On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2693.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
Following his unsuccessful motion to suppress evidence, which was seized during a warrantless search of his residence, defendant pled guilty to two counts of third-degree possession of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:35-5a(1), and one count of third-degree CDS possession with the intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1. Defendant was sentenced to three concurrent and extended six-year prison terms, subject to three-year periods of parole ineligibility.
Defendant appealed, arguing:
I. THE TRIAL JUDGE ERRED IN FAILING TO GRANT THE DEFENDANT'S MOTION TO SUPPRESS UNDER THE CONTROLLING CASES OF STATE v. BOLTE [115 N.J. 579, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989),] AND ITS PROGENY.
II. THE TRIAL JUDGE ERRED IN FAILING TO CONSIDER A LESSER SENTENCE AND IN GRANTING MULTIPLE EXTENDED TERMS (Not Raised Below).
In light of our disposition of Point I, we need not reach PointII.
With regard to the denial of defendant's suppression motion, the record reveals that the judge conducted an evidentiary hearing at which only a police officer testified. The officer testified that a tip was received from a confidential informant, who had provided reliable information at least ten times in the past. The informant advised that a black male was selling heroin, cocaine, and marijuana from a specified apartment on Riverview Court in Newark. The judge described what occurred after police officers arrived at that location:
Officer Rios knocked on the apartment door. The door was opened by a black male, later identified as [defendant]. He was wearing blue jeans, a white tee shirt and was smoking a marijuana cigarette. Officer Rivera began to approach the door with his badge visibly displayed around his neck. After seeing Officer Rivera's badge, [defendant] tossed the marijuana cigarette inside the apartment and attempted to close the door and run into the apartment. Officer Rios, however, kept the door from closing and apprehended [defendant] inside of the apartment. Officer Rivera then retrieved the marijuana cigarette from the living room floor and placed [defendant] under arrest.
Once inside, the officers observed materials that appeared to be cocaine and other contraband.
Defendant does not dispute these facts -- or, at least, recognizes that our standard of review requires that we defer to these findings, see, e.g., State v. Elders, 192 N.J. 224, 244 (2007) -- but instead argues that, as a matter of law, the circumstances did not provide a sufficient basis for the officers' entry into his residence. We agree.
The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972). A warrantless search of a person's home is "presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980). This "basic principle of Fourth Amendment law" is also "a fundamental precept" of New Jersey's constitution. State v. Henry, 133 N.J. 104, 110, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993). To justify a warrantless search of a home, the State must establish that police had probable cause and that exigent circumstances excused the need to seek a warrant. Welsh v. Wisconsin, 466 U.S. 740, 741, 104 S. Ct. 2091, 2093, 80 L. Ed. 2d 732, 738 (1984); see ...