May 12, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LOUIS STEWART, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division Cumberland County, Indictment No. 06-10-996.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2009
Before Judges Payne and Waugh.
Defendant Louis Stewart appeals his conviction, following a guilty plea, for second-degree possession of cocaine with intent to distribute. N.J.S.A. 2C:35-5(a)(1), -5(b)(2). Prior to entering the plea, Stewart moved unsuccessfully to suppress evidence seized as the result of a warrantless search at 105 Bank Street in Bridgeton. On appeal, Stewart contends that the motion should have been granted and the evidence suppressed. We disagree and affirm.
We discern the following facts from the record made during the evidentiary hearing on the motion to suppress, which was held on August 10 and 16, 2007.*fn1 Detective Louis Santiago of the Bridgeton Police Department was on duty on June 10, 2006. At that time, Santiago was with the Anti-Crime Team (ACT), which is a "plain clothes assignment dealing with street level narcotics and quality of life issues." Santiago was working the night shift. His assigned area was the 100 block of Bank Street. Santiago testified that in June 2006, the 100 block of Bank Street was "laced with illicit narcotic activity, prostitution, [and] robberies."
Santiago and other members of the unit walked through an alleyway towards 110 and 112 Bank Street. Once they arrived at that point, they began to watch 105 Bank Street, which they knew to be the residence of Gloria Hicks. Santiago was familiar with Hicks from previous calls to her residence. Three weeks prior to the night in question, Hicks had come to the police station and reported that she had been assaulted by James McNair at her home. She told the officers that she had a bad drug habit and that "things were getting out of control in her residence."
Santiago told Hicks that he would from time to time check up on her to make sure that everything was alright at her home. Santiago positioned himself across the street from 105 Bank Street and observed it for fifteen to twenty minutes. He saw people going into 105 Bank Street through the front door and, on occasion, the back door. After a very brief time, the individuals would leave Hicks's residence and go across the street to 108 Bank Street. They would remain at 108 Bank Street for a few moments and then return to 105 Bank Street. They would knock and, when the door opened, enter 105 Bank Street.
After watching the activity described above, Santiago and other members of the team crossed the street to observe 108 Bank Street. After making further observations, they went to the back of the house directly across from 110-112 Bank Street - one house north of 105 Bank Street. From that location Santiago watched the back of 105 Bank Street and observed "a continuation of the pedestrian traffic in and out of the residence."
According to Santiago, the activities he observed were consistent with drug dealing. Santiago decided to go to the back door, knock, and attempt to speak with Hicks. However, as Santiago and Detective Kirsten Loew got to the landing of the back door, Bobby Taylor and McNair approached the back door from the front of the house. As Taylor stepped onto the landing, he looked over and saw Santiago, who was himself approaching the landing. Santiago described Taylor's reaction as follows:
He looked at us, his eyes opened up and he stepped back, and he began to mumble under his voice. I couldn't understand what he was saying. Bobby Taylor looked at us, and again, he had an expression of shock on his face.
Without knocking, Taylor opened the back door and walked into the house. The door stayed open, but McNair stood on the landing without entering the house. Santiago walked up to the door, stood at the doorway, and looked into the house, but did not cross through the doorway at that point.
As Santiago was approaching the doorway, he had observed people sitting in the living room. Once the back door was opened, he was able to see the range, the kitchen sink, and a counter. Santiago saw a plastic bag and a scale on the counter. He saw green vegetation, which appeared to be marijuana, inside the bag.
There were eight people in the living room, with Stewart and Howard Russell sitting near the scale and the marijuana. Russell was closest to the marijuana, and Stewart was to his right. At that point, Santiago was less than ten feet from the counter top and two or three feet from Stewart and Russell. Loew asked Santiago: "[W]hat are they doing over there?" When Santiago looked over toward Stewart and Russell, the two men were fumbling with a clear plastic bag. Santiago likened their motions to a game of hot potato - neither man wanted to hold the bag. Stewart eventually ended up with the bag, which he then threw behind the seats.
Santiago was familiar with both Stewart and Russell. Santiago also knew Taylor from a prior, drug-related offense. Based upon what Santiago saw Stewart and Russell doing with the plastic bag and his knowledge about the neighborhood and the house, Santiago believed that they were trying to get rid of drugs. Santiago made these observations within seconds of being at the door of the house.
After making his observations, Santiago and other members of his team entered the house and handcuffed both Stewart and Russell. The plastic bag handled by Stewart and Russell was found to contain crack cocaine.
On August 16, 2007, Judge Timothy G. Farrell denied the motion to suppress. After finding Santiago's testimony credible and reciting the facts adduced at the hearing, Judge Farrell gave the following reasons for denying the motion.
When law enforcement officers execute a valid search or seizure of an individual, any contraband located in plain view may be seized. Arizona v. Hicks, 480 U.S. 321, [107 S.Ct. 1149, 94 L.Ed. 2d 347 (1987)]; Payton v. New York, 445 U.S. 573, [100 S.Ct. 1371, 63 L.Ed. 2d 639 (1980)]. The initial intrusion by the police must be lawful. In other words, it must be justified by a warrant or recognized exception to the warrant requirement. The observation of the item must be made from a permissible vantage point; that is the officers involved must have a right to be where they are when they perceive the existence of the evidence.
There are two additional requirements that have to be satisfied for the plain view exception to apply. First, the officer  has to discover the evidence inadvertently, meaning that he did not know in advance where the evidence was located, or intend beforehand to seize it. Next, it has to have been immediately apparent to the police that the items in plain view were evidence of a crime or contraband, otherwise, subject to seizure. Coolidge v. New Hampshire, 403 U.S. 443, [91 S.Ct. 2022, 29 L.Ed. 2d 564] (1971); State v. Bruzzese, 94 N.J. 210, 236-37 (1983)[, cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984)]; State v. Padilla, 321 N.J. Super. 96, 109 (App. Div.), [certif. denied, 162 N.J. 198 (1999)].
The immediately apparent language should not be construed to mean that the officer knew that certain items were contraband, or evidence of a crime. It is sufficient that the police officer, from a permissible vantage point, has probable cause to believe that the item observed was contraband, or evidence. Bruzzese, [supra, 94 N.J.] at 236-37.
Here the State suggests that the officers had the right to be where they were, because it was an area known as the curtilage part of the property where members of the public were permitted to be. Curtilage is land adjacent to a home and may include walkways, driveways, and porches. State v. Johnson, 171 N.J. 192, 208-09 (2002). Whether the fourth amendment safeguards an area of curtilage depends on a consideration of various factors, including whether the area is included within an enclos[ure] surrounding the home, the nature of the uses to which the area is put, the steps taken by the resident to protect the area from observation by people passing by. Again, that would be Johnson, [supra, 171 N.J. at 208-09,] as well as United States v. Dunn, 480 U.S. 294, 301, [107 S.Ct. 1134, 1139, 94 L.Ed. 2d 326, 334-35] (1987).
An area within the curtilage to which the public is welcome, such as a walkway leading to an entrance to a home, is not afforded fourth amendment protection, because the resident has given . . . implicit consent to visitors to approach the home from that area. Again, that would be Johnson, [supra, 171 N.J.] at 209.
In other words, when a law enforcement officer walks to a front or back door for the purpose of making contact with a resident, and reasonably believes that the door is used by visitors, he is not unconstitutionally trespassing on that property. Again, Johnson, [supra, 171 N.J.] at 209.
Here, I find that the officers suspected something was afoot in the area of Ms. Hicks's home, for two reasons, she told them, not on that particular night, but that it was an ongoing problem, and from their experience in the area. I believe Officer Santiago testified today that as part of the ACT he had gone to this home several times, although they had not found any drug transactions at that point, he had been involved in investigations . . . which dealt with drug usage.
. . . [A]nd I agree with [defense counsel], and I don't think the State disputes it, there was no probable cause to get a search warrant at the time the officers went to the 105 Bank Street. I would suggest there wasn't sufficient evidence to establish probable cause by seeing people come and go, even with the experience of the officers as to what was going on by the length of time it was taking each person to be in the home, how they were acting, as well as their experience that this was a high drug, or high crime area.
But, I would suggest that it was certainly sufficient evidence which would permit them to investigate further. When you add to that the request of Ms. Hicks for them to keep an eye on her home, I would suggest that the officers -- based on that request -- had every right to go knock on her door. But, even if we take that out of the equation, I find that  their observations establish that the rear doorway of 105 certainly fit within the public use exception to the protections of the fourth amendment, particularly the night in question. They observed numerous folks coming in and out of 105 Bank Street on the first floor through the doorway, which was eventually approached by Officer Santiago. So, I find that he had a legal right to approach the house and step up onto the porch.
[Defense counsel] suggests that there was a major discrepancy between the police report and Officer Santiago's testimony, because in the report the officer testified that he was "in the doorway," when he saw the suspected marijuana. I don't find any such inconsistency. To me, common usage of the phrase, "in the doorway," basically means in the area of the doorway. It could be on either side of it. It could be in it. And, I don't find any inconsistency to suggest that the officer meant, when he wrote the report, that he [had] actually stepped up and [was] standing in the threshold.
I find the officer's testimony as to where he was located to be credible, and I find that what he observed through the doorway meets the plain view exception. I find that the law enforcement officer had a right to be where he was. I find that what he saw was inadvertent. I acknowledge that the officers had a hunch that there was something going on and that this was an area where drug transactions occurred on a regular basis. But, I find nothing in the record to suggest that they knew what they were going to find when they knocked on the door, which is what Officer Santiago indicated that he intended to do.
Likewise, I find that what he saw was  immediately apparent as being contraband,  or evidence, with regards of the sale of a controlled dangerous substance, and that he had probable cause to believe that the marijuana and the scale were evidence of a crime. Thus, I find that the officers had the right to then enter the structure once they saw the evidence in plain view.
Now, [defense counsel] argues that this was a police-created exigency, as prohibited in State v Hutchins, 116 N.J. 457, 460 (1989). . . . I find that  the fact pattern in this case is markedly different than the fact pattern in Hutchins. Our Supreme Court and other appellate courts have recognized that the mere fact that police announce their presence or show themselves does not create an exigency. That's not a police-created exigency, because if it was, every time the police were present some place they would be creating the exigency and therefore there would be no exception.
What happened in Hutchins is, the police had a tip that somebody was going to be selling drugs in the house, and they went and knocked on the door, and someone, the occupant, came to the doorway, and he had something in his hand, but they couldn't see what it was, they just had a hunch that it was CDS. And, when they wanted him to show them, or to answer questions, he proceeded to go back into the home, which he had every right to do.
The police then followed him into the home and basically forced him to produce what he had [in] his hand. That's not at all what we had here. I find that the fact that the police were surveilling the location because they suspected something, is not a police-created exigency, and when they get to the doorway, they didn't have to do anything except look. And, when they look in the doorway, where I believe it was Taylor had entered[,] what they saw at that point was in plain view. So, I find that the prohibition announced by the New Jersey Supreme Court in Hutchins does not apply here.
The State argues that once the officers saw what they saw, there were exigent circumstances for them to enter the home and secure the evidence. And, I agree. This is not the kind of case where they could have secured the house, waited for a warrant, because at that point that would suggest that they did have probable cause. The house was filled with people. Entering the house to secure the people would have created the same problem as entering the house to secure the evidence.
And, I find, as is often the case in drug related cases, that this is a case where destruction of evidence was an issue. . . . I don't find that Mr. Stewart, or Mr. Russell, had attempted to throw  what they had in their hands into a toilet and flush it, or to throw it out the window, or to pass it to someone who was running out the door. But, what we have here is an apartment, or a house, that's got at least eight people [in] it when the police arrive.
They have plain view evidence of suspected marijuana and scales. I would suggest that  what they see Mr. Stewart and Mr. Russell doing would cause a reasonable officer to believe that what they were passing back and forth, and trying to hide, was contraband, and there was a need to secure it.
On that same date, August 16, 2007, Stewart accepted a plea offer from the State. In exchange for entering a plea of guilty to count two, second-degree possession with intent to distribute cocaine, the State agreed to recommend that he receive a sentence of five years, with a two-and-one-half year period of parole ineligibility. Judge Farrell accepted Stewart's conditional guilty plea, R. 3:9-3(f), finding that there was a sufficient factual basis to do so.
On October 19, 2007, Judge Richard Geiger imposed the recommended sentence, together with all mandatory fines and penalties. Stewart does not challenge the sentence on appeal. This appeal followed.
Stewart raises the following issue on this appeal:
DEFENDANT'S MOTON TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE DRUGS WERE THE FRUITS OF AN UNLAWFUL ENTRY INTO THE HOUSE. AS THE DETECTIVE MADE HIS "PLAIN VIEW" OBSERVATION FROM A CONSTITUTIONALLY PROTECTED AREA OF THE HOUSE, NAMELY THE CURTILAGE, AND THE SEARCH OF THE HOUSE WAS WITHOUT A WARRANT, THE DRUGS SEIZED WERE "FRUITS OF THE POISONOUS TREE" AND MUST BE SUPPRESSED.
Having reviewed the record, Judge Farrell's thoughtful opinion denying the motion to suppress, and the arguments raised in the briefs, we find Stewart's appellate arguments to be without merit and not warranting extended discussion in a written opinion on appeal, R. 2:11-3(e)(2), and affirm essentially for the reasons set forth by Judge Farrell in his oral opinion. We add only the following.
Judge Farrell's findings of fact, as to which our scope of review is "extremely narrow," were fully supported by the evidence adduced at the hearing. State v. De La Paz, 337 N.J. Super. 181, 190 (App. Div.), certif. denied, 168 N.J. 295 (2001). Although a trial judge's interpretation of the law is not entitled to such deference, ibid., we find that Judge Farrell correctly applied the law with respect to "curtilage," as outlined in State v. Johnson, 171 N.J. 192, 208-09 (2002), in determining that Santiago did not require a warrant to go onto the back porch of 105 Bank Street.
Santiago had been asked by Hicks to assist her with respect to problems at her home; and had promised to check on her on occasion. He had observed several people go up onto the porch and enter the house through the back door. It was reasonable for Santiago to decide to attempt to speak with Hicks. Once lawfully on the porch, he observed contraband in plain view, after Taylor opened the door, entered, and failed to close it.
A warrant is not required when a police officer is: (1) lawfully present in the viewing area; (2) the officer inadvertently discovers the evidence in plain view; and (3) it is "immediately apparent" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." Johnson, supra, 171 N.J. at 207; see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984).
It was also reasonable for Santiago to seize the drugs at the time because it was extremely unlikely that they would still be there when he returned with a warrant, had he sought one, inasmuch as he observed Stewart and Russell attempting to hide the plastic bag. See State v. Stott, 171 N.J. 343, 358 (2002).