March 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARCUS HAYES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 97-01-0113.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 27, 2007
Before Judges Coburn, Fuentes and Chambers.
On this appeal, we review an order denying defendant's motion to suppress a handgun seized by the police.
A jury found defendant guilty of second degree possession by a convicted person of the handgun at issue. N.J.S.A. 2C:39-7(b)(1). The judge imposed an extended term sentence of imprisonment for twenty years with ten years of parole ineligibility. We affirmed, State v. Hayes, No. A-5624-97T4 (App. Div. Sept. 30, 1999), and the Supreme Court denied certification, State v. Hayes, 163 N.J. 75 (2000). Defendant filed a timely petition for post-conviction relief, alleging ineffective assistance of counsel for failure to move before trial for suppression of the handgun. His petition was denied on May 6, 2003, and he appealed. Another panel held that defendant had established a colorable Fourth Amendment claim and remanded for a plenary hearing on the suppression issue pursuant to State v. Johnson, 365 N.J. Super. 27 (App. Div. 2003). State v. Hayes, No. A-5313-02T3 (App. Div. Mar. 29, 2004) (slip op. at 7). That panel further indicated that the judge could consider the testimony presented at trial and such additional evidence on the validity of the search as the parties might offer. Id. at 9 (slip op.). The hearing began on December 2, 2004, with the taking of testimony offered by the State. On February 3, 2005, the matter was argued and the motion was denied. Defendant appeals, and we reverse.
The material facts are not in dispute. Around 5:00 p.m. on December 19, 1996, an anonymous person called the Atlantic City Police Department. The person said that Marcus Hayes was in apartment B at 1804 Missouri Avenue, that he was armed with a handgun, and that the police should be careful. The call was made from a location about half a block from the Missouri Avenue address. This information was immediately conveyed by radio to Detective Lionel Jones, who knew that there were numerous outstanding warrants for Hayes's arrest. He also knew Hayes personally, having arrested him on a number of occasions for drug offenses, and he was aware of intelligence gathered by the police department indicating that Hayes was usually armed.
Jones and four other officers immediately went to apartment B, which Jones knew was a small two-story structure with a living room, dining room and kitchen on the first floor and two bedrooms on the second floor. Jones approached the front door and looked through the living room window. He saw defendant, whom he recognized immediately, lying on the couch, watching television. A young child was on the floor. Jones knocked on the door, announced that it was the police, and told the lessee, Jamilla Davis, to open the door. Defendant looked at the door and ran upstairs. Jones forced the door open, and he and other officers ran upstairs. They found two young children in one bedroom and defendant hiding under a mattress in the other bedroom.
After a struggle, they handcuffed defendant and searched him and the nearby accessible area for the handgun without success. They brought defendant to the police car while one officer stayed with Davis and her children in the kitchen. After defendant was secured in the police car, Jones immediately returned to the apartment, where he or one of the other officers went to the living room and searched the couch. Under a pillow on the couch, the police found a fully-loaded .38 caliber semi-automatic handgun. The safety was off and the hammer was cocked, ready to be fired.
Davis lived in the apartment with her three children, ages one, four and six. Although defendant was not her boyfriend, he was a friend and frequent social guest in the apartment. On this occasion, he had arrived after noon and had spent the few hours before his arrest watching television from the couch or playing with the children in the living room. There was no evidence that he had ever been an overnight guest in the apartment.
Article I, paragraph 7 of the New Jersey Constitution, like the Fourth Amendment to the United States Constitution, guarantees freedom from unreasonable searches and seizures. But from time to time our State Supreme Court has afforded the citizens of this State with "greater protection against unreasonable searches and seizures than accorded under the Federal Constitution." State v. Johnson, ___ N.J. ___, ____ (2008) (slip op. at 14). Thus, as is relevant here, under the State Constitution defendants charged with possessory offenses have standing to challenge a search and seizure "regardless of whether they had an expectation of privacy in the area searched." Id. at 19-20 (slip op.) (citations omitted). Since Hayes had automatic standing to challenge the search, we turn next to the question whether the search of the couch violated the State Constitution.
Absent exigent circumstances, when the police enter a home owned by someone other than a defendant on the basis of an arrest warrant, but without a search warrant, the entry violates the owner's right to privacy under the Federal Constitution. Steagald v. United States, 451 U.S. 204, 211-16, 101 S.Ct. 1642, 1647-50, 68 L.Ed. 2d 38, 45-48 (1981). But here the police entry was warranted by exigent circumstances. United States v. Weems, 322 F.3d 18, 23 (1st Cir.), cert. denied, 504 U.S. 892, 124 S.Ct. 233, 157 L.Ed. 2d 167 (2003).
In Weems, the police knew that the defendant was wanted on two arrest warrants and was suspected of committing a recent armed robbery. Id. at 21. A confidential informant told the police that the defendant was in a particular house from which he was selling drugs and that he was armed with a revolver. Id. at 22. Without a search warrant, the police went to the house. Ibid. While speaking with the owner in front of his house, the police saw the defendant put his head out of a window. Ibid. They called for him to come outside. Ibid. When he disappeared, the police entered the house and began to search for him, ultimately finding him and the revolver, which was in plain view. Ibid. The court sustained the entry because of the presence of exigent circumstances, observing that Weems was known to be armed with a dangerous weapon and to have a history of assault; he was seen at the premises and was evidently trying to escape; he had the opportunity to destroy or hide drugs or the gun, both illegal in his hands. There was a need to act quickly, and Weems had been given ample opportunity to surrender. The initial entry did not violate the Fourth Amendment. [Id. at 23 (citation omitted).]
There is, of course, no question about the impropriety of defendant's reaction to the police presence in the instant case.
He was obliged to submit to arrest, State v. Mulvihill, 57 N.J. 151, 155-56 (1970), and the police were entitled to expect him to follow that course. Indeed, his flight from the couch for the purpose of eluding arrest was an offense of a criminal nature. N.J.S.A. 2C:29-2. Thus, the entry was justified by exigent circumstances.
Having gained lawful entry, the police were entitled to follow defendant, place him under arrest based on the arrest warrants, and conduct a search in the bedroom incident to the arrest. State v. Sims, 75 N.J. 337, 352-53 (1978). But the search of the living room couch, conducted after defendant had been removed from the house, cannot be justified as incident to the arrest.
Absent consent or exigent circumstances, since the homeowner had a proprietary interest in the couch, the search of the couch without a search warrant violated her right to be free from an unreasonable search. Johnson, supra, ____ N.J. at ____ (slip op. at 27).
The police did not ask for consent, and exigent circumstances were not present. In Johnson, the Court rejected a claim of exigency in like circumstances. Id. at 32-37 (slip op.). The only difference worth noting is that the gun was in a bag, and thus somewhat less accessible than the gun here. But, similar to the situation in the instant case, other adults and a young child were in the residence during the search. Id. at 6 (slip op.). The Court noted that even if there "was a need to act with dispatch," the officer "could have maintained the status quo in the apartment and applied for a telephonic search warrant . . . ." Id. at 35 (slip op.). And the Court framed the governing principle in this manner:
When the circumstances are sufficiently exigent that appearing before a judge to obtain a written warrant is either impossible or impracticable, but not so exigent that there is insufficient time to stabilize the situation and call for a warrant, police officers must obtain a telephonic warrant rather than conduct a warrantless search or seizure. [Id. at 35-36 (slip op.) (citations omitted).]
In the instant case, although the police were aware of the possibility of applying for a telephonic search warrant, they did not follow that path. Of course, the danger of the homeowner or one of her children finding the gun created an exigency, but, as was the case in Johnson, the situation was stabilized, and thus there was no justification for the absence of an attempt to obtain a telephonic warrant. Ibid.
Since the search was invalid, defendant was clearly prejudiced by his attorney's failure to file a motion to suppress before trial. In short, defendant was denied the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed. 2d 674, 697 (1984). Therefore, the conviction cannot be allowed to stand.
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