May 28, 2010
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
STEVEN BLOOM, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-08-00300-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2010
Before Judges Payne and Waugh.
The State appeals, by leave granted, from an order suppressing the evidence obtained by the New Jersey State Police from searches conducted without a warrant and, later, with a warrant at the condominium residence of defendant, Steven Bloom.
As the result of the searches, defendant has been charged with ten counts of second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7b, one count of third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:339-5f, one count of fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3j, one count of third-degree possession of a destructive device, N.J.S.A. 2C:39-3a, one count of third-degree possession of a controlled dangerous substance, Methamphetamine, N.J.S.A. 2C:35-10(a)(1), and one count of third-degree possession of a controlled dangerous substance, Methadone, N.J.S.A. 2C:35-10(a).
On appeal, the State raises the following arguments for our consideration:
THE TROOPERS LAWFULLY ENTERED THE RESIDENCE AFTER BEING INVITED INSIDE BY THE DEFENDANT.
THE OBSERVATION OF THE GUN CASE IN CLOSE PROXIMITY TO THE DEFENDANT PROVIDED THE OFFICER WITH REASONABLE SUSPICION THAT THE DEFENDANT WAS ARMED AND DANGEROUS.
THE REMAINING EVIDENCE WAS IN PLAIN VIEW.
The events giving rise to this matter took place on March 10, 2008. According to the record of the suppression hearing held in this matter, at 8:00 that morning, a neighbor living across the street from defendant made a noise complaint to the State Police, which had jurisdiction over the area, arising from conduct that had occurred at defendant's residence at approximately 2:00 a.m., but thereafter had ceased. Three patrol officers in three separate cars responded to the complaint: Trooper Nugnes, Trooper Serowick and Trooper Miller. Trooper Nugnes led the investigation and was the only person to testify on the State's behalf at the suppression hearing regarding the events occurring on March 10. He testified that, upon arriving at the condominium complex where the complainant and defendant resided, Nugnes first went to the complainant's residence and spoke to her. The troopers then proceeded to defendant's residence. Nugnes testified on direct examination that the troopers rang defendant's doorbell. Defendant then came outside, Nugnes attempted to explain why the troopers were there, and defendant "at that time asked us to come in." Nugnes observed that it was cold that morning, and defendant was barefoot. On cross-examination, Nugnes added that defendant had first put his dogs in their cages before he had stepped outside.
A picture marked as a defense exhibit at trial discloses that the front door to the condominium was in a recess in the front of the building. The door itself had a fan light in the uppermost portion of the door's three panels. Directly inside the door was a hallway, with a kitchen to the right. The hallway led to a unified space consisting of the dining room and then the living room. A pass-through had been cut on the common wall between the kitchen and the dining room, and a thermostat was located on that wall at a position that could not be viewed from the front door or the hall.
The living room contained a couch facing the back wall of the condominium and a smaller sofa placed at right angles to the couch on its left. A small coffee table was located in front of the couch. The room also contained two dog cages for defendant's pit bulls.
According to Nugnes, upon his entry into the condominium, he smelled the odor of burnt marijuana. Additionally, while still in the hallway, he noticed a police badge hanging from the thermostat and two used hypodermic needles on the "landing" of the pass-through between the kitchen and the dining room. When asked, defendant stated that the police badge was a toy. After questioning defendant about the badge, Nugnes testified that he asked defendant to have a seat on the couch, stating he "felt more comfortable with him sitting down." Nugnes stated on cross-examination that defendant had preceded him into the living room.
Nugnes testified that defendant complied with his request to sit on the couch. In response to a question by Nugnes regarding the needles, defendant stated that they belonged to his girlfriend. However, according to Nugnes, while standing on the other side of the coffee table from where defendant was sitting, he observed track marks in the webbing of defendant's toes and under his toenails.
At that point, Nugnes testified that he noticed a Glock gun case on the adjacent sofa approximately four feet from defendant. When asked, defendant stated that the case was empty, but it in fact contained two revolvers, a Smith and Wesson and a Rossi, and an unrelated magazine clip. Nugnes asked for defendant's gun license and, at that time, he observed loose marijuana residue, a glass pipe and a large fold of money on the coffee table that later was determined to be in the amount of $1,143. "Immediately after that," Nugnes observed defendant reaching his left hand down between the cushions and the end of the couch and pushing something into the space. Nugnes claimed that he grabbed defendant's hand and retrieved another glass pipe. At this point, according to Nugnes, defendant was placed under arrest and handcuffed. A post-arrest search revealed a nine-millimeter handgun and a Tupperware container with marijuana and baggies in it located under a blanket lying on the couch where defendant had been sitting.
Thereafter, defendant was taken to the Hope Barracks for processing. According to Nugnes, a trooper remained at defendant's residence to secure it pending issuance of a search warrant.
Nugnes testified that the initial complaint by the neighbor concerned only noise, he denied suspecting drug dealing, and he did not recall the complainant mentioning drugs when interviewed on site. He lacked any answer as to why so many officers had responded to a complaint of noise occurring six hours earlier, other than to say that the troopers were in the area. Nugnes stated that he did not know defendant prior to March 10.
Following defendant's arrest and transport to the Hope Barracks, defendant gave a statement to Sergeant Thomas Leahy in the presence of Nugnes and a detective.*fn1 Our review of that statement suggests that defendant was unaware of the true reason for his arrest, and that through much of his interrogation, he was under the impression that he was being held for contempt as the result of his admitted failure to pay a speeding ticket previously issued in Bridgewater.
When asked, defendant admitted that he was a heroin addict, that he was presently on Methadone maintenance, that he had smoked marijuana the day before his arrest, and that he might have taken a hit before the police arrived. Defendant stated that the noise that led to the neighbor's complaint occurred upon the departure from the condominium of defendant's cousin, Michelle, at approximately midnight. When she left, both dogs commenced barking loudly, and defendant's three parrots all started screeching.
In describing the events of the morning of March 10, defendant stated that he had fallen asleep on the couch while watching television. He had awakened and was about to make a pot of coffee when the troopers knocked. Defendant recounted in his statement: "Well they said do, do you mind if we come in. I mean I wasn't gonna make 'em stand out in the freezing cold. . . . I, yeah, I let 'em in." As the questioning turned more specifically to the events of the morning, defendant remarked that the police were starting to ask "[v]ery personal questions about a noise complaint," requested his attorney and invoked his right to silence, but the police continued their questioning, focusing on whether the guns found at defendant's premises were legal. At this point, defendant declared that the guns were not illegal, and the following exchange occurred:
SB: . . . You came into my personal home.
TL*fn2 No you let us in.
SB: No, I let the police officer walk into my front . . .
TN*fn3 Sit down.
SB: First of all, I never, first of all, over a noise complaint, when do four or five cops show up at your house? Okay.
I tried to be a nice guy and let the police officer walk into my door and stand in front of my door. I didn't let five police officers walk around my home with flashlights going through my stuff. I did not accept that. And I did not sign that. And did not allow, because . . .
Defendant then admitted that Nugnes, personally, had not gone through his whole house with a flashlight and had been "very nice" to him. However, as Nugnes attempted to continue the interview, defendant again invoked his right to an attorney, and the interview was terminated.
At the suppression hearing, defendant, who testified on his own behalf, again stated that the noise complaint had been generated as the result of circumstances surrounding the departure of his cousin, Michelle. He then testified that at 8:00 a.m. on March 10, he had awakened when he heard the doorbell, he had walked to the door and cracked it, and he had seen three to four police officers and cars. Defendant testified: "I told the officer to give me a minute so I could put my dogs in their crates and put shoes on and a sweatshirt and I would be right out." However, as he was putting his second dog into its crate, he looked up and "the door was open [and] they were just standing in my house." The officers stated that they were there on a noise complaint and, as defendant spoke to Nugnes about it, the other two officers, who were "being pretty aggressive with me," simply "walked past me and walked into my living room."
According to defendant, Nugnes initially spoke to defendant about the noise complaint. However, after defendant's name had been run through the police's computer, Nugnes informed defendant that he was wanted for contempt arising from his failure to pay a speeding ticket. He was then arrested and handcuffed. While this was occurring, the other two officers were in the living room, where they saw the Glock gun box.
Nugnes then brought defendant to his vehicle for transport, and the other two officers remained at defendant's residence. Defendant denied that the thermostat from which the police badge was hanging could be seen from the front door. Additionally, he denied sitting on the couch, testifying: "They didn't give me a chance to go anywhere near the couch." He also denied that syringes placed in the pass-trough could be seen from the front door or hall, and he denied having track marks on his feet, although he admitted to having used marijuana on the prior day.
When confronted by his statement admitting that he had let the police enter his condominium, defendant testified:
I didn't invite them to come in but they were already in so I didn't put up a fight with them. You know, I just wanted to see what they wanted. And it was freezing out. I didn't have shoes on. But I didn't open the door and let them in. They were already in. And I - I was just trying to find out what they wanted and figured they were going to tell me whatever they needed and then they were going to leave.
But the other two officers kind of just got aggressive and walked past me while Officer Nugnes, you know, sat there and spoke with me.
Defendant denied ever stepping outside the door to speak with the police.
Defendant admitted to having a record of four prior felonies and fourteen arrests. Defendant testified that if he had known he was being charged with the crimes he is presently facing, he would have stated to the police earlier that he wanted to speak with his attorney.
In a written opinion rendered on July 20, 2009, the motion judge granted suppression. In reaching this result, the judge noted that Trooper Nugnes was the sole witness to offer proof with respect to the reasonableness of the troopers' actions in conducting the warrantless search and seizure at issue. The judge noted that Nugnes had testified at the hearing "that it was mere happenstance" that three New Jersey State Troopers responded to the initial noise complaint in the matter and that he testified that, prior to that morning, the troopers were unfamiliar with defendant and his address. However, in his affidavit in support of the issuance of a search warrant, Nugnes referenced an incident that had occurred six months prior to the noise complaint "that involved troopers from the Hope Barracks who responded to a call involving an individual who had overdosed in the defendant's bathroom."*fn4 The judge also noted that the court's record contained the statement of the complaining witness disclosing her suspicion that defendant was involved in drug sales.*fn5 The judge observed:
The court finds it difficult to believe that the complainant did not mention any of her concerns regarding the defendant's alleged drug activity to the troopers when they spoke with her before knocking on the defendant's door. The court finds it difficult to believe that none of the troopers was familiar with the defendant or the defendant's address as a result of the incident that occurred six months prior. Finally, the court finds it unusual for three troopers to respond simultaneously to a noise complaint.
The court does not raise these questions for the purpose of analyzing the troopers' subjective motive or intent when they knocked on the defendant's door, for a judge cannot and should not be required to weigh the motives guiding an officer's behavior. State v. Bruzzese, 94 N.J. [210,] 222 [(1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984)]. However, in order for this court to validate the constitutionality of this particular search and seizure, the court must be able to accept the facts as presented by Trooper Nugnes in order to determine whether or not the troopers' actions were objectively reasonable.
The State failed to present the testimony of the other two troopers in order to corroborate Trooper Nugnes' testimony regarding the sequence of events leading to the troopers' entry into the defendant's apartment. Based on Trooper Nugnes' testimony, the troopers waited patiently on the front porch while the defendant put his dogs in their crates and, then, were invited into the defendant's home by the defendant.
Again, the court finds this factual scenario difficult to accept. If the troopers did, in fact, wait for the defendant while he put his dogs away, then the defendant would have had the opportunity to conceal at least some of the contraband found in plain view within his apartment. Conversely, if the defendant was unable to conceal the contraband within his home, it is unbelievable that he would have invited the troopers into his home knowing that he had contraband strewn in plain view about his house.
The judge continued by stating if Nugnes's testimony that defendant voluntarily permitted the troopers to enter the hall were accepted as true, he still had difficulty in putting any faith into Nugnes's testimony regarding plain view of the evidence when the photograph introduced at the hearing demonstrated that the thermostat bearing the police badge that Nugnes testified to seeing from the hall could not be viewed from that location. Rather, he would have had to have initially stepped beyond the hall, contrary to the testimony given at the hearing. As a consequence the judge stated that he "[could not] credit [Nugnes's] testimony regarding the actions he took once he entered the defendant's apartment." Citing to Bruzzese, the judge found that the troopers' search of the premises exceeded the scope of any consent given to them, and that fact was fatal to the State's contention that this was a plain view seizure. Further, the judge held that:
The odor of marijuana did not create an exigent circumstance justifying their search because they did not have probable cause to believe that something more than a disorderly persons offense had been committed until they had already initiated a search. The court cannot blur the boundaries between discrete exceptions to the warrant requirement in order to validate this search.
The judge therefore concluded:
When considering the totality of the State's evidence, the implausibility of Trooper Nugnes' uncorroborated testimony causes a preponderance of the evidence to weigh in favor of the defendant's version of the search and seizure of his home. As such, the court finds that the evidence seized within the defendant's home was discovered as the result of an unconstitutional search.
Further, the judge held that the evidence seized pursuant to a warrant constituted fruit of the poisonous tree pursuant to Wong Sun v. U.S., 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed. 2d 441. 455 (1963), and that it likewise must be suppressed.
The scope of our review of a decision such as that rendered by the motion judge in this case is narrow. We are permitted to reverse only if the judge's findings are not supported by substantial credible evidence in the record. State v. Johnson, 116 N.J. 99, 102 (1989); State v. Elkwisni, 384 N.J. Super. 351, 366 (App. Div. 2006), aff'd 190 N.J. 169 (2007). Further, we must give deference to those findings of the motion judge that are substantially influenced by his opportunity to hear and see the witnesses and to have the sense of the case that we necessarily lack. State v. Elders, 192 N.J. 224, 244 (2007); State v. Johnson, 42 N.J. 146, 161 (1964). It is only the judge's legal conclusions that we review de novo. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005); Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Warrantless searches such as the one initially performed at defendant's premises are presumptively unreasonable, and for that reason, they are prohibited unless they fall within a recognized exception to the warrant requirement. State v. Wilson, 178 N.J. 7, 12 (2003). In this case, the State first argues that no search of defendant's premises was intended, and that the police were present there as lawful social guests or business invitees. The State relies in this regard on State v. Padilla, 321 N.J. Super. 96, 107-08 (App. Div.) certif. denied, 162 N.J. 198 (1999). However, we find Padilla to be distinguishable. In that case, the police received an anonymous tip that an Hispanic male had been observed, with others, entering a motel room while carrying a gun. Seeking to investigate, the police knocked on the motel room's door and were permitted entry by one of the occupants. Once inside, the police observed drug paraphernalia, cash, weapons, and ammunition. On appeal from a denial of defendant's suppression motion, we affirmed, finding that the police had the right and indeed the duty to investigate the gun possession complaint, that there was nothing unreasonable about their request for permission to enter the motel room, and because the police merely sought to continue their investigation, not to search the premises, the room's occupants did not need to be informed that they had a right to refuse consent to entry. Ibid.
In contrast, in the present case, the judge accepted as credible defendant's testimony that, although Nugnes's conduct may have appeared to be merely investigatory, the other two officers pushed past defendant in an obvious attempt to view the entire first floor area of the condominium unit.*fn6 Thus, the evidence as supported by the record and accepted by the motion judge establishes that the police sought to do more than enter to continue their investigation, and the holding of Padilla is inapposite.*fn7 In the circumstances presented, the State was required to demonstrate that an exception to the warrant requirement validated their warrantless search of defendant's dwelling.
Even if we assume that defendant invited or permitted the police to enter into the hall of his condominium, we find no legal justification for their further intrusion into the living portion of the unit - an area for which the judge found consent to enter was not provided. Such an intrusion was not required in order for the police to complete their announced mission of investigating a noise complaint, and it could not have been reasonably contemplated by defendant when he allegedly permitted entry into the hall. Further, as the motion judge pointed out in his written opinion, the fact that the police smelled burnt marijuana upon entering the condominium was insufficient to establish exigent circumstances justifying a search for its source beyond the confines of the hall. State v. Holland, 328 N.J. Super. 1, 10 (App. Div.), certif. denied, 164 N.J. 560 (2000). Nor did the discovery of the police badge hanging from the thermostat or the discovery of the hypodermic needles in the pass-through between the kitchen and dining room justify the police's progress into defendant's living quarters. As we have discussed, competent evidence adduced at the suppression hearing and accepted by the motion judge established that those items could not be seen from the hall area entered initially by the police. Thus an unlawful intrusion was required prior to the discovery of the suspicious items. Bruzzese, supra, 94 N.J. at 229 (recognizing that spatial limits may be imposed upon a consent to enter).
The State contends that the warrantless seizure of the items found in defendant's living room was justified as the result of the plain view doctrine. However, "[t]he plain view doctrine requires the police officer to lawfully be in the viewing area." State v. Johnson, 171 N.J. 192, 206 (2002) (citing Coolidge v. New Hampshire, 403 U.S. 443, 470, 91 S.Ct. 2022, 2040, 29 L.Ed. 2d 564, 585 (1971)). In this case, the facts as found by the motion judge establish that the police were not present in such a location. As a consequence, the doctrine is inapplicable.
In its second point, the State argues that observation of the Glock gun case in close proximity to defendant provided the trooper with reasonable suspicion that defendant was armed and dangerous, thereby justifying a further search. The difficulty with this argument is that it, like the State's other arguments, is premised on the presumption that the police's presence in defendant's living room was legal. The motion judge found that it was not, and we find that conclusion to be factually and legally supported. Moreover, the State's view requires acceptance of the State's position that defendant led the police into his living room and complied with Nugnes's request that he seat himself on the couch. Defendant denied that this version of events was correct, and the trial judge credited defendant's testimony.
We find the State's remaining arguments to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Having found the determination by the motion judge to have been based upon competent evidence in the record, and to have been legally supported, we affirm the suppression both of the evidence seized as the result of the police's warrantless search and the evidence seized pursuant to a warrant, concurring in the judge's conclusion that it constituted fruit of the poisonous tree. This case pitted the credibility of a State Police trooper against that of defendant. In a cogent opinion, the motion judge found defendant to be the more credible of the two. We find no ground to reverse that conclusion.