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State of New Jersey v. Cesar Albert Vargas and Carmelo Martinez

September 28, 2011

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
CESAR ALBERT VARGAS AND CARMELO MARTINEZ, DEFENDANTS-RESPONDENTS.



On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-06-00118-S.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 8, 2011

Before Judges Yannotti and Espinosa.

We granted the State leave to appeal from an order suppressing evidence that was seized from defendant's apartment in a warrantless search and now reverse.

The testimony at the suppression hearing can be summarized as follows:

Defendant lived in an upstairs apartment in Vineland in a building owned by Henry Olaya. According to Olaya, defendant was a good tenant who paid his rent on time, "was quiet, kept to himself, [and] kept the place clean." On March 2, 2008, Olaya placed a notice in each of his tenants' mailboxes, including that of defendant, to inform them that he would be entering their premises "for the purpose of allowing a[n] appraisal to evaluate the property." On March 5, 2010, Olaya entered the apartment with the appraiser. Defendant was not home at the time.

The rent was due on the first of every month and was late after the fifth day of the month. When defendant had not paid his rent by March 5, 2008, Olaya made several attempts to contact him by phone and in person, all of which were unsuccessful.

Approximately two weeks later, on March 17, 2008, Olaya went to the building with his girlfriend to do some "spring cleaning." He again attempted to contact defendant by phone and by knocking on the door of his apartment, but received no answer. Olaya spoke with some of the other tenants in the building who said they had not seen or heard defendant coming in or out of the building for a couple of weeks and that his car had not been moved for "several days or a week or so[.]" There was a bag of trash left outside defendant's apartment on the front porch. His car was covered in pollen, and the back tires had deflated. Defendant's mailbox was filled with mail, including the letter Olaya had dropped off on March 2.

Concerned for defendant's well-being, Olaya called the police. Three police officers from the Vineland Police Department, including Sergeant Louis Carini and Patrolman John Calio, arrived in response to Olaya's call to 911. Olaya told the officers about his concern, stating he had not heard from defendant for over two weeks and that it was unusual for his calls to defendant to go unanswered. He informed the officers that the other tenants in the building had not seen defendant and that a letter he had placed in defendant's mailbox on March 2 had not been retrieved. Olaya also told the officers he did not have any contact information for defendant.

Calio testified about his observations at the scene, which were consistent with what Olaya had told them. Defendant's car had a flat tire, was dirty, and "looked like it hadn't been moved in several weeks." The mailbox was also full and "looked like [the mail] hadn't been taken out in several weeks." Calio said the officers did not speak to any of the other tenants in the building because no tenants were home at that time of day.

The officers contacted the Vineland police dispatcher and asked whether there had been any service calls from defendant's apartment in the prior weeks. Calio testified that "service calls" include calls for an ambulance, for help, and whether the resident had been arrested. Carini testified that the police dispatcher checked patient lists to determine if defendant was hospitalized.

The officers knocked on the door to defendant's apartment and identified themselves as Vineland police officers. There was no response. The officers looked through the windows of defendant's apartment. They could not see much through the windows and could not determine if defendant was inside. Carini testified that under the circumstances - Olaya not having any contact information for defendant, the mail piling up, the vehicle not being moved from the driveway, no one having seen or heard from defendant, no response at the door, and seeing no one in the window - the "protocol" under such circumstances was to "go inside somebody's house to find out if they're injured, possibly deceased."

Olaya used his keys to open the back door and entered the apartment with the officers. The officers called out for defendant and identified themselves. They searched the rooms for signs of defendant but did not open any drawers or containers. They did open closets because of the possibility that a person could be inside. In the living room, the officers observed a glass jar about six to eight inches high with green ...


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