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State v. Sirianni

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 21, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VICTORIA I. SIRIANNI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Municipal Docket No. 003-04-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 3, 2010

Before Judges Axelrad and Fisher.

In appealing the denial of her motion to suppress evidence obtained by police after they were permitted entry into her home, defendant argues, among other things, that we should "impos[e] a strict written consent form requirement in all future warrantless home entries by law enforcement." Because such a holding would run counter to the current state of the law -- particularly the Supreme Court's recent decision in State v. Domicz, 188 N.J. 285 (2006) -- we reject defendant's arguments and affirm.

The record reveals that, at 3:22 a.m., on July 21, 2008, Officer Anthony Lugo responded to a call that a utility pole had been sheared in half at an intersection in Fair Lawn. He found a car bumper, with a license plate still attached, approximately ten to fifteen feet from the damaged pole. The officer investigated further and determined that the owner of the vehicle to which the bumper belonged lived in Saddle Brook. In the company of other officers, Officer Lugo found near the owner's residence a black Volkswagen with the same license plate number and with damage consistent with the damage left in Fair Lawn. The officers rang the doorbell and the door was answered by Richard Sirianni, the homeowner and registered owner of the vehicle in question.

Officer Lugo testified at the suppression hearing that Sirianni was advised of the reasons for the officers' presence and that Sirianni told the officers they were "welcome... to come into the home. He invited us into the home." Officer Lugo acknowledged he did not tell Sirianni that he did not have to allow the officers entry.

Sirianni said his daughter, the defendant herein, had been driving the vehicle, and he went upstairs to retrieve her. As they came downstairs, Lugo observed that defendant was "staggering, swaying." Defendant produced her driver's license, and Lugo asked if she was injured and inquired as to what had happened. Defendant's speech was slurred. She acknowledged she had been drinking, left a bar at about 3:00 a.m., and was in an accident. Defendant also stated that she had the tow truck driver leave the Volkswagen down the road from her home so her father would not learn of the damage. Based upon her appearance and speech, Lugo believed defendant was intoxicated and placed her under arrest.

Defendant was charged with: driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a breathalyzer, N.J.S.A. 39:4-50.2; careless driving, N.J.S.A. 39:4-97; driving while suspended, N.J.S.A. 39:3-40; leaving the scene of an accident, N.J.S.A. 39:4-129; and failure to report an accident, N.J.S.A. 39:4-130. Following the municipal judge's denial of her motion to suppress evidence, defendant entered a conditional guilty plea and, as a third-time DWI offender, was sentenced to 180 days in the county jail, a ten-year suspension of her driving privileges, and a fine and other monetary assessments. Her sentence was stayed pending her appeal.

The Law Division judge came to the same conclusions as the municipal judge, and imposed the same sentence, but refused to stay the sentence pending appeal. We also refused to grant a stay.

Defendant filed an appeal to this court, presenting the following arguments:

I. THE COURT BELOW ERRED IN RULING THAT RICHARD SIRIANNI'S ALLEGED "INVITATION" TO THE POLICE WAS NOT INADMISSIBLE HEARSAY; DEFENDANT'S SIXTH AMENDMENT CONFRONTATION AND NEW JERSEY CONSTITUTIONAL RIGHTS WERE VIOLATED (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PARAS. 7 AND 10).

II. THE POLICE ENTRY INTO THE DEFENDANT'S HOME WAS UNLAWFUL AS THEY FAILED TO SECURE AN ARREST WARRANT AND NO EXCEPTION TO THE WARRANT REQUIREMENTS EXISTS IN THIS "KNOCK AND TALK" CASE; THE POLICE FAILED TO ADVISE THE HOMEOWNER OF THE CONSTITUTIONAL RIGHT TO REFUSE ENTRY IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTIONS.

III. THE POLICE ENTRY INTO THE DEFENDANT'S HOME WAS UNLAWFUL AS THEY FAILED TO SECURE AN ARREST WARRANT AND THERE WERE NO "EXIGENT CIRCUMSTANCES" JUSTIFYING THE ENTRY IN VIOLATION OF THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

IV. THIS COURT SHOULD ESTABLISH A NEW RULE OF LAW REQUIRING THAT POLICE SEEKING ENTRY TO A HOME AND PERMISSION TO SEARCH ADVISE THE OWNER OF HIS CONSTITUTIONAL RIGHT TO REFUSE ENTRY AND THAT ANY CONSENT BE PLACED IN WRITING PRIOR TO ENTRY (NOT RAISED BELOW).

V. SINCE THE OFFICER'S QUESTIONING WENT BEYOND MERE INVOLVEMENT IN THE ACCIDENT BUT WAS EXPANDED TO INCLUDE A FURTHER INVESTIGATION INTO THE DEFENDANT'S POSSIBLE OPERATION OF THE VEHICLE UNDER THE INFLUENCE, MIRANDA WARNINGS SHOULD HAVE BEEN GIVEN PRIOR TO QUESTIONING THE DEFENDANT REGARDING HER CONSUMPTION OF ALCOHOLIC BEVERAGES (NOT RAISED BELOW).

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding Point IV.

In Point IV, defendant invites this court to impose the same requirements that apply when law enforcement seeks consent to search a motor vehicle to when consent is sought to search a home. Although defendant recognizes that a closely-divided Supreme Court rejected a similar argument in Domicz, supra, 188 N.J. at 304-10, she urges that we should disagree with Domicz in order to make more likely Supreme Court review.

Defendant misconceives this court's role. We may disagree but we have no right to refuse to adhere to our Supreme Court's holdings. Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415 (1961). And we reject defendant's brazen argument that a mere change in the Court's membership suggests some lack of vitality in the Court's four-year old holding or demonstrates that Domicz will be short-lived. Stare decisis is made of sterner stuff than defendant believes, and Domicz's duration is for the Supreme Court to determine, not us. Franco v. Davis, 51 N.J. 237, 238 (1968). Until such time, if ever, the Court overrules Domicz, the doctrine of stare decisis compels our obedience to it. Accordingly, we reject defendant's argument that police are required to advise a resident, either orally or in writing, of the right to refuse to consent to their entry into the home.

Affirmed.

20100621

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