June 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HENRY L. CORNISH, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 27, 2008
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 legality of a warrantless intrusion into a residence are probable cause and exigent circumstances), certif. denied, 135 N.J. 304 (1994).
While the odor of burning marijuana establishes probable cause for believing that there is contraband in the immediate vicinity and that a criminal offense is being committed, State v. Vanderveer, 285 N.J. Super. 475, 478-79 (App. Div. 1995); State v. Judge, 275 N.J. Super. 194, 201 (App. Div. 1994), officers may not make a warrantless entry into a residence based solely on such detection because the commission of a "minor" or disorderly persons offense does not constitute an exigency. State v. Holland, 328 N.J. Super. 1, 9-10 (App. Div.), certif. denied, 164 N.J. 560 (2000). See also Welsh v. Wisconsin, 466 U.S. 740, 750-51, 104 S.Ct. 2091, 2098, 80 L.Ed. 2d 732, 743-44 (1984); State v. Bolte, 115 N.J. 579, 597, cert. denied, 493 U.S. 936, 110 S.Ct. 330, 107 L.Ed. 2d 320 (1989). Simply put, "the smell of burning marijuana does not evidence an offense which is sufficiently grave to justify entering a residence without a warrant." Holland, supra, 328 N.J. Super. at 10.*fn2
The State has no quarrel with this legal proposition, but argues that the evidence was obtained by means of a valid consent sufficiently independent of the illegal entry as to dissipate its taint. Of course, given the erroneous finding of the motion judge, the State never advanced this theory for consideration by the court below. Nevertheless, we are satisfied that the record does not admit such clear and positive proof of attenuation.
Under the exclusionary rule, the State is barred from introducing into evidence the "fruits" of unlawful police action. Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed. 2d 441, 454 (1963); State v. Badessa, 185 N.J. 303, 311 (2005). "However, the exclusionary rule will not apply when the connection between the unconstitutional police action and the evidence becomes 'so attenuated as to dissipate the taint' from the unlawful conduct." Badessa, supra, 185 N.J. at 311 (quoting Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 2533, 101 L.Ed. 2d 472, 480 (1988) (internal quotes and citation omitted)). In other words, "[i]t is possible . . . for the causal chain between . . . unlawful [police activity] and evidence discovered afterward to be broken." State v. Chapman, 332 N.J. Super. 452, 467-68 (App. Div. 2000), certif. dism'd, 167 N.J. 624 (2001). Courts, then, must determine whether law enforcement officials "have obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct." State v. Johnson, 118 N.J. 639, 653 (1990) (citing Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed. 2d 416, 427 (1975)). In making this determination, three factors are considered: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct." Johnson, supra, 118 N.J. at 653; accord Brown, supra, 422 U.S. at 603-04, 95 S.Ct. at 2261-62, 45 L. Ed. 2d at 427.
Applying these principles, we conclude that the State has failed to prove the consent was not the product of the unlawful entry. In the first place, while no ill motive has been ascribed to the police, their action was nonetheless wide of the constitutional mark. There was no justification under any of the recognized exceptions to the warrant requirement for their forced entry into defendant's residence. Indeed, other far less intrusive and constitutionally permissible means existed to have obtained the desired result. Yet, not only did police enter the premises without permission, but they then physically removed defendant, his son and another occupant from the residence and essentially restrained them from leaving the scene.
Next, whether defendant's subsequent consent to search constitutes an independent, intervening circumstance sufficient to dissipate the taint of the primary illegality depends in large measure on whether defendant's consent was voluntary. In our view, the immediate temporal proximity between illegal entry and consent did not allow sufficient time for dissipation. There is evidence that a mere three minutes elapsed between the forced entry and defendant's execution of the consent-to-search form. Thus, in both time and place, the consent sprang directly from the illegal conduct. See Johnson, supra, 118 N.J. at 653. In other words, the acquisition of defendant's consent was a direct "fruit" of the constitutional violation. Further, the consent followed the presence of seven armed police officers who "pulled" defendant and the other two occupants from the room and confined them to the hallway outside. Considering the additional fact that defendant had earlier that day been the subject of another police search, we find no clear and positive proof from the totality of circumstances present that defendant's consent to search, upon which the State exclusively relies to justify admission of the challenged evidence, was sufficiently an act of free will to purge the primary taint.
Reversed and remanded.