On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-3890.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 22, 2010
Before Judges Rodríguez and Chambers.
After defendant Altirick Goldsmith's motion to suppress evidence was denied, he entered a negotiated plea of guilty to third degree possession of CDS, N.J.S.A. 2C:35-10a. The State agreed to recommend dismissal of related charges and to a "time served/probation" recommendation. The judge imposed a probationary three year term with a special condition of 270 days in jail, which defendant had already served; to remain employed; follow through with counseling at the Bethel Counseling Center; urine screening; and to remain drug free.
The proofs presented at the hearing on the motion to suppress evidence can be summarized as follows. On August 11, 2006, three detectives from the Newark Police Department's Fugitive Apprehension Unit executed an arrest warrant for co-defendant Shawntay Thompson at her apartment located in a building on Grove Street. The warrant was based on a charge of possession of three envelopes of heroin. Detective Fletcher testified at the hearing that he obtained the arrest warrant that same day. Together with Detectives Pracher and Froster, they went to Thompson's apartment on Grove Street. Detective Fletcher knocked on the apartment door. Thompson answered. He advised Thompson that he had a warrant for her arrest.
Thompson was not completely dressed. She requested time to get properly dressed. The detectives agreed. As Thompson stepped back into her apartment, she left the door partially opened. Fletcher saw defendant in the apartment. Defendant was moving from the front room toward the bedroom. The detectives, who were then still in the hallway, then stepped into the apartment without giving any indication of their intention or requesting permission to enter the premises.
After entering the apartment, the detectives saw a trail of empty red baggies leading from the front room to the bedroom. The detectives followed Thompson and defendant into the bedroom. They entered the bedroom. In the bedroom, the detectives saw empty red and peach plastic baggies, a clear plastic baggie containing a substance suspected to be cocaine and a razor sitting on a plate toward the edge of the bed. Froster took possession of the suspected cocaine and paraphernalia. As he did so, he observed two handguns protruding from underneath the bed. Froster seized the suspected cocaine, paraphernalia and guns.
At the conclusion of the motion to suppress hearing, the judge found that the testimony of the police officer was credible. She concluded that they had the right to enter the apartment. According to the judge, once they saw defendant "scurry past with what was characterized as suspicious . . . behavior," the detectives had a right to enter and seize the drugs that were in plain view.
On appeal, defendant contends:
THE POLICE ENTRY INTO THE CO-DEFENDANT'S [SHAWNTAY THOMPSON] APARTMENT CONSTITUTED AN UNLAWFUL SEARCH[;] THEREFORE[,] THE EVIDENCE SEIZED FOLLOWING THE ENTRY SHOULD HAVE BEEN SUPPRESSED.
We disagree and affirm the denial of the motion to suppress.
The Fourth Amendment to the United States Constitution, as well as Article I, paragraph 7 of the New Jersey Constitution, protects an individual against unreasonable searches and seizures. U.S. Const. Amend. IV, N.J. Const. Art. 1, ¶ 7. However, it is not unreasonable for an arresting officer to maintain custody over an arrestee, absent an affirmative indication that the arrestee might have a weapon available or might attempt to escape. Pennsylvania v. Mimms, 434 U.S. 106, 109-110, 98 S.Ct. 330, 332-33, 54 L.Ed. 2d 331, 335-37 (1977).
In 1982, the United States Supreme Court solidified this right in Washington v. Chrisman, 455 U.S. 1, 5-7, 102 S.Ct. 816-17, 70 L.Ed. 2d 784-85 (1982), where an officer accompanied a college student to his dorm room to obtain identification. In Chrisman, the arresting officer was initially waiting by the door of the room while executing an arrest. Id. at 3, 102 S.Ct. at 815, 70 L.Ed. 2d at 783. When the officer observed the student's roommate, Chrisman, acting nervously, he entered the room to find contraband in plain view. Id. at 4, 102 S.Ct. at 815, 70 L.Ed. 2d at 784. The Supreme Court held that an officer has the right to remain at an ...