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State of New Jersey v. Anthony Alston

February 3, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY ALSTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-07-0636.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 6, 2010

Before Judges Reisner and Alvarez.

Anthony Alston appeals the January 31, 2008 denial of his motion to suppress certain evidence found in his home. Defendant was charged in Union County Indictment No. 07-07-0636 with five counts related to the manufacture, distribution, and possession of controlled dangerous substances (CDS). After the decision was rendered, he entered a guilty plea to count four of the indictment, second-degree possession of cocaine with intent to distribute. In accordance with that plea, he was sentenced to six years imprisonment, subject to three years of parole ineligibility.

On appeal, defendant asserts as follows:

POINT I

CONTRARY TO THE TRIAL COURT'S DECISION, NEITHER THE EMERGENCY AID NOR THE INEVITABLE DISCOVERY EXCEPTIONS APPLIED TO THE WARRANTLESS SEARCH OF DEFENDANT'S BEDROOM BASED UPON PURPORTED POLICE "CONCERNS" ABOUT A BARKING DOG IN THE BEDROOM AND THE ETHEREAL POSSIBILITY THAT SOMEONE WAS IN THAT BEDROOM.

We affirm based on the motion judge's reasoned and careful analysis of the facts and circumstances, and application of the emergency aid and inevitable discovery doctrines. We add only the following brief comments.

At the motion to suppress hearing, Elizabeth Police Department Narcotics Officer Joseph McDonough testified that on March 22, 2007, at approximately 2:30 p.m., he observed defendant exchange a small item for cash in an apparent drug transaction. The police stopped the suspected buyer approximately two blocks away and as the officers approached, he dropped two bags of heroin onto the ground. The police returned to the area where they had seen the drug sale and soon located defendant. He too discarded a bundle of heroin as he was approached and was immediately arrested. Defendant indicated that his house was approximately two doors away, and that his "little girl" was home alone. As a result, several officers, including McDonough, went to the apartment. Although McDonough was not the first to arrive, he recalled seeing a six-year-old child standing in the entranceway and hearing a dog growling behind a closed and locked bedroom door. He left the premises to obtain a search warrant.

Captain Patrick Shannon, who observed the drug transaction from a different unmarked vehicle, also participated in the arrest and subsequent search. Shannon testified he obtained defendant's key, and along with other officers, walked to the apartment. He knocked on the door, and the child asked "who it was." When she opened the door, he showed her his badge. The child, who Shannon estimated was seven or eight, said her father did not want people in the apartment. As they spoke, he could hear a dog barking inside.

Ten to fifteen minutes later, the child's grandfather appeared and told the officers there was another child in the apartment, a fact Shannon said "took me back a little bit" as he had been unaware of the presence of any other children. The grandfather said this second child was about two years old. At that point, Shannon walked into the apartment and found the infant on a makeshift bed in the living room area, fast asleep. He asked the grandfather to "take charge" of the child. Shannon could hear the dog barking behind the closed door; the child described the animal as "nasty" and explained that was the reason it was shut up in the bedroom. Shannon contacted police headquarters to request the assistance of a dog warden.

Eventually, two men from the Animal Control Shelter arrived with dog sticks. Shannon observed the dog trying to force his way out of the bedroom. Its paw was poking out from underneath the door, and it was growling, barking, and scratching. When a dog warden opened the door, the dog lunged out before retreating back into the bedroom. Shannon followed the dog wardens inside*fn1

and observed them place a noose around the dog's neck and pull it across the bed to drag it out of the house. As the wardens struggled with the animal, Shannon saw several bags containing heroin in plain view on a nightstand to his left. He also saw a blue plate and a "nice size chunk of rock cocaine on it, and some residue" on a dresser area behind the bed. The police remained in the apartment until the grandfather was able to locate diapers and baby formula for the infant. Shannon also testified the apartment was "filthy," ...


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