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State v. Migliore

August 7, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID G. MIGLIORE, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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