On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-01-227.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Messano.
We granted the State's motion for leave to appeal from that portion of the January 9, 2008 order that suppressed certain evidence seized following a warrantless search of the rear bedroom of the second-floor apartment at 124 Hobson Street, Newark. Defendant, Ricky Hubbard, cross-appeals from that portion of the order that denied his motion to suppress other items found in the bedroom after the police obtained the consent of defendant's seventeen-year old girlfriend and tenant of the apartment, Vanika Williams. On appeal, the State raises the following points for our consideration:
THE ENTRY INTO THE APARTMENT AT 124 HOBSON STREET WAS JUSTIFIED BY THE EXIGENT CIRCUMSTANCES EXCEPTION TO THE WARRANT REQUIREMENT.
THE DISCOVERY OF THE STOLEN CELL PHONE IN PLAIN VIEW WAS INADVERTENT UNDER THE CIRCUMSTANCES.
On the cross-appeal, defendant raises the following points:
BECAUSE AFTER THE POLICE HAD PROBABLE CAUSE TO BELIEVE THAT CONTRABAND WAS INSIDE 124 HOBSON STREET, APARTMENT 2 THEY WAITED 10 TO 15 MINUTES, CALLED FOR BACKUP, AND SUBPOENAED PSE&G RECORDS, THEY HAD ENOUGH TIME TO SECURE A TELEPHONIC SEARCH WARRANT, AND THEREFORE EXIGENT CIRCUMSTANCES CANNOT JUSTIFY ENTRY INTO THE APARTMENT.
BECAUSE THE INQUIRY INTO AN EXPECTATION OF PRIVACY CANNOT TURN SIMPLY ON WHETHER A DOOR IS LOCKED OR UNLOCKED, THE ENTRY INTO 124 HOBSON STREET ITSELF VIOLATED THE FOURTH AMENDMENT AND THE ITEMS SEIZED MUST BE SUPPRESSED.
EVEN IF EXIGENT CIRCUMSTANCES JUSTIFIED ENTRY INTO THE HOUSE AND APARTMENT, DISCOVERY OF CONTRABAND CANNOT BE JUSTIFIED UNDER THE PLAIN VIEW EXCEPTION TO THE FOURTH AMENDMENT'S WARRANT REQUIREMENT.
BECAUSE THE POLICE ILLEGALLY ENTERED THE APARTMENT WITH THEIR GUNS DRAWN, CONSENT SUBSEQUENTLY GIVEN BY A DETAINED SEVENTEEN-YEAR OLD OCCUPANT OF THE HOUSE, WHO WAS NOT CALLED AS A WITNESS AT A HEARING CANNOT BE DEEMED VOLUNTARILY GIVEN.
We have considered these arguments in light of the record and applicable legal standards. We affirm that portion of the order that suppressed the seizure of certain items, and reverse that portion of the order that denied the balance of defendant's motion, and conclude that the motion should have been granted as to all the evidence seized from the apartment.