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State v. Migliore


August 7, 2009


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-08-01483.

Per curiam.


Submitted: June 16, 2009

Before Judges Axelrad and Winkelstein.

Following denial of his motion to suppress, defendant David Migliore pled guilty to one count of second-degree possession with intent to distribute a controlled dangerous substance, oxycodone, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-5b(4). In accordance with the plea agreement, the court sentenced defendant as a third-degree offender to a four-year term of imprisonment, imposed a six-month driver's license suspension and applicable monetary fines and penalties and dismissed the remaining nineteen counts of the indictment.*fn1 Defendant appeals, arguing the trial court erred in finding the entry and search were justified under the emergency aid exception to the warrant requirement and the tenant voluntarily consented to the search. We disagree and affirm.

At the suppression hearing, the State presented the testimony of Mahwah police officers Lieutenant Harvey C. Murphy, Patrolman Robert Rapp and Detective Lieutenant Martin Clancy and played the audiotape of the 9-1-1 call. The defense presented co-defendant, Gregory Migliore (Migliore), the tenant of 266 Airmount Avenue, Mahwah (the subject property). According to the evidence, on September 20, 2005, at about l0:00 a.m., the Mahwah Police Department received a 9-1-1 call from a person who identified himself as Christopher Tagliaferro and directed it to Lt. Murphy as a possible hostage situation. Tagliaferro reported that his cousin, Michaelinda Hopkins, had been to a party a few days earlier and had not returned home. Furthermore, when her boyfriend had called her cell phone a man answered and refused to let her talk, and he heard a squealing sound in the background. Tagliaferro and her boyfriend drove past the subject property and saw Hopkins' car parked in the back. They then went to the front door and were met by a man with a pistol who demanded they leave. The caller related his concern that the man had his cousin "drugged up."

Lt. Murphy explained that he concluded the 9-1-1 call was credible based on the caller's inflection, the repetition of the specific information that had been provided to the dispatcher, the caller's willingness to answer his questions, and the caller's providing of his name, address, location, and call-back number. Lt. Murphy organized a team to respond to the Airmount address as a potential hostage situation while Lt. Clancy called Tagliaferro back on his cell phone to obtain more detailed information.

Upon arriving at the subject property, Lt. Clancy observed a green SUV and a motorcycle, both of which had been mentioned by Tagliaferro, and observed in plain view in the SUV the barrel of a shotgun and three rifle cases. He communicated this information to the other officers, including Officer Rapp, who were stationed around the perimeter of the property. Lt. Murphy then approached and knocked on the front door, after which a shirtless defendant appeared in an upstairs window. The officer explained that police were there to check on Hopkins, and asked defendant to come downstairs and speak with him. Defendant came downstairs, opened the front door and stepped outside. The officer repeated the police's concern about Hopkins. Defendant, who seemed slightly disoriented, indicated he understood and turned back to enter the house. Lt. Murphy stopped defendant, advising him that for everyone's safety, he wanted to go inside with defendant. By now, Lt. Clancy was also at the door. Defendant agreed, and both officers followed him into the house.

The front door opened onto a small living room, with the kitchen to the left. The house was cluttered and there were black garbage bags on the windows. Defendant immediately walked to the living room and began throwing papers around, attempting to cover up pipes and a bag of suspected marijuana. Lt. Murphy, who had followed defendant into the room to make sure he did not have access to a gun, directed him to stop, which he did. The officer then asked defendant who was upstairs, and he responded, his brother and Hopkins. At the officer's request, defendant called upstairs, and Migliore and a young woman, subsequently identified as Hopkins, came down. Lt. Murphy, not certain about the safety of the interior environment, decided to conduct the interviews outside.

As they walked out, considering the reported revolver incident and the rifle found in the SUV and the uncertainty as to whether anyone was still present in the house, Lt. Murphy directed Officer Rapp and Detective Businelli to perform a quick, protective sweep of the upstairs floor and attic area to ensure that no one was there who could harm the officers or anyone else. Officer Rapp spent about two seconds clearing the bathroom and entered the far left bedroom, which he cleared in about five seconds. He looked under the bed to make sure no one was hiding there, and observed in plain view a silver-colored handgun with a brown handle on the carpet by the nightstand. He then picked it up, determined it was loaded, and for safety reasons, emptied it and placed the gun and bullets in his pocket. Before leaving the room, the officer glanced at the closet, which did not have a door and was completely open. Detective Businelli did not observe any persons or weapons in the right bedroom and then spent two seconds checking the attic by lifting up a piece of wood and visually clearing the space. The officers then exited the house and Officer Rapp placed the gun and bullets in his patrol car.

Meanwhile, Hopkins was separated from the two males to ensure she could speak freely and was not being threatened or held against her will. Hopkins, who did not appear to be "high," identified herself and told Lt. Murphy she was staying at the Migliore house of her own free will and she was "having a problem with her boyfriend."

The police ascertained that Migliore rented the house and defendant was staying with him for a short period of time. Lt. Clancy explained the reasons the police were at the scene, made clear they had seen drugs and paraphernalia on the living room table and what looked like beakers in the kitchen and asked Migliore for consent to search the house. Lt. Clancy testified he verbally advised Migliore his consent had to be voluntary and he had the right to refuse consent. When Migliore verbally agreed, a Consent to Search form was produced, which Lt. Clancy read aloud and had Migliore read to himself. Migliore also filled in portions of the written form, including the house address and license plate number of the SUV, which were the subject of the search, as well as the time. When the consent form was being signed, neither Lt. Clancy nor Migliore was aware of Officer Rapp's discovery of the handgun in the upstairs bedroom. The consent form expressly provided that Migliore "knowingly and voluntarily" gave his consent to search "without fear, threat or promise (expressed or implied)," and that he had been advised he had the right to refuse to give his consent to search. Migliore agreed to the search and accompanied the officers, who included Lt. Clancy, Detective Businelli, and Officer Machoda, while they searched the house. About thirty-five items were seized from the upstairs and downstairs, including additional weapons and an assortment of narcotics and narcotics paraphernalia.

Migliore testified that he was asleep when he was awakened by defendant yelling for Hopkins and him to come downstairs. When he walked down the stairs, Hopkins was already there. The three were led outside, with Migliore being the last one out of the house. As he exited, he saw police officers looking around the living room and going upstairs. There were many police cars outside, making Migliore feel "sort of overwhelmed." There was significant commotion and he was also "quite disoriented," having just awakened. Lt. Clancy explained that they had come in response to a report of a possible hostage situation and had observed drugs and paraphernalia. The officer asked Migliore to consent to the search of his home and explained if he did not, they would obtain a warrant and he would not be able to return inside until that warrant was obtained. Migliore, feeling the police had already seen the drugs when they went upstairs, expecting the police would obtain a search warrant if he refused, and hoping his cooperation would benefit him later, consented to the search.

In rebuttal, Lt. Clancy testified he informed Migliore that no one would be able to go back into the house at that time because the police were unsure about what else was in the house. He denied telling Migliore that if he refused to consent to a search, the police would obtain a warrant.

Following the two-day hearing, the motion judge, crediting the State's proofs, issued a written opinion denying the motion to suppress. The judge found the Mahwah police entry into the first floor of the Migliore home and the limited search which was then conducted of the upstairs was justified under the emergency aid exception to the warrant requirement in order to check on Hopkins' welfare. The court rejected the defense argument that there was no true emergency because, after speaking with Hopkins, the police concluded she was not being held against her will or, alternatively, that the emergency situation should have been deemed ended when Hopkins first announced she was safe.

Judge Harry G. Carroll explained the exigent circumstance exception to the warrant requirement as follows:

Exigent circumstances permitting home entries depends upon the degree of urgency involved and the amount of time necessary to obtain a warrant. State v. Hutchins, 116 N.J. 457, 469-7l (1989). . . . There are three prongs that must be satisfied in order to fall within the exigent circumstances exception: 1) the official must have an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or prevent serious injury; 2) his primary motivation for entry into the home must be to render assistance, not to find and seize evidence; and 3) there must be a reasonable nexus between the emergency and the area or places to be searched. State v. Frankel, 179 N.J. 586, 600[, cert. denied, Frankel v. New Jersey, 543 U.S. 876, 125 S.Ct. 108, 160 L.Ed. 2d 128 (2004)].

. . . "A 9-1-1 call is one of the most common . . . means through which police and other emergency personnel learn that there is someone in a dangerous situation who urgently needs help." United States v. Richardson, 208 F.3d 626, 630 (7th Cir.).

The use of 9-1-1 to falsely report an emergency is a crime. . . . A 9-1-1 call carries "a fair degree of reliability," because "it is hard to conceive that a person would place himself or herself at risk of a criminal charge by making such a call," unless there was a true emergency.

State v. Golotta, 178 N.J. 205, 219 (2003).

The court found the Mahwah police took "appropriate steps" to ascertain whether the 9-1-1 call from Tagliaferro was legitimate, in dispatching officers to the scene and in requesting and securing defendant's permission to enter the house to check on Hopkins' welfare, stating:

This court notes that the 9-1-1 call was not received from some anonymous individual but rather from someone who provided the police not only with his name but also his location and a call-back number. This court also accepts the testimony of Lt. Clancy that the Mahwah police then took additional steps to verify the information given to Lt. Murphy by calling back Mr. Tagliaferro. He then provided more detailed information regarding the location and description of the house as well as a description of certain vehicles that were present there. Mr. Tagliaferro then further advised Lt. Clancy that Mr. Lopez [Hopkins' boyfriend] had called the house, spoke to "Dave" but could not speak with Ms. Hopkins at which time he thought he heard squealing. They then went to the house and observed Ms. Hopkins' vehicle in the back, and when they approached the house a gun had been pointed at them.

The court concludes from the above testimony given by Lts. Murphy and Clancy that the Mahwah police took appropriate steps to determine whether the 9-1-1 call was real or a hoax, and upon confirming the information received acted properly in dispatching officers to the 266 Airmont Avenue address where they established a perimeter to investigate a possible hostage situation.

This court next accepts as credible the testimony of Lt. Clancy that upon arriving at the home he observed a green SUV and a motorcycle, both of which had been mentioned during the course of his conversation with Mr. Tagliaferro. As Lt. Clancy walked up to the green SUV he observed in plain view the barrel of a shotgun and three rifle cases. Lt. Clancy then communicated this information to Lt. Murphy and Officer Rapp.

. . . [T]his court concludes that it must examine the reasonableness of the police conduct based on the totality of the circumstances that faced the police at that time. As the Supreme Court noted in Frankel, supra, 179 N.J. at 599:

We avoid viewing the events through the distorted prism of hindsight, recognizing that those who must act in the heat of the moment do so without the luxury of time for calm reflection or sustained deliberation. [citations omitted].

The emergency aid doctrine only requires that public safety officials possess an objectively reasonable basis to believe - not certitude - that there is a danger and need for prompt action. [citations omitted]. That the perceived danger, in fact, may not have existed does not invalidate the reasonableness of the decision to act at that time.

For the reasons previously stated, this court has concluded that the Mahwah police acted reasonably in responding to the subject residence based upon the facts and circumstances of the 9-1-1 call and the additional information supplied by Mr. Tagliaferro. This court also concludes that they possessed an objectively reasonable basis to conclude that Ms. Hopkins was in danger and hence the need for prompt action. Accordingly, when David Migliore answered the door, this court finds that the police acted properly in requesting and securing his permission to enter the home to check on Ms. Hopkins' welfare. Upon entering the living room they almost immediately noticed suspected marijuana and numerous pipes and paraphernalia that David Migliore was attempting to conceal. Upon making that observation, they already possessed allegations via the 9-1-1 call that Ms. Hopkins may have been drugged up.

The court further found the "primary motivation for the police entry into the first floor of the home was to ascertain the status of Ms. Hopkins and to render assistance to her, rather than to find and seize evidence," thus satisfying the second prong of the emergency aid doctrine test.

Although a "closer question," the court also approved the expansion of the search to the second floor, finding the police acted reasonably in not accepting at face value Hopkins' statement that she was not being held against her will and in continuing their investigation by separating the parties so Hopkins could speak freely. Moreover, based on the totality of the circumstances, including the 9-1-1 report of defendant pointing the revolver and the police observation of the shotgun and rifle cases in the SUV, the court concluded there was a reasonable nexus between the emergency and the upstairs to justify a cursory inspection of that area to ensure that no other persons were present who could harm the officers or others. Judge Carroll credited the testimony of Officer Rapp as to the limited period of time and nature of his search, concluding he was not looking for evidence but was only following up on the "safety reasons which had initially properly drawn the police to the subject premises."

Having concluded the Mahwah police officers were lawfully on the premises pursuant to the emergency aid doctrine, the court additionally ruled the police properly seized the drugs and paraphernalia in the living room and the handgun on the floor in the upstairs bedroom as within their plain view, given the information that the purported victim might have been "drugged up" and the individual inside the home possessed and/or pointed a weapon at Tagliaferro and/or Lopez.

Lastly, the court determined that based on the totality of the circumstances, the State proved the Consent to Search signed by Migliore was voluntarily given and all items of contraband and evidence found in the house and in the SUV based on the consent were validly seized. Judge Carroll rejected the defense claim that Migliore was under arrest at the time of the consent, finding instead that he and defendant were the subjects of an investigative detention. Moreover, even if Lt. Clancy had indicated he would seek a search warrant if necessary, as contended by the defense, the court concluded such statement would not vitiate Migliore's consent, particularly since the police had probable cause to obtain the warrant. See State v. Cancel, 256 N.J. Super. 430, 433-34 (App. Div. 1992). This appeal ensued.

On appeal, defendant raises the following issues:


A. The police lacked objectively reasonable grounds for believing an "emergency" existed, and their warrantless non-consen[s]ual entry of defendant's residence was constitutionally unjustified.

B. The police "sweep" of the Migliore home was unlawful.

C. The "consent" to search the Migliore home executed by Gregory Migliore was constitutionally involuntary, and the resulting warrantless search violated Defendant's rights under the Fourth Amend. and Article I, para. 7 of the N.J. Constitution.

We have considered these arguments in light of the record and applicable legal standards, and affirm substantially for the reasons stated by Judge Carroll in his comprehensive written opinion of March 23, 2007. We add only the following brief comments.

According to defendant, the evidence demonstrated that no true emergency existed at the Migliore residence; rather, there was a criminal misuse of the 9-1-1 line in order to enlist the aid of the police in recapturing an abused girlfriend from the home where she had taken refuge, after Tagliaferro and her boyfriend's self-help attempts to get her back had failed. Defendant further urges that even if there were a valid entry into the front hallway for emergency aid of Hopkins based on Tagliaferro's call, once Hopkins came downstairs immediately upon being called by defendant, not acting "unusual" or "drugged," or at the latest when she informed the police she was in no danger and was staying voluntarily at the house, it became clear no assistance was required and the police should have withdrawn. Accordingly, defendant urges, there was no constitutional basis for the non-consensual "sweep" search of the upstairs bedroom, particularly in the absence of any articulable objective facts for believing there were other persons secreted in the house who could do violence.

Defendant also challenges the voluntariness of Migliore's consent to search, emphasizing, as he did to the trial court: that Migliore had been involuntarily removed from his own home after being awakened and summoned downstairs partially dressed, surrounded by numerous heavily armed officers who immediately began "sweeping" through his house; that he was told at some point the police had come to assure themselves Hopkins was not in danger but now had a different "situation" after observing the narcotics paraphernalia in his house; and that he was essentially placed under arrest without being administered Miranda*fn2 warnings and was made aware he would not be allowed to re-enter his house until the police conducted a full search and if he did not "consent," the police would obtain a warrant.

Our scope of review is limited to determining whether the findings by the trial judge could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole and giving due deference to the trier of fact who had the opportunity to hear and see the witnesses and had the "feel" of the case. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). Judge Carroll addressed and rejected the arguments that defendant renews on appeal, setting forth in detail his credibility assessments, findings of fact and conclusions of law. We sustain the court's findings that the evidence was seized in plain view during a valid police entry and brief protective search in response to an emergency situation and as a result of a consensual search as supported by the record and case law.

The emergency aid doctrine derives from the "commonsense understanding" that there are times when public safety officials, like firefighters, police officers and paramedics, need to enter a home to protect or preserve life or prevent serious public injury. Frankel, supra, 179 N.J. at 598. The decision to enter need not be correct; it must only be reasonable based upon the information the officers had at the time. Id. at 599. Based on the nature of the 9-1-1 call and the information supplied by the individual who identified himself and provided a call-back number, the Mahwah police reasonably believed a woman was being held against her will by an armed individual. The police confirmation of Tagliaferro's description of the house and vehicles parked there and their observation of the shotgun and three rifle cases in the SUV heightened their fears of danger.

Contrary to defendant's assertion, the emergency or potentially dangerous situation did not dissipate when Hopkins walked down the stairs or even after she spoke with the officers outside. The police did not know whether the woman who came downstairs was Hopkins, whether her presence in the house had been voluntary or forced or whether there were other persons upstairs who were being held or had been holding Hopkins against her will. Moreover, in light of the report and evidence of weapons on the premises, the police were particularly justified in making the brief protective sweep to make sure that no one was upstairs with access to weapons. See State v. Lane, 393 N.J. Super. 132, 151-57 (App. Div.) (the validity of a protective sweep turns on the officer's right to be in a location that generates a reasonable articulable suspicion the area to be swept harbors a person posing a danger to those on the scene), certif. denied, 192 N.J. 600 (2007).

Finally, based on Lt. Clancy's testimony, which the trial court judge credited, and a review of the written Consent to Search form, it is clear that Migliore's consent was voluntarily given with full knowledge of his right to refuse.


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