On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-07-2537.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2010
Before Judges Fisher and Sapp-Peterson.
The State appeals from the trial court order granting defendant's motion to suppress a handgun retrieved from the roof of a home where parole officers were attempting to apprehend another individual who had absconded from parole. We affirm.
The evidence presented by the State at the suppression hearing was largely undisputed. Responding to a tip, approximately five parole officers went to a residence in Camden hoping to apprehend a parole violator for whom there had been an arrest warrant for narcotics and prostitution offenses outstanding for several months. The address on the warrant was for a different location, but the officers had been told that the parolee was living there. Upon their arrival at the premises, the officers first set up a perimeter in order to control ingress in and egress from the property. Officer David Brooks, a ten-year veteran of the New Jersey State Parole Board assigned to the Fugitive Unit, went to the rear of the property that was secured by a fence and gate. He climbed over the fence into the backyard. Once he secured his position, officers in the front of the residence knocked on the front door. While the officers were knocking on the front door, Officer Brooks heard a window open. He looked to the location and observed curtains from a second-floor window "push out." He witnessed a male look out of an open window, reach out his arm and throw a black object approximately the size of a baseball up onto the roof.
Based upon Officer Brooks' training and experience with narcotics investigations, he suspected that the object was narcotics because he had previously observed narcotics packaged in a similar manner. He maintained his position until the other officers advised that they had not located the parolee but had detained the only Hispanic male present in the residence. Officer Brooks later identified that individual in court as the person he observed discarding a black object onto the roof. Officer Brooks then retrieved a collapsible ladder from his police vehicle, which he used to gain access to the roof above the third floor from the same second-floor window where he had observed the object being thrown onto the roof. As the officer reached the top of the ladder, he observed the "barrel of a handgun pointing at me right where I saw the black object land." He went onto the roof, retrieved the weapon, opened its cylinder and removed six hollow point rounds. He then "walked the rest of the roof" and observed no other black objects.
In granting defendant's suppression motion, the court addressed the three grounds upon which the State sought to uphold the seizure of the weapon: (1) plain view; (2) abandonment; and (3) consent. The court found that the plain view doctrine did not apply because Officer Brooks' observations took place from a location where the officer was not legally positioned to be and the officers lacked probable cause to believe that the black bag contained contraband, rejecting the testimony that the particular area was one of high crime. The court found this was second hand testimony, noting that as parole officers, their job, as distinguished from police officers, is not to investigate drug dealing in an ongoing, pro-active way. Additionally, the judge observed that it could "be said about virtually every neighborhood in the City of Camden, that there's crime that takes place there and much of that crime involves drug transactions."
Further, the court concluded that even if probable cause existed, the warrantless seizure of the black bag was not justified absent exigent circumstances. The court pointed out that at the time the black bag was seized, "[t]here was little likelihood of the object going anywhere[,]" noting that the residence had already been secured, there were only two persons found in the residence, one of whom was being detained, and that it was daylight.
Turning to the State's contention that the black bag had been abandoned, the court focused upon whether the evidence disclosed an intention to abandon the object. The court reasoned that the "most reasonable conclusion here would be that whoever tossed that item had an intention to retrieve it. Otherwise, it would have been just tossed out into the street or tossed in some other haphazard way."
Addressing the consent theory, the court acknowledged that it was a close call but reasoned:
Here, I don't think the State can rely on the consent form. The consent was a consent to search for a parole fugitive. The clear testimony here was that the purpose for going onto the roof was to retrieve an object that the officer said that he saw somebody throw from the house up onto the roof.
Just because a consent form has no limiting language in it, it's clear from the cases that the object of the search is what defines the scope of the search. So, as the famous cases go, if the object of the search is a stolen piano, then police cannot search in the drawers of a dresser, no matter whether the consent forms says that they can search everywhere and anywhere on the property.
. . . If there was a belief that the fugitive was on the roof, I believe the officers would have been justified in this consent, assuming there was apparent authority to give it, to go on the roof to search for the fugitive, but clearly here the object of the search that was being conducted or the seizure, I should say, being conducted by the officers was not the fugitive, and, therefore, I find ...