March 3, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
SHAREEF EDMONDS, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 08-04-0645 and 08-04-0651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 14, 2011 - Decided
Before Judges Lisa, Reisner and Sabatino.
By leave granted, the State appeals from a December 1, 2009 order suppressing evidence of a handgun seized during a warrantless search. We affirm.
This appeal arises from proceedings on remand from our earlier decision in State v. Edmonds, No. A-3367-08 (App. Div. Oct. 7, 2009). In that opinion, we affirmed Judge Frederick P. DeVesa's January 16, 2009 determination that the search which uncovered the handgun was not justified under the emergency aid doctrine. See State v. Frankel, 179 N.J. 586, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). However, on appeal the State raised an additional argument, premised on a case decided after the trial court rendered its decision. We therefore remanded the case to the trial court to consider whether the search was justified as an exercise of the police community caretaking function, under the recently-decided case of State v. Bogan, 200 N.J. 61 (2009).
Mindful of the sparse record before the trial court, consisting of stipulated documents with no live testimony, our opinion also permitted the trial court "in its discretion, [to] reopen the record for testimony." Edmonds, supra, slip op. at
7. But on remand, the State once again did not present testimony from the police officers who conducted the search, and continued to rely on the existing record.
As described in our earlier opinion, the police received a 9-1-1 call concerning alleged domestic violence possibly involving a firearm. As the prosecutor described the 9-1-1 call at the first argument before Judge DeVesa, "they got a call that a woman was getting beaten and there's a gun involved."*fn1 When the police arrived, the alleged victim, Kamilah Richardson, met them at the downstairs doorway and told them that "there was no problem at the residence." The police report reflected no observation of any physical signs that Richardson had been beaten. She emphatically did not want the police to enter her home, and told them that only her eleven-year-old son was in the apartment.
The police insisted on entering the premises, and found her son unharmed in the living room. However, in a room to the left of the living room, the police noticed defendant sitting in a chair watching television. The police report indicated that defendant was "known" to them, but did not indicate how they knew him. After ordering defendant to stand and "put his hands up," the officers removed defendant from the room where he was watching television. They then patted him down for weapons and found nothing.
After searching defendant and finding no weapons, two officers guarded him while a third officer returned to the room in which defendant had been sitting and started searching that room for weapons. He found a handgun under a pillow on a mattress located on the floor near the chair in which defendant had been sitting. Defendant admitted that the gun was his, and the police arrested him. They also arrested Richardson, the alleged victim of domestic violence, for "obstruction."
On the remand, Judge DeVesa found that in searching the television room the police were not exercising their community caretaking function. Rather, they were impermissibly looking for evidence of crime without a search warrant. In an oral opinion placed on the record on November 17, 2009, the judge concluded:
[O]bviously the police had a duty to respond . . . to Ms. Richardson's apartment and they may have even had the duty to knock on the door or ring the bell just to make sure everything was okay inside. And that would all be part of the community caretaking function, if you will. But it's clear to me that once they got to the apartment, once they saw Ms. Richardson not having any type of injuries or appearing to have been assaulted in any way, once they opened - got to the door and had the child open the door and he, too, did not appear to be in any sort of distress, the community caretaking function really ceased at that point. If not . . . it ceased once they saw Mr. Edmonds and he didn't appear to be engaged in any unlawful activity.
I think what is clear here is that once they saw Mr. Edmonds, and they're familiar with his background, they just decided they should take it further and search . . . the immediate area that he was occupying. And I don't believe at that point they were doing that to protect the safety of Ms. Richardson or her son. . . . [T]hey were searching for evidence.
Amplifying this conclusion, the judge continued:
The [c]court finds that once they saw Ms. Richardson was not in any distress or they saw no visible signs of any type of assault, once they saw Mr. Edmonds sitting in the adjoining room, I believe the police then got influenced more by their desire to uncover evidence of criminality on the part of Mr. Edmonds than to engage in any activity that was designed to promote the safety of Ms. Richardson or her son. So I think that the police were at that point in the evidence gathering mode, if you will, and they did not have probable cause. They did not have consent to search. There was no recognized exception at that point to the warrant requirement. So the Court again concludes that the evidence of the gun that was found must be suppressed.
Accordingly, Judge DeVesa entered a second order, dated December 1, 2009, again suppressing the evidence. We granted the State's motion for leave to appeal from that order.
On this appeal, we are mindful of the well-established limitations on our review of the trial court's decision to grant the suppression motion. We are bound to consider "only whether there was sufficient credible evidence to support the trial court's findings." State v. Elders, 192 N.J. 224, 231 (2007). We may not "review the evidence de novo or act as a factfinder in the first instance." Ibid. It is not our role to second-guess the judge's factual findings, even if they were drawn from a cold record such as a videotape or, in this case, stipulated documents. Id. at 244-45.
As the Court held in Elders, another case in which Judge DeVesa granted a suppression motion:
The motion judge was entitled to draw inferences from the evidence and make factual findings based on his "feel of the case," and those findings were entitled to deference unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice required appellate intervention. A disagreement with how the motion judge weighed the evidence in a close case is not a sufficient basis for an appellate court to substitute its own factual findings to decide the matter. [Id. at 245 (citations omitted).]
In this case, we conclude that Judge DeVesa's factual findings were based on the evidence presented to him and inferences reasonably drawn from that evidence. In light of his factual findings, we agree with Judge DeVesa that the search was unconstitutional.
A warrantless search is "presumptively invalid," unless the State satisfies its burden of proving that the search was justified under "'one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19 (2004)(quoting State v. Maryland, 167 N.J. 471, 482 (2001)). In State v. Bogan, the Court held that a very limited entry into a dwelling to ensure the safety of a young child was justified under the police community caretaking function. Bogan, supra, 200 N.J. at 75. However, we agree with Judge DeVesa that Bogan is not on point here.
The factual scenario in Bogan was starkly different than the one in this case, and the police response there did not include a search of the premises.
Under the pretext of offering a fourteen-year-old female student a car ride to school, defendant Anthony Bogan instead took her to an apartment where he sexually molested her. That same morning, the student reported the crime to the police and gave a description of defendant and the precise location of the apartment. When the police proceeded to the apartment, a nervous, young boy in pajamas opened the door and gave inconsistent responses to simple questions. When the boy answered the telephone inside the apartment, he handed the receiver to one of the officers to speak with his parent. The officer, who stepped inside the apartment to take the call, then saw defendant--who fit the description of the alleged molester--lying on a bunk bed. On-site officers entered the apartment and arrested defendant, who afterwards made incriminating statements. [Id. at 64.]
At the suppression hearing in Bogan, the State presented the testimony of the police officers involved. Finding the officers credible, the trial judge concluded that under these circumstances the limited entry into the apartment was justified to ensure the child's safety. He also considered that after entering the premises, the police observed defendant in plain view, and "other than arresting defendant, no search of the premises was conducted." Id. at 69.
The Court agreed that the police acted properly to secure the well-being of an apparently unsupervised child left alone in the apartment. Id. at 79. However, the Court cautioned that "the community caretaking responsibility must be a real one, and not a pretext to conduct an otherwise unlawful warrantless search." Id. at 77.
In this case, the police had neither consent to enter Richardson's home nor consent to search the premises. Unlike Bogan, there was no evidence that the child was alone or unsupervised. He was at home with his mother. Even after entering the apartment, the police found no evidence of any domestic violence. There were three officers on the scene, and as we concluded in our prior opinion, there was no evidence of emergent circumstances. Edmonds, supra, slip op. at 5. If the police believed they had probable cause to search the apartment, they had the option of applying for a search warrant, either in person or by telephone. See State v. Pena-Flores, 198 N.J. 6, 33-35 (2009).*fn2