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State of New Jersey v. Olinesser Vera

November 7, 2011

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
OLINESSER VERA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-07-1288.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 13, 2011

Before Judges Sapp-Peterson and Ostrer.

On leave granted, the State appeals from an order suppressing evidence, including two loaded handguns and assorted ammunition, which police seized after they entered an apartment without a warrant. As the parties did not dispute the facts presented in the police report submitted to the trial court, the court did not conduct an evidentiary hearing. See R. 3:5-7(c). After reviewing those same facts in light of the applicable principles of law, we reverse, concluding that the warrantless entry was justified by exigent circumstances, and its subsequent seizure of evidence was justified by plain view and abandonment principles.

I.

According to the investigative report of West New York Police Detective Jose Arroyo, shortly before 11:00 p.m. on March 1, 2010, police received multiple calls that shots had been fired in the area of 65th Street and Park Avenue. The same general location was involved in a previous incident involving reported shots fired, ammunition casings recovered, but no arrests made. Arroyo and his partner, Detective J. Perez, responded to the area. Other units did as well. Along with Arroyo and Perez, five other officers canvassed the area including Sergeant Cocciadiferro and Officers Jesus Vargas, Munoz, Ycaza and Henriquez.

While Arroyo was on the scene near 65th Street and Park Avenue, headquarters personnel advised him that an anonymous person had reported that a fight, presumably involving the shots fired, had occurred across the street from Arroyo's location and ended when the actors ran into the yellow brick house closest to a supermarket. While headquarters personnel kept the caller on the line, Arroyo and Perez approached the described house, which was 108 65th Street. Arroyo reported that as he initially arrived on the scene, he observed a young female walk up the stairs to the same building.

Arroyo, Perez and Henriquez met the occupant of the ground floor unit of Number 108, who allowed the officers to check the rear yard accessible from his apartment. The officers found no evidence or persons connected with the shooting.

Upon returning to the front of 108 65th Street, Henriquez and Ycaza noticed four spent handgun shell casings on the sidewalk in front of the building. Ycaza was posted to guard the scene.

Arroyo and Perez then proceeded up the stairs of Number 108, as had the female whom Arroyo observed earlier. Arroyo and Perez knocked on the door of Apartment Number 2 at the top of the stairway. They encountered a male resident who, they determined, was uninvolved in the incident.

Directly across from Apartment Number 2 was Apartment Number 1. Arroyo knocked on the door, but no one responded. So, he and Perez went upstairs to the next floor, where they met the male occupants of Apartment Number 4. The detectives confirmed that those men were uninvolved in the incident.

Consequently, Arroyo and Perez directed their attention again to Apartment Number 1 and resumed knocking on the door. From both the bottom of the door and the peephole, it appeared the apartment was dark. After several minutes of unproductive knocking, the detectives returned downstairs.

While in the vestibule, Perez noticed four separately marked locking mailboxes. Each one was numbered to match one of the four apartments. Perez pointed to the mailbox marked number

1. It was completely open, a set of keys were still attached to the lock, and inside was a small yellow plastic baggy, which enclosed two smaller wrapped baggies, which in turn ...


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