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State v. B.H.

November 3, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
B.H., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 08-03-1005 and 08-08-2504.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 5, 2010

Before Judges Wefing and Koblitz.

Defendant B.H. was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). These charges arose from an incident that occurred on April 25, 2008, in Lindenwold, New Jersey.

After unsuccessfully pursuing a motion to suppress the evidence, defendant pled guilty to third-degree possession of cocaine. He also pled guilty to third-degree possession with intent to distribute cocaine, downgraded from the original second-degree charge in another indictment stemming from an earlier arrest in January 2008. In exchange for these two guilty pleas, the State recommended that defendant be sentenced to no more than four years in prison without a term of parole ineligibility, with agreed-upon jail credit of 336 days from April 25, 2008, on both sentences (even though he was only incarcerated on one indictment during this time). The State also agreed to a six-month loss of his driver's license on both charges to run concurrent to each other. The State additionally agreed to dismiss the remaining counts of the indictment stemming from the April arrest, as well as the only remaining count of third-degree possession of cocaine from the earlier arrest.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.

In response to a complaint of a domestic dispute between a woman and a black man in a red shirt armed with a knife, the Lindenwold police were dispatched to The Greens, an apartment complex in a high-crime area, on April 25, 2008, at 11:00 p.m. When two police officers arrived they saw defendant, who met the description of the armed man. He was pushing an empty baby stroller and appeared flustered and upset. He also reached his hands into his pockets more than once. The police handcuffed defendant for their personal safety and conducted a pat-down search for the knife. Defendant's back pocket was full of papers. Fearing a knife was concealed in the papers, one officer pulled out the contents of defendant's back pocket, at which point a bag of crack cocaine fell to the ground.

Concerned about the empty baby stroller, the police were able to establish that defendant's nine-month-old baby girl lived at the same building complex in apartment number 308. Another officer went to apartment 308 to check on the well-being of the baby. This officer heard loud music and a baby screaming from inside the apartment. He knocked on the door several times and received no response. The baby's cries stopped. After calling for back-up and hearing from defendant that the door was unlocked, the officers entered the apartment and found it in disarray. Defendant's daughter was asleep wearing only a wet diaper. No one else was there. The officers searched for a clean diaper and wipes to change the child before calling the Division of Youth and Family Services. While looking for baby wipes, they found forty-three small bags of crack cocaine and other drug paraphernalia in a backpack.

On May 7, 2008, defendant filed an affidavit with the court admitting the crack cocaine found in the backpack was his, thereby exonerating the mother of his child.

Defendant raises the following single point on appeal:

DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND ALL OF THE FRUITS OF HIS ILLEGAL ARREST, INCLUDING THE DRUGS THAT ARE THE SUBJECT MATTER OF THIS INDICTMENT, SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.

Defendant argues that the trial judge did not rule on the legality of the original arrest, finding only that the police were properly in the apartment under both the community caretaking and emergency aid doctrines. Under the community caretaking doctrine police officers may enter a home without a warrant for the purpose of ensuring the safety and welfare of a child. See Cady v. Dombrowski, 413 U.S. 433, 439-48, 93 S.Ct. 2523, 2527-31, 37 L.Ed. 2d 706, 713-18 (1973); State v. Bogan, 200 N.J. 61, 73-77 (2009); State v. Garland, 270 N.J. Super. 31, 44-45 (App. Div.), certif. denied, 136 N.J. 296 (1994). Under the emergency aid doctrine police officers may enter a home without a warrant if they reasonably believe that a person inside is in need of immediate assistance. See, e.g., State v. Frankel, 179 N.J. 586, 599 (2004).

At the suppression hearing defendant maintained the officers arrested him without probable cause. He argued that the search of his back pocket was incident to an unlawful arrest. The trial judge, however, made no findings as to whether defendant was unlawfully arrested or as to the nature of the pat-down, since defense counsel's argument focused primarily on whether the officers were permitted to enter the apartment and look around for baby wipes without a warrant. We will decide the legal issues raised by defendant de novo without the necessity of remanding the matter to the trial court because the facts are not disputed. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366 (1995). We have "plenary" ...


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