On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1371.
The opinion of the court was delivered by: Ashrafi, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Carchman, Parrillo and Ashrafi.
Defendant Riley Jefferson appeals from an order of the trial court denying his motion to suppress evidence. We reverse.
Defendant entered a conditional plea of guilty to second-degree possession of cocaine with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-5a(1) and -5b(2). In accordance with his plea agreement with the State, other charges were dismissed and defendant was sentenced to five years' imprisonment and money penalties as required by statute. At the time the State filed its brief on this appeal, defendant had been released on parole.
The charges against defendant arose from warrantless police searches of his person and his residence. After indictment, defendant moved to suppress cocaine and related evidence found by those searches. The trial court conducted an evidentiary hearing in which three police officers and defendant testified. Finding the officers' testimony more credible where it differed from defendant's testimony, the court concluded that the police had reasonable and articulable suspicion to detain defendant and investigate his involvement in a reported shooting of a firearm, and that they did not violate his constitutional rights by entering his home without a warrant and subsequently arresting him when he resisted them physically. On appeal, defendant argues that the trial court erred because the searches were illegal and violated his federal and State constitutional rights.
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 conclusions 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). In particular, the appellate court must defer to the credibility determinations of the trial court between competing factual testimony. Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S.Ct. 1929, 16 L.Ed. 2d 1022 (1966).
In this case, the trial court's findings of fact are well-supported by the evidential record, and we have no reason to disagree with those findings. To place the relevant facts in context, the court first noted that the City of Plainfield had been suffering through a gang war in the summer of 2005, resulting in an unusual number of shootings and deaths. On the morning of August 20, 2005, a concerned citizen called the police to report people arguing and selling drugs and a possible gunshot in the 700 block of East Front Street. The citizen described a red Grand Am, giving its license plate number. She also indicated that an African-American man was involved, describing his skin tone and head covering. The police responded to that location at approximately 9:44 a.m., but did not see anything that supported the complaint.
The police checked the plate number provided and determined it was registered to a red Grand Am owned by Tiffanie Morrison with an address in Plainfield. Within minutes, Sergeant David Passarelli, Sergeant Sharon Smith, and three other officers arrived at that address and saw a red Grand Am with the designated license number parked in the street. Sergeant Passarelli placed his hand on the hood and confirmed by the warmth that the car had recently been driven.
The address at which the car was registered was a multi-family dwelling. A solid wood exterior door and a storm door were in the front, opening into a common hallway, with apartments on each of two floors and the basement. The door was kept locked, and only the tenants and landlord had access to the common hallway. A stairway led to the second-floor apartment in which defendant Jefferson and his family lived.
According to defendant's testimony, he had recently arrived home from visiting relatives in the 700 Block of East Front Street. He saw the police from the front window of his apartment and came downstairs. The police witnesses testified they saw defendant's head and shoulder at the front door peering out. Sergeant Smith ordered defendant to show his hands as all five officers approached the front door. Defendant told Sergeant Smith he did not do anything and did not have a gun. The officers shouted for him to show his hands. Eventually, defendant showed the officers his hands around the door. The officers were still unable to see his waist area.
Sergeant Smith continued toward the door, and as defendant took a step back, the door began to open. Sergeant Smith wedged herself into the opening. Defendant attempted to close the door, and the two began to struggle with the door. Other officers saw the door strike Sergeant Smith, and they pushed it open and entered the hallway. After a brief but loud and violent struggle, the police subdued and arrested defendant for allegedly assaulting Sergeant Smith. They patted his clothing and did not find a firearm or any other weapon. Defendant was placed in a police car, and, after being advised of his Miranda rights,*fn1 he was questioned about the Grand Am and Tiffanie Morrison. He identified her as his wife and told the police she was in the second-floor apartment. Defendant was taken to police headquarters, and when searched, two bags of crack cocaine were found on his person.
After defendant was taken to headquarters, Sergeant Passarelli entered the hallway of the residence and led the officers up to the second-floor apartment. He listened at the door and heard whispered voices. He banged on the door and announced the police presence. Tiffanie Morrison opened the door with a child clinging to her leg. She and the child appeared to be afraid and upset. Sergeant Passarelli asked if anyone else was in the apartment. Morrison denied anyone else being present, but her eyes darted away from the police into the apartment, causing Sergeant Passarelli to become concerned.
The police asked if they could enter, and Morrison gave permission. The police conducted a protective sweep of the apartment. They found no other person, but they saw narcotics packaging materials and other possible evidence of narcotics. Sergeant Passarelli asked Morrison for consent to search the Grand Am, advising her that she had the right to refuse consent. Morrison consented orally and in writing at 10:15 a.m., and the police thoroughly searched the car, finding no incriminating evidence.
Sergeant Passarelli then requested consent to search the apartment. Morrison was hesitant and asked if she could seek the advice of a relative who was a police officer. Sergeant Passarelli encouraged her to do so, and Morrison made several calls attempting to contact her relative. In the meantime, the police posted ...