apartment of defendant's girlfriend without a warrant.

The warrant requirement has been enforced with particular stringency to police entries into residential dwellings. Kyllo v. United States, 533 U.S. 27, 31, 127 S.Ct. 2038, 2041, 150 L.Ed. 2d 94, 100 (2001); see also State v. Sullivan, 169 N.J. 204, 210 (2001). The home "'deserve[s] the most scrupulous protection from government invasion.'" State v. Hempele, 120 N.J. 182, 200 (1990) (quoting Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 1741, 80 L.Ed. 2d 214, 224 (1984) (Powell, J., concurring)). Our courts therefore have long recognized that "'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" State v. Hutchins, 116 N.J. 457, 463 (1989) (quoting United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed. 2d 752, 764 (1972)).

Defendant contends that the police entry was not justified by any recognized exception to the constitutional warrant requirement. Consequently, he argues that the trial court erred in failing to suppress his oral statements to the police in the apartment, contending that the statements amount to inadmissible "fruits of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 416, 9 L.Ed. 2d 441, 454 (1963); see also State v. Johnson, 118 N.J. 639, 653 (1990).

As a preliminary matter, we address the State's argument, one it raises for the first time on appeal, that defendant lacked a reasonable expectation of privacy in the apartment and thus had no standing to object to the police entry. The State argues that defendant was a mere guest in the apartment and had no reason to expect a zone of privacy in that location. These contentions are unpersuasive.

Although a person who is "merely present with the consent of the householder" may lack a reasonable expectation of privacy in the premises, "an overnight guest in [the] home may claim the protection of the Fourth Amendment." Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 473, 142 L.Ed. 2d 373, 380 (1998). "Staying overnight in another's home is a long[-]standing social custom that serves functions recognized as valuable by society." Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 1689, 109 L.Ed. 2d 85, 94 (1990). Such guests "are entitled to a legitimate expectation of privacy despite the fact that they have no legal interest in the premises and do not have the legal authority to determine who may or may not enter the household." Id. at 99, 110 S.Ct. at 1689, 109 L.Ed. 2d at 95. The question boils down to whether or not the guest's expectation of privacy in the residence is a reasonable one. Id. at 95-96, 110 S.Ct. at 1687, 109 L.Ed. 2d at 92; see also State v. Stott, 171 N.J. 343, 354 (2002).

The record reflects that defendant had lived at the apartment for three years. He resided there with his girlfriend and her son, Wally. The girlfriend testified that defendant had slept there on the very night before the police entered the apartment without a warrant. Given these circumstances, we are satisfied that defendant had a reasonable expectation of privacy in the premises, and thus possessed standing to challenge the constitutionality of the police officers' invasion.

The sole witness at the suppression hearing was Officer Berge, who detailed the series of events that led the police to the apartment building and ultimately inside the apartment and the bedroom where defendant had been sleeping. In his testimony, which the trial judge generally found to be credible, Officer Berge explained that the police had gone to the premises after obtaining Kathleen's description of her attacker, and she pointed out the location. The officer recalled that the police rang the doorbell when they arrived and announced their presence. At this point Wally, clad in his pajamas, came downstairs and greeted them. Officer Berge described Wally as "a normal sized juvenile" who did not seem "very large or very small at the time."

Although Wally permitted the police officers to enter the first floor of the building and, thereafter, led them up to his second-floor apartment, the State does not argue that the officers entered with sufficient consent to satisfy the Fourth Amendment. This concession is appropriate, given Wally's status as a minor, as well as the fact that Officer Berge admitted on cross-examination at the suppression hearing that he did not tell Wally that he did not have to allow the police into the residence, or that Wally did not have to speak with them. See State v. Johnson, 68 N.J. 349, 353-54 (1975) (State has burden of showing that person giving consent to search was aware of the right to refuse); State v Todd, 355 N.J. Super. 132, 139 (App. Div. 2002) (same). Additionally, we note that Wally did initially resist letting the police into his family's living quarters on the second floor, stating that he doubted that his mother would want the police to come inside.

Valid consent to enter and inspect the premises being absent, the State relies instead upon two other*fn4 exceptions to the Fourth Amendment warrant requirement: (1) the "exigent circumstances" doctrine, and (2) the "community caretaking" exception. The trial judge accepted each of these justifications in denying defendant's motion to suppress. Although we defer to the trial judge's finding as to the credibility of Officer Berge, we differ with his legal conclusion that the State met its burden to establish either of these two exceptions to the warrant requirement.

The exigent circumstances exception permits warrantless searches under circumstances that "'preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both.'" Stott, supra, 171 N.J. at 358 (quoting State v. DeLuca, 168 N.J. 626, 632 (2001)). Police officers who perform a warrantless search based on this exception must base their decision on "more than mere speculation." Ibid. In objectively determining whether exigency exists in a given instance, courts consider many factors, including: the degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination. [DeLuca, supra, 168 N.J. at 632-33.]

With respect to the element of probable cause, within this multi-factor assessment, it is readily apparent that the police possessed such probable cause to arrest defendant when they arrived at the apartment. The putative victim, Kathleen, had just described to the police the criminal act occurring inside the apartment earlier that same morning. The gray Audi parked outside the premises matched her description. The vehicle was registered to a resident at that address. Moreover, the police were advised by a dispatcher that there were outstanding municipal warrants for defendant's arrest. Defendant does not contest that these and other factors furnished probable cause for his arrest. Instead, he challenges the alleged existence of an emergency.

In concluding that there were exigent circumstances that excused the police from obtaining a search warrant to enter the premises, the trial judge expressed concerns that another child might have been in danger inside the premises. The judge decided that the situation gave rise to an inference that there "could be another juvenile upstairs who was being held, in effect, almost as a hostage." The judge, relying upon Officer Berge's testimony, noted that Wally, the boy who greeted the police at the front door, appeared "nervous" and had been "flip flopping" on where his mother was. The judge also noted the "adult voice" that police had heard yell down after they rang the front doorbell. This behavior led the judge to conclude that Wally might have been in danger, and was being "coached" by a perpetrator.

The trial judge rejected defendant's argument that the police could have safeguarded Wally outside the building or his apartment unit while attempting to obtain a telephonic search warrant from the court. The judge found that "[i]t wasn't a matter of getting [Wally] out of harm's way and leaving." Instead, the judge determined that the police could enter the apartment immediately to "mak[e] sure that there wasn't a second or third potential victim up there."

Although we appreciate the judge's overall safety-related concerns, the record in this case does not suffice to sustain the State's legal burden of demonstrating truly exigent circumstances that would excuse the police's failure to procure a search warrant. There was ample time to secure the premises and to request a search warrant by telephone. Defendant was not in flight. There was no contraband, such as narcotics, to be destroyed. The apparent victim, Kathleen, did not tell the police that defendant had wielded or possessed a weapon. She made no mention of any children in the apartment, other than Wally. She did not report that Wally had been physically harmed or had been threatened with any harm.

The judge placed considerable weight on the fact that Wally had appeared nervous to Officer Berge, and had given inconsistent answers to the police officers' questions about his parents' whereabouts. Yet Wally's responses are not all that remarkable for a thirteen-year-old boy's encounter with a group of police officers while he was at home and still clad in his pajamas. During the course of the suppression hearing, Officer Berge conceded that Wally did not "appear to have any ill effects and [he was] not complaining about being mistreated in any way." Indeed, the officer's contention that the police were fearful of Wally's safety is undercut by the fact that the officers allowed Wally to go from a position of safety on the first floor of the building and to re-enter the apartment where the alleged perpetrator of a sexual attack on a minor may still have been present.

The supposition that there may have been other minors in danger within the apartment is not founded upon any competent proof in the record. Neither Kathleen nor Wally stated to the police that there were other children upstairs. The police had no information that other girls or boys were present. They heard no cries for help, nor any threats emanating from the apartment. Wally's only sibling, his sister, was then at school.

In sum, mindful of our duty to enforce the Constitution, we cannot embrace the trial judge's conclusion that sufficient exigent circumstances were present here to justify a warrantless police entry into the apartment. The scenario is similar to the facts in Stott, supra, in which the Supreme Court rejected the prosecution's argument that the police had exigent circumstances to enter a room without a warrant because they "'could not exclude the possibility of a rogue employee entering and retrieving the contraband'" in the room. Stott, supra, 171 N.J. at 359 (quoting State v. Stott, 335 N.J. Super. 611, 622 (App. Div. 2000), rev'd, 171 N.J. 343 (2002)). The Court held "the possibility that a 'rogue employee' could have tampered with the evidence to be too speculative to form a well-grounded or objectively reasonable basis on which to excuse the warrant requirement." Id. at 361.

That same logic applies here. There is simply no proof that there were other juveniles in the apartment at risk of harm. None of the objective information received by the police, including statements from the apparent victim and their own observations, reasonably supported this hypothesis.

The police also had no information supporting a "reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene." DeLuca, supra, 168 N.J. at 633. Moreover, there could have been no reasonable belief that defendant was an escape risk where the police were at the location and standing in the open doorway of the second-floor apartment. See id. at 632.

Alternatively, the "community caretaker" doctrine also fails to justify the police's warrantless entry into the premises. This doctrine applies to police conduct that is "'totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" Stott, supra, 171 N.J. at 361 (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed. 2d 706, 715 (1973)). The doctrine has no logical application here, where the police came to the apartment building with the apparent minor victim of a reported sex crime, with a clear objective to advance their investigation of her allegations. None of the officers testified that they had come to the premises for the purpose of attending to the welfare of Wally, whom Kathleen knew by name and saw on the premises when she left. The police presence on the scene was not "totally divorced" from their investigation of a potential crime. Ibid. Although the police had a right to be concerned that Wally, a minor, was home and not in school, they were not acting that morning as self-deputized truant officers. Instead, they were there to further their investigation of a potentially very serious crime committed upon a teenage girl. We, therefore, reject the State's reliance upon this separate exception to the warrant requirement.

We are mindful that the police did issue Miranda warnings before defendant made his incriminating statements to them in the apartment. Nonetheless, the issuance of Miranda warnings did not break the causal chain of events precipitated by the police's illegal entry in the dwelling. The statements were the direct result of conversation initiated by the police with defendant immediately following the Fourth Amendment violation. See Johnson, supra, 118 N.J. at 653. Consequently, the statements were the fruit of an illegal search and should have been suppressed. Nor can we fairly regard the admission of these multiple inculpatory statements as mere harmless error. See State v. Macon, 57 N.J. 325, 338 (1971). A new trial is mandated, at which defendant's statements to the police shall be excluded from the jury.


Because defendant is entitled to a new trial due to our reversal of the suppression ruling, we need not address the remaining issues that he has presented on appeal. All of those issues may be mooted by a new trial. We do note in passing that at such a second trial, the judge should be sure to provide the jury with a specific unanimity instruction tied to each of the potential criminal purposes of his alleged luring of Kathleen into the apartment. See State v. Frisby, 174 N.J. 583, 597-598 (2002). Moreover, if Kathleen again becomes emotional in the courtroom, the judge and the court staff should take special care so that the jurors are not exposed to her tears in the corridors of the courthouse.*fn5 Lastly, we need not comment on defendant's eight-year sentence, except to note that the present record does not on its face suggest a misapplication of aggravating and mitigating factors that "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1985).

Reversed and remanded for a new trial, consistent with this opinion.

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