On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-03-0986.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Waugh.
After drugs were found in a bedroom occupied by defendant, Andre Scott, and his girlfriend, Shalis Taylor, both were indicted for the third-degree crimes of conspiracy to violate the narcotics laws, N.J.S.A. 2C:5-2; possession of cocaine, N.J.S.A. 2C:35-10a(1); possession of cocaine with the intent to distribute it, N.J.S.A. 2C:35-5a(1) and b(3); and possession of cocaine with the intent to distribute it within 1,000 feet of a school zone, N.J.S.A. 2C:35-7. In a suppression motion, Scott challenged the police's warrantless entry into the premises where the drugs were found and their seizure of the drugs. However, following a hearing, his motion was denied. Thereafter, defendant pled guilty to third-degree possession of cocaine, and he was sentenced to 364 days in jail as a condition of three years of probation, time served.
Defendant has appealed the denial of his suppression motion arguing:
THE "PLAIN VIEW" DOCTRINE DOES NOT EXCUSE LAW ENFORCEMENT'S NEED FOR PROBABLE CAUSE AND AN EXIGENCY BEFORE CONDUCTING A WARRANTLESS SEARCH OF A PRIVATE RESIDENCE; THE SEIZURE OF EVIDENCE WAS ILLEGAL AND THE LOWER COURT DECISION SHOULD BE REVERSED.
We agree with defendant's arguments and reverse the order denying suppression of the evidence seized by the police in this case.
At the suppression hearing, testimony was given by Eva Martin, the owner of the two-family house where defendant and the drugs were found, and by police officers Lester Wilson and Ana Perez. The testimony disclosed that, in the early afternoon of November 6, 2006, two women standing outside of a residence located at 24 Augusta Street in Irvington were arrested for selling drugs. As the second woman was being handcuffed, Martin exited the residence to obtain her mail. When she was asked by the police if she knew the identities of the two women, Martin responded that one was her daughter and the other was her daughter-in-law. Additionally, she told the police that the women used the building's porch for their drug dealing, but a resultant search disclosed no drugs.
As Martin was standing in the doorway of the house facing the street, a man walked quickly from the interior of the house past her, squeezing between her and the door frame. According to Martin, the police commanded the man to "hold it," and he stopped. Officer Wilson testified that, as the man passed through the doorway, Martin stated in a "frantic" voice, "no, no, where did he come from? I don't know him." Martin testified that the man initially stated that he had come from "up there." However, when Martin stated that he was lying because she lived upstairs, and no one had entered her premises, the man stated that he had stopped by to see his friend and the friend's girlfriend on the first floor. When asked, the man was unable to give the names of the persons that he had just visited.
In response to police questioning, the man identified himself as Amir Bullock, and he gave his social security number. When asked if there were any outstanding warrants for his arrest, Bullock replied "no" but stated that he had unpaid parking tickets. According to Officer Wilson, at the time he was stopped, Bullock was not carrying either burglar's tools or the spoils of a burglary, he was not disheveled, and he had no bloodstains on him. Bullock was nonetheless detained, but he was not arrested. Backup officers were assigned to watch Bullock, and according to Martin, Officer Wilson announced that he was "going inside." He did not seek Martin's or any other person's permission to do so.
Officer Wilson testified that, at this point, he looked down the first-floor hallway and saw two open doorways, one to the first-floor apartment, and the other to the stairs leading to the second floor. Wilson entered the first-floor apartment, announcing, as he did so, that he was a police officer and asking if anyone was home. He received no answer to that or to subsequent similar queries. When asked why he entered the apartment, Wilson stated that he found Bullock's inability to identify the people he had visited to be suspicious, and he wanted to see if someone in the apartment could vouch for him. Wilson testified: "I figured everything could be wrapped up if I found somebody on the first floor to say, yeah, he came to visit me. We're done, and we on our way." Wilson admitted:
At that point, I didn't believe that [Bullock] committed a crime. It was just a lot of inconsistencies. I didn't ...