On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-10-2237.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Baxter.
Defendant Henry L. Cornish appeals from an order of the Law Division denying his motion to suppress. For the following reasons, we reverse.
After the denial of his motion to suppress, defendant entered a conditional plea of guilty, Rule 3:9-3(f), to third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7. Upon merger of these counts, defendant was sentenced to a term of five years with a two-year parole bar. Appropriate fees and penalties were also imposed.
The facts adduced at the suppression hearing are as follows. On September 3, 2006 around 5:00 p.m., Atlantic City Police Officer Charles Miller, along with six other officers from the department, were executing an unrelated consensual search of a third floor residence at the Fox Manor Apartments. Upon completion and while descending the stairwell from the third to second floor, the officers smelled a strong odor of burnt marijuana. As they entered the second floor hallway, the officers determined that Room 205 was the source of the odor. One of the officers knocked on the door and when a man answered, a cloud of marijuana smoke billowed from inside. The officers, some with guns drawn, "pushed [their] way into the apartment."
Once inside the one-small-room apartment where defendant resided, the officers saw defendant and his young son sitting on the bed.*fn1 The officers "pulled" the three occupants out of the room and into the hallway where they were ordered to sit on the floor during the follow-up investigation, and were not free to leave. In response to Officer Miller's inquiry, defendant denied there were any drugs in the room and supposedly invited the police to search the room. Defendant then signed a consent to search form after being advised of his right to refuse. The ensuing search uncovered a "brick of heroin" underneath the bed, as well as burnt marijuana cigarettes, marijuana in bags, a scale and baggies.
In denying defendant's suppression motion, the judge concluded that defendant allowed the police to enter his one-room residence and thereafter consented to their search. Specifically, the judge found:
In this case, when the officers knocked on the Defendant's door, it was entirely within his power to allow them or refuse them entrance. Officer Miller asked permission to search, but advised the Defendant that he could refuse to consent. The Defendant told the officers to "go ahead and search." Furthermore, the officers obtained a written consent form from the Defendant. The Defendant was verbally advised of his right to refuse, and still signed the consent form. Based upon this scenario, the search was conducted with the Defendant's consent that was given knowingly and intelligently, making the seizure of the drugs lawful.
On appeal, defendant contends that the officers' warrantless entry into his residence was constitutionally unauthorized and rendered the subsequent search invalid. We agree.
As a threshold matter, we note that in reviewing factual determinations of a trial judge, we defer "to those findings . . . which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). However, this deference applies only when those findings could reasonably have been reached on sufficient credible evidence present in the record. State v. Locurto, 157 N.J. 463, 471 (1999). Where the findings of the trial court are so far from the mark, an appellate court must intervene in the interest of justice and reject such findings. Johnson, supra, 42 N.J. at 162; see State v. Adams, 125 N.J. Super. 587, 597-98 (App. Div. 1973). Moreover, no such deference is owed to the trial court's legal conclusions. State v. Loyal, 164 N.J. 418, 451-52 (2000); State v. Williams, 342 N.J. Super. 83, 93 (App. Div.), certif. denied, 170 N.J. 207 (2001).
Here, as the State readily concedes, in light of undisputed evidence that the officers "pushed [their] way" into defendant's home, the motion judge mistakenly concluded that the initial entry was authorized by defendant. Consequently, because the judge's ultimate legal conclusion was based on the erroneous notion that defendant's subsequent consent to search followed a legal entry into his home, we are satisfied that the State failed to carry its heavy burden of proving, by "clear and positive testimony" that defendant's consent was both knowing and voluntary. State v. King, 44 N.J. 346, 352 (1965).
"[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. . . ." United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed. 2d 752, 764 (1972). Accordingly, warrantless entries into residences are only permitted upon a showing of probable cause and exigent circumstances. State v. Hutchins, 116 N.J. 457, 463 (1989). See also State v. Ulrich, 265 N.J. Super. 569, 572-73 (App. Div. 1993) (the two prongs of the test of the ...