On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-10-03383.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 29, 2011 -
Before Judges Reisner and Simonelli.
Defendant Gregory Webb appeals from his August 20, 2010 conviction for second-degree possession of a controlled dangerous substance with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1, for which he was sentenced, as a third-degree offender, to three years probation conditioned on serving 364 days in the county jail. In the following point, defendant contends that the trial court erred in denying his motion to suppress evidence:
POINT I: THE COURT ERRED IN REFUSING TO SUPPRESS ALL OF THE EVIDENCE SEIZED AS A PRODUCT OF THE CLEARLY UNREASONABLE WARRANTLESS ENTRY AND SEARCH OF THE THIRD PARTY DWELLING.
Finding no basis to disturb the trial court's decision, which was cogently explained in Judge John T. Kelley's July 10, 2009 oral opinion, we affirm.
This was the most pertinent evidence introduced at the
suppression hearing. The State's first witness was Investigator Jerome
Scott of the Department of Corrections Fugitive Unit. He had extensive
experience in apprehending fugitives and executing arrest warrants at
residences. On April 10, 2008, he was assigned to apprehend Michael
Webb, an escapee for whom Scott had an arrest warrant.*fn1
Because Ashante Johnson was on Michael's visitors list at the
halfway house from which he had absconded, and she was also listed as
his emergency contact, Scott went to Johnson's house in Camden to look
Scott had also received information that Johnson's boyfriend, Gregory Webb, who was Michael's nephew, might be at Johnson's house. The prior year, Scott had arrested Gregory, who was a suspect in a shooting. When Scott and several back-up officers went to Johnson's house in Camden, they wore body armor and took significant precautions for their safety. On approaching the house, Scott looked in the front window and saw a black male, whom he did not recognize, walking "from the front of the residence to the rear of the residence." He alerted his team that "there was someone on the first floor." Then he knocked on the front door.
At that point, the same person whom Scott had observed walking to the rear of the house appeared at the front door and opened it. At that moment, Scott recognized the person as Michael Webb. Michael "was startled" to see the police and "resisted[,] trying to close the door." When the police forced their way in the door, Michael "tried to resist apprehension." According to Scott, the officers were finally able to take him into custody in the "front living room area" of the house.
While they were apprehending Michael, they heard "a lot of people walking around" upstairs. Scott walked over to the stairs leading to the second floor and saw Gregory Webb "looking down the stairs." He ordered Gregory to come downstairs, but Gregory instead retreated further into the second floor, and Scott heard banging and knocking noises coming from upstairs. After being repeatedly ordered to come downstairs, Gregory finally complied, at which point the officers handcuffed him and searched him for weapons. During that search, they found "about $4000" in his pocket. Gregory told Scott that Johnson was upstairs, and she came downstairs after being ordered to do so.
Scott testified that, for their safety, the police needed to order Gregory to come downstairs instead of going up after him. He described the staircase as "a fatal funnel" and explained that if the police went up the stairs "anyone from either" of the upstairs rooms "could come down and do us harm" or could attack them from one upstairs room while they were in the other room. Once Johnson came downstairs, the police also arrested her, and then "did . . . a protective sweep to make sure that there was no other persons upstairs or any place in the house." Scott testified that during the protective sweep of the first floor, the officers found a duffle bag with a scale, a heating element, and drug paraphernalia. The duffle bag "was open" and "in plain view." They also found some ammunition in the kitchen.*fn2
On cross-examination, Scott admitted that Michael had no criminal history of violence. However, he explained that escaped prisoners are "always considered armed and dangerous." Hence, the officers went to the Johnson house clothed in body armor and armed. They also believed there might be firearms in the house, because Gregory was a suspect in a shooting. He clarified that four officers entered the house to arrest Michael, while three other officers stayed outside to cover the front and rear entrances. He explained that once they subdued Michael, the officers needed to search the rest of the house to ensure there was no one else who could attack them while they were removing Michael. They knew there were other occupants but did not know if they were armed. It would not have been safe to take Michael to the ...