On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-01-0003.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued on June 9, 2009
Before Judges Rodríguez and Waugh.
The State appeals the dismissal of Camden County Indictment No. 08-01-0003, which charged defendants Laquann Anderson, his brother Shamar Anderson, and their mother Tisa B. Anderson with assaulting two members of the Collingswood Police Department inside their home.*fn1 The assault is alleged to have taken place after the police officers, who did not have a warrant, followed Laquann and Shamar into their home to complete their arrest for disorderly persons offenses allegedly committed when the officers were attempting to control a crowd in the street adjacent to the residence.
In the Law Division, defendants successfully moved to suppress the evidence and dismiss the indictment, arguing that because the officers' entry into the Anderson home without a warrant was unlawful, the events that took place once they were inside the house were inadmissible as "fruit of the poisonous tree."*fn2 At the time of the evidentiary hearing on the motion, the State conceded that the officers' entry was unlawful. The motion judge agreed and determined that, because the entry was unlawful, defendants could not be charged with assault arising from their attempt to protect themselves during the unlawful entry.
On appeal, the State takes the position that the entry was lawful, that it is not bound by the concession made in the Law Division, and that, in any event, the motion judge erred in holding that an unlawful entry precluded prosecution based on defendants' efforts to defend themselves and their home. We conclude that the State is not bound by its concession, but nevertheless affirm the motion judge's conclusion that the warrantless entry was unlawful. However, we reverse the motion judge's dismissal of the indictment and remand to the trial court for further proceeding consistent with this opinion.
The following facts and procedural history inform our disposition of this appeal. The underlying facts were developed at the evidentiary hearing held by the motion judge. The only witness at the hearing was Sergeant Richard Lunt, who was called by the State at the instruction of the motion judge.
Lunt testified that, at around 12:30 p.m. on September 29, 2007, he was dispatched to the intersection of Woodlyne and Maple Avenues in the Borough of Woodlyne. The dispatcher reported "a fight involving numerous individuals." Lunt arrived at the scene shortly after Officer Brian DiCugno. Both officers were in uniform and driving marked patrol cars.
Lunt observed about ten to fifteen people "milling about." Lunt exited his vehicle and walked towards DiCugno, who was speaking with several bystanders. As Lunt approached, he "observed a vehicle that had a woman and some children in it." The vehicle was parked in front of 142 Maple Avenue. In addition to the driver and another woman in the passenger seat, there were three small children and an adult in the back seat. One of the children was in a infant car seat, but the car seat was not seat-belted into the vehicle. Lunt also noted that the other two children appeared to be under the age of four, under twenty-five pounds, and, consequently, not properly secured. See N.J.S.A. 39:3-76.2a.
Lunt walked over to the vehicle and asked the driver "what she happened to observe, if she happened to see a fight." Lunt testified that the driver was initially cooperative. However, when he informed her that "she needed to have the children properly secured in the vehicle prior to traveling," her attitude changed. Lunt related that the driver and the front-seat passenger began making statements to bystanders near the car, such as: "Can you believe this guy?" This apparently drew the bystanders' attention to the officers. According to Lunt, the driver became "boisterous in her conversation and mannerisms" and her "arms started moving about." He described her as "very agitated."
In his police report, Lunt wrote: "Due to the [bystanders] becoming angry and starting to make obscene comments, they were advised to disperse."*fn3 In response to Lunt and DiCugno telling the bystanders to disperse, two men outside the car, who were later identified as Laquann and Shamar, started saying "Man, fuck you! Fuck you, cops!" According to Lunt, this conduct "enrag[ed] the other people who were in the crowd."
Lunt testified that he "observed  DiCugno indicate to  Laquann Anderson  that he was under arrest." At that point, according to Lunt, DiCugno was approximately eight to ten feet away from him. Lunt was able to see Laquann, whom he described as "obviously upset, in the respect that he was being advised he was being placed under arrest." Laquann, who was approximately four feet away from DiCugno, was swearing and flailing his arms.
Lunt saw Shamar walking towards DiCugno and Laquann. Shamar was repeating: "Fuck you, man! Fuck you, cops!" as he approached. Lunt approached Shamar and, when he was approximately four feet from him, informed Shamar that he was under arrest for disorderly conduct.
Lunt testified that as DiCugno approached Laquann to handcuff him, Laquann fled on foot, running towards 142 Maple Avenue. Shamar followed him. Laquann was the first to enter the house, followed by DiCugno who was approximately two feet behind him. Shamar entered the house approximately three feet behind DiCugno, followed by Lunt.
To get into the home, the officers passed through an open screen door to an enclosed porch and then an open front door that led into the main portion of the residence. As they entered the house, the officers passed a woman standing in the doorway holding a small infant. Lunt testified that the woman "appeared as if she didn't know what was occurring." Lunt testified that, at this time, he did not know of the relationship between Laquann and Shamar, or that 142 Maple Avenue was their residence.*fn4
Lunt testified that as he entered the house, he was concerned for DiCugno's safety because he was being so closely followed by Shamar. Lunt instructed Shamar as he pursued him to "stop" and informed him that "he was under arrest."
The State offered no testimony about what happened after defendants and the officers entered the house. Lunt testified on cross-examination that the first time he saw Tisa, she was "striking" him with a "picture frame" and "a lot of things." The blows landed on his "head, the side of [his] ear, [his] left ear, [and his] shoulder." Lunt was asked on cross-examination: "How long were [you] in the Andersons' home before you sprayed your mace?" Lunt responded that it was within the first two minutes of entering the home.
On or about October 18, 2007, a Camden County Grand Jury returned an indictment against defendants.*fn5 Tisa was charged with third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a) (count two). Laquann and Shamar were charged with: two counts of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a) (count three and four); and two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count five and six). Additionally, Shamar was charged with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) (count seven).
However, the indictment included no charges related to the incidents that had taken place prior to entry into the house, such as the unspecified disorderly persons offenses that prompted the arrests, which might have included N.J.S.A. 2C:33-1 (failure to disperse) or N.J.S.A. 2C:33-2(b) (use of offensive language).
In late August 2008, defendants moved to suppress and to dismiss the indictment, arguing that the officers' entry into the Anderson house without a warrant was unlawful. The motion judge heard oral argument on the motion on September 19, 2008. During oral argument, the prosecutor conceded:
In the particular circumstances, regardless of whether they had a legal right to arrest them outside or not, the State concedes they could not enter the home without a warrant which they did not get. However, there is nothing in the law -- the statute specifically --  that would make it an illegal entry and an illegal arrest.
At the close of the hearing, finding that the entry into defendants' home had been unlawful, the judge dismissed the indictment. It is not clear whether an ...