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State v. McGacken

March 15, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRIAN MCGACKEN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-06-1519.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 15, 2009

Before Judges Lihotz and Ashrafi.

This appeal from an order denying suppression of evidence focuses on a narrow issue - the circumstances that permit warrantless entry and search of a home to determine whether a person may be in need of emergency aid. See State v. Frankel, 179 N.J. 586, cert. denied, 543 U.S. 876, 125 S.Ct. 108, 160 L.Ed. 2d 128 (2004).

We must determine whether the police violated defendant's constitutional rights by following him, without a warrant or consent, into a bedroom to investigate a report of loud screaming, in particular after defendant had given a plausible explanation. We hold that a limited warrantless search, seeking only to determine if any person needed aid, was reasonable under the circumstances and, therefore, did not violate defendant's Fourth Amendment or State constitutional rights. We affirm the trial court's order denying defendant's motion to suppress evidence.

The facts developed at the suppression hearing are not disputed. At about 7:30 p.m. on February 17, 2007, State Police dispatch received an anonymous 911 call reporting loud screaming coming from defendant's residence in Farmingdale, Monmouth County. Trooper Thomas Holmes and a fellow trooper responded to the call. They heard and saw nothing unusual from outside the residence. They knocked on the door and announced that they were the State Police.

Within a reasonable time, defendant opened the door dressed only in a bathrobe. Otherwise, defendant's demeanor and conduct were normal, and he was completely cooperative. When told about the report of screaming, defendant invited the troopers to step inside and explained that the screaming came during loud sex with his girlfriend. The troopers asked to talk to the girlfriend. She came from upstairs wearing only a towel and confirmed defendant's explanation.

Trooper Holmes asked to see identification. Defendant said that his identification was upstairs in his bedroom, and Trooper Holmes told him to get it. As defendant walked to the stairs, Trooper Holmes followed. Defendant expressed no objection. Walking up the stairs, Trooper Holmes smelled the odor of raw marijuana.

Upstairs, Trooper Holmes saw defendant use his foot to push a tray under a couch. He asked defendant what was on the tray, and defendant soon admitted that the tray contained marijuana. In defendant's bedroom, the trooper saw in plain view a number of growing marijuana plants, as well as bagged and loose marijuana. He placed defendant under arrest.

Defendant later consented to a search of his home, signing State Police authorization forms. The Police seized fifteen growing marijuana plants, 12.5 ounces of loose or bagged marijuana, and various equipment and paraphernalia for growing and distributing marijuana.

Among other marijuana charges, defendant was indicted on a first-degree charge of maintaining or operating a facility for the production of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-4. After the trial court denied his motion to suppress all evidence seized from his residence, defendant pleaded guilty conditionally to the first-degree charge. He was sentenced in accordance with his plea agreement to ten years in prison with thirty-nine months to be served without parole. Defendant posted bail pending this appeal.

In reviewing a motion to suppress evidence, an appellate court must defer to the trial court's fact findings and "feel" of the case and may not substitute its own conclusion regarding the evidence, even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)); State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007).

Defendant does not contend that the police violated his constitutional rights by coming to his door and questioning him about the report of loud screaming. Nor does he challenge their request for identification. See State v. Sirianni, 347 N.J. Super. 382, 390 (App. Div.), certif. denied, 172 N.J. 178 (2002). Defendant focuses his argument on ...


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