On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FJ-15-490-09S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 2, 2011
Before Judges R. B. Coleman and J. N. Harris.
Defendant M.H., a juvenile, appeals from the denial of his motion to suppress evidence incident to the execution of a search warrant at his home. The motion judge found that exigent circumstances warranted entry into the home without knocking and announcing. Because we are satisfied that such a finding is supported by substantial credible evidence, we affirm.
During August 2008, controlled purchases of heroin were made by a confidential informant under the direction of the Little Egg Harbor Police Department (LEHPD) from an apartment in the Royal Timbers apartment complex occupied by M.H., his parents and siblings. On September 3, 2008, Detective Christopher Costa filed an affidavit in support of a search warrant for the apartment and any persons arriving at, departing from and located at the apartment who were reasonably believed to be associated with the investigation. Judge Damian Murray issued a search warrant, which authorized execution between the hours of 6:00 p.m. and 6:00 a.m. within ten days of September 3, 2008. The application did not seek authority to enter the dwelling without knocking, and the warrant did not include such authorization.
Detective Costa conducted a briefing with LEHPD police officers and Emergency Service Unit (ESU) members in preparation for the execution of the warrant. The officers arrived at the apartment complex between 8:20 p.m. and 8:35 p.m. For approximately forty-five to sixty-minutes, Detective Costa and Detective Joel Mahr conducted surveillance of the apartment from the woods behind the complex. They observed at least four individuals near the door of the target apartment in the breezeway.*fn1 The detectives witnessed a male, J.C., pacing back and forth throughout the time of the surveillance. They assumed he was a lookout.
The detectives also observed F.H. and E.S. leave the apartment, walk to the back of the apartment building, engage in what they believed was a hand-to-hand drug transaction, after which F.H. and E.S. returned to the apartment. Based on his observations, Detective Mahr stated he "knew there were drugs in that building" and it was time to execute the search warrant. Detective Costa directed the team to execute the search warrant.
Throughout the surveillance, Detectives Costa and Mahr maintained communication with Sergeant Thomas J. Thornton, who commanded the members of the ESU positioned in a wooded area twenty to thirty yards from where the detectives were stationed. Detective Mahr, Detective Costa and Sergeant Thornton testified at the hearing on the motion to suppress that as the officers approached the apartment, there was a commotion and it became "chaotic." There was yelling of "5-0" and "police" by the numerous individuals outside of the apartment. Sergeant Thornton testified that he believed the yelling was alerting the individuals inside the apartment of the police presence so that the individuals could destroy evidence or harm the officers executing the warrant. This prompted Sergeant Thornton to call a "compromise," which is called when there is a safety issue regarding the execution of a search warrant. After the compromise was called, the team abandoned their intention to knock-and-announce their presence before entering the apartment and conducting their search.
As a result of the search, the officers found marijuana, heroin, a brass knuckle, an oriental throwing star, and a paintball gun. Several individuals, including defendant M.H., were found inside the apartment, and five were arrested. A complaint was filed in Ocean County, Chancery Division, Family Part, Docket No. FJ-15-490-09S, charging defendant M.H. with possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count one); possession of controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count two); possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(11) (count three); possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count four); and conspiracy to commit the aforementioned offenses with another, N.J.S.A. 2C:5-2 (count five).
On October 24, 2008, defendant filed a motion to suppress evidence, which was denied after a hearing conducted on December 3 and December 23, 2008. Thereafter, defendant pled guilty to fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3). In accordance with the plea agreement, defendant was sentenced to sixty days in the Ocean County Detention Center and a fifteen-month period of probation. Defendant also was sentenced to fifty hours of community service, mandatory enrollment in an education program and was assessed two $30 VCCB fees, among other fees. The remaining charges in the complaint against defendant were dismissed. On June 11, 2009, defendant filed his notice of appeal in this matter.
Defendant raised the following arguments for our consideration on the appeal:
POINT I: THE MOTION JUDGE ERRED IN DENYING M.H.'S MOTION TO ...