On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 08-04-0645 and 08-04-0651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2009
Before Judges Reisner and Chambers.
The State appeals from the order of January 16, 2009, granting defendant's motion to suppress a handgun. The gun was found in a search conducted by the police when responding to a reported domestic dispute. We remand in order that the trial judge may reconsider the motion in light of the recent development in the law regarding the police's community caretaking function set forth in State v. Bogan, 200 N.J. 61 (2009).
Defendant was indicted for possession of a handgun by a previously convicted felon in violation of N.J.S.A. 2C:39-7(b). He moved before the trial court to suppress the evidence of the handgun. At the hearing on the motion, the State and defendant stipulated to the facts set forth in the police report of January 16, 2008. That report provides the following scenario of events.
On January 16, 2008, the Carteret police department received a 9-1-1 call from a person claiming to be John Smith who stated that his sister Kamilah A. Richardson was the victim of a domestic dispute possibly involving a handgun, and he provided her address. When Officer Rosario and three other officers went to that address, they met Richardson outside of her apartment. She indicated that there was no problem at the residence, and she refused to allow the officers into her apartment. She advised that only her eleven-year-old son was in the apartment. The police report indicates that she became "noticeably agitated." The officers went to the apartment door which the child inside opened for them. When Rosario entered the apartment with gun drawn, he immediately observed defendant, whom he recognized, seated in the room in front of the television. While Rosario found no weapons on defendant's person, when he searched the immediate area where defendant had been seated, he found the gun under a pillow on a nearby mattress.
In its decision rendered on January 6, 2009, the trial court found that despite Richardson's assurances that there was no problem, the officers acted reasonably in investigating the matter further because many times a victim of domestic violence will deny that a problem exists and because a child was in the apartment. As a result, it concluded that the officers properly entered the apartment. However, once they did so and saw that the child was all right, under the totality of the circumstances and without further investigation, the trial court concluded that the police had no reasonable basis to believe that an emergency existed requiring them to conduct a further search. As a result, the trial court suppressed the weapon seized. The State has appealed, contending that under these facts the officers properly searched the immediate area around defendant for a gun.
The United States and New Jersey Constitutions require, as a general rule, that a warrant be issued before the police may search and seize evidence. U.S. Const. amend. IV; N.J. Const. art. I, § 7. A warrantless search is presumptively invalid unless it "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). The burden is on the State to show that the search falls within one of the recognized exceptions to the warrant requirement. Ibid. Where the warrantless search fails to fall within one of these exceptions, the evidence seized must be suppressed. See State v. Lee, 190 N.J. 270, 277-78 (2007) (stating that "[p]ursuant to the exclusionary rule, the State may not introduce evidence obtained from an unlawful search or seizure by the police").
The trial court analyzed the facts in light of the emergency aid doctrine set forth in State v. Frankel, 179 N.J. 586 (2004). Under the emergency aid doctrine, law enforcement officers may engage in a warrantless search when they "possess an objectively reasonable basis to believe - not certitude -that there is a danger and need for prompt action." State v. Frankel, supra, 179 N.J. at 599. In order for a warrantless search to be justified under emergency aid doctrine, the following three prongs must be met: (1) the officer "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) that his primary motivation is to render assistance, not seize evidence; and (3) "a reasonable nexus" must exist "between the emergency and the area or places to be searched." Id. at 600.
Here when the officers entered the apartment, there were no signs of immediate distress or a problem. Defendant was watching television. The police report does not suggest that the child appeared in distress in any way. Thus, no immediate emergency situation was apparent, and the first prong was not met to justify a search. Indeed, the trial judge indicated that the circumstances suggest that the primary motivation was looking for evidence against defendant, who was known to one of the officers. Under that circumstance, the second prong would not be satisfied. For these reasons, we concur with the trial court's conclusion that the search was not justified under the emergency aid doctrine.
However, after the trial court rendered its decision addressing the emergency aid doctrine, the Supreme Court decided State v. Bogan, 200 N.J. 61 (2009), which sets forth a further explication of the police community caretaking function. That function is designed "to ensure the safety and welfare of the citizenry at large." State v. Bogan, supra, 200 N.J. at 73 (quoting State v. Diloreto, 180 N.J. 264, 276 (2004) (citation omitted)). The community caretaking function includes "aiding those in danger of harm, preserving property, and 'creat[ing] and maintain[ing] a feeling of security in the community.'" Ibid. (alterations in original) (quoting Debra Livingston, Police, Community Caretaking, and the Fourth Amendment, 1998 U. Chi. Legal F. 261, 272 (1998) (citation omitted)). It is separate from the detection and investigation of crimes. Ibid. The community caretaking function may also justify a warrantless search. Ibid.
In Bogan, the police were investigating the sexual assault upon a minor that purportedly took place at a particular apartment. Id. at 65-66. When they went to the apartment and rang the bell, they heard an adult male voice, but a twelve-year-old boy wearing pajamas opened the door. Id. at 66. He advised the officers that no one was home. Ibid. After the officers made a few inquiries, the phone rang and when the child answered it, he told the officers that his father was on the line. Id. at 66-67. When one officer asked the child if he could speak with his father, the child consented. Id. at 67. The officer then entered the apartment to take the phone, and from that vantage point, he saw defendant in another room.
Ibid. The Court, upholding the conduct of the officer in entering the apartment, concluded that the officer was "fulfilling a basic community caretaking function - inquiring of a parent why a child was home alone on a school day in an ...