On appeal from the Superior Court, Law Division, Middlesex County, Indictment No. 09-08-1386.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 16, 2011
Before Judges Fisher, Sapp-Peterson and Fasciale.
The opinion of the court was delivered by FASCIALE, J.S.C. (temporarily assigned).
We review an interlocutory order denying defendant's motion to suppress a handgun seized from his residence. The primary question presented is whether the community caretaker exception enunciated in Cady v. Dombrowski*fn1 applies to a warrantless search in the home. Defendant contends that the motion judge erred by applying the exception, and urges us to follow the rationale expressed in Ray v. Township of Warren,*fn2 which held that the exception does not extend to searches of homes. We decline to follow Ray and continue to apply New Jersey precedent which permits the exception in the home context on a case-by-case, fact-sensitive basis. We reverse, however, because no exigencies existed for the warrantless entry into defendant's home and the State has not demonstrated that the search was performed for the legitimate purpose of fulfilling a community caretaker responsibility.
On May 9, 2009, at approximately 9:43 p.m., Officer James Sztukowski received a call concerning an alleged aggravated assault involving a gun. He responded to the call and located the alleged victim a couple of blocks from the scene of the assault. The officer learned from the victim that she had worked in defendant's single-family home as a nurse and cared for defendant's very sick bedridden mother. She was unable to assist his mother from a bed on the first floor to the bathroom and yelled up to defendant on the third floor for assistance.
Defendant did not respond, the victim walked upstairs to the door leading to the third floor, opened it, and observed defendant point a gun at her. The victim then ran out of the house and called the police. Officer Sztukowski remained with the victim, he testified that eight other officers responded to defendant's house, and he radioed to those officers what the victim told him.
Officer Anthony D'Onofrio was dispatched to the home. When he arrived, Officer D'Onofrio observed defendant through a third-floor window and requested that defendant exit the home. Defendant exited, raised his hands above his head, and stated there was a gun upstairs. Officer D'Onofrio arrested defendant, handcuffed him, and read to him his Miranda*fn3 warnings. Defendant's bedridden mother remained in the house on the first floor. No one else occupied the home.
At this point, defendant was in custody, his mother occupied a bed on the first floor, approximately eight police cars and officers surrounded the house, and the victim was safe with Officer Sztukowski two blocks away. Officer D'Onofrio then entered defendant's house for the sole purpose of retrieving the gun on the third floor without obtaining a search warrant or consent from defendant or his mother. Officer D'Onofrio admitted that when he entered the house there was no emergency because the victim was safe.
Defendant was indicted and charged with third-degree aggravated assault, N.J.S.A. 2C:12-1b(4), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The judge conducted the suppression hearing on August 11, 2010, listened to the testimony from Officers Sztukowski and D'Onofrio, and found both witnesses credible.*fn4 The State contended that the warrantless search was justified under the community caretaker and exigent circumstances exceptions to the warrant requirement. Defendant argued that the police entered the house to retrieve the gun, there was no exigency, and that no exception to the warrant requirement applied.
At the end of the hearing, the judge rendered an oral opinion and found that the State failed to demonstrate exigent circumstances justifying a warrantless entry into the home. He stated that "[there were] plenty of police officers there to secure the premises, to secure the mother, to make necessary telephone calls to secure [a] warrant." The judge then stated:
[I]s there [an] emergency aid exception, a community caretaking exception, because of the nature of the object sought by the police to be taken and removed? The answer is yes. . . . [U]nder [State v.] Frankel, 179 N.J. 586 [, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)] there is a nexus between the search and the emergency that has satisfied the facts that are placed forth on this record.
While I'm denying your motion to suppress[,] this is in the [c]court's mind a very close call and I invite you on disposition, encourage you on disposition[,] to ...