On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-04-00846.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Chambers.
Defendant Juan Rodriguez-Gomez pled guilty, pursuant to a negotiated plea agreement, to one count of possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7, and one count of possession of cocaine with intent to distribute, N.J.S.A. 2C:35- 5. The court sentenced defendant to a term of five years without parole on the firearm possession charge, and to a concurrent three-year term on the illicit drug offense.*fn1 The court also imposed the mandatory fines and penalties.
Prior to pleading guilty, defendant moved before the court to suppress the evidence gathered by the police that led to his arrest. After conducting an evidentiary hearing, the court denied the motion. Defendant now appeals from this ruling. We gather the following facts from the evidence presented at the N.J.R.E. 104 hearing conducted by the court to review defendant's motion to suppress.
Michael Sweet contacted the New Jersey State Police to file a harassment complaint against defendant. According to the New Jersey State Police investigation report, Sweet telephoned the New Jersey State police and alleged that he had been verbally threatened by Gomez and that he feared for his family's safety. The police transported Sweet and his girlfriend to the police station where they both gave recorded statements.
Although Sweet did not know defendant's exact name and address, the police were able to determine both through investigation. Troopers M. Peeke, F. Serratore, C. R. Scott and Muhaw arrived at defendant's home at approximately 1:30 a.m. The officers obtained permission to enter the house by the homeowner Stephanie Winns. She escorted them to the entrance to the basement apartment where defendant resided. Winns explained that the basement apartment had two entrances, one through the residence and another in the back of the house.
Troopers Peeke and Scott entered the home through Winn's living area while Troopers Serratore and Muhaw waited by the rear entrance to the basement. Trooper Peeke's and defendant's accounts of what transpired differ. According to Peeke, he called defendant by name while standing at the top of the stairs that led to the basement and after identifying himself, the defendant responded that he had to put his dogs away. Defendant then appeared at the bottom of the stairs and invited the troopers, who did not have their guns drawn, down to the basement. According to defendant, the officers ran straight down the steps with their guns drawn. Defendant told the officers to "stand back," and they told defendant to put his dog away. When the troopers entered the basement apartment, defendant was only wearing boxer shorts. His girlfriend, Elizabeth DeJesus, was sitting in the living room, and the couple's two children were playing in another room.
Once inside the apartment, Trooper Peeke introduced himself to defendant and announced his reason for being there. He asked defendant if he was willing to follow him to the station, in his own vehicle, to discuss in more detail Sweet's harassment complaint. In response, defendant admitted that he had argued with Sweet, but denied having made any threats. Because he was wearing only boxer shorts, he requested that the troopers allow him to put on clothing before going to the station. At this point, Peeke asked defendant if he could follow him into the bedroom. Concerned for his safety and that of his fellow officers, Peeke did not want to loose sight of the defendant as he went into another area of the dwelling. According to Peeke, defendant answered "Yes, you can." By contrast, defendant testified that Peeke informed him that he "had to follow" him to his room for officer safety concern. He then responded: "If you have to follow me, you have to follow me."
Peeke testified that upon entering the bedroom, he observed a bag of marijuana, a red scale, and a gold bullet, "right in front of [him]". He immediately seized the items, and read defendant his Miranda*fn2 rights. According to Peeke, defendant admitted that the marijuana, scale, and bullet belonged to him. Peeke then asked defendant for permission to search his residence, and read him the standard consent to search form. Although he disputed that the form was read to him, defendant signed the consent to search form.
The form describes that the troopers were to search the basement area including the "landing, stairwell, bedrooms, living room, bathroom, kitchen, closet and any containers found therein." Defendant testified that the form was altered after he signed it to increase the scope of the consent. Peeke testified that at this point of the investigation only himself and Troopers Serratore and Scott were present in the apartment. The police recovered an ammunition magazine, a gun box, a loaded 9mm handgun, and thirteen bullets. According to Trooper Serratore, however, the handgun was not found as a result of the search. He noticed the weapon in "plain view" when he tripped as he was leaving the basement.
Against these facts, defendant now appeals raising the following arguments.
POINT ONE THE OFFICER'S ENTRANCE INTO AND SUBSEQUENT SEARCH OF THE DEFENDANT'S BEDROOM WAS UNCONSTITUTIONAL AS IT VIOLATED DEFENDANT'S RIGHT TO BE ...