On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-02684.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 28, 2011 -
Before Judges Sabatino and Ashrafi.
This appeal presents a close question of Fourth Amendment protections and whether police officers are permitted to intrude into a suspect's home when investigating a serious violent crime. Newark police detectives identified defendant Jerome Mercer as the suspect who shot a man the previous night in a neighborhood dispute. They chased him into his home without a warrant, kicked in his bedroom door, and arrested him there. They found a gun and drugs in a partially open dresser drawer. Soon after his arrest, defendant confessed to the shooting, allegedly because the police threatened to charge his girlfriend and hold her in custody if he did not agree to waive his rights and make a statement.
The trial court held evidentiary hearings and denied defendant's motions to suppress the evidence seized from his bedroom and his confession. Defendant then pleaded guilty to aggravated assault and weapons charges, reserving his right to appeal the denials of his suppression motions.
We now affirm the trial court's rulings, but with a caveat that the police actions in entering the home without a warrant were constitutionally justifiable under an exigent circumstances exception only because a man had been shot the previous night and the information known by the police when they entered defendant's home and bedroom established both probable cause and a risk of further violence and injury. In the absence of both those elements, the police could not lawfully enter defendant's home to question or arrest him.
Only one witness testified at the evidentiary hearing before Judge Peter V. Ryan on defendant's motion to suppress evidence on Fourth Amendment grounds. Newark Detective Anthony Lima described the events leading to defendant's arrest, and his police report was also admitted in evidence.
On the morning of June 27, 2008, Lima reported to work and reviewed reports submitted by responding uniformed officers regarding a shooting that occurred on Seymour Avenue the night before at 11:40 p.m. A man named Paul Cherry was shot as he was attempting to drive away in his van. Cherry was being treated at a hospital that morning for bullet wounds to his shoulder and chest. He described the shooter as "a black male in white T-shirt and jeans," and he stated that the man had reached into his van with a handgun and fired a shot apparently aimed at a woman named Sandra Odom who had just jumped into the van to get away from him. Odom was also present at the hospital. Both Cherry and Odom said they could identify the shooter.
As Lima was reviewing the reports, he was notified that a man named Steven Majette had come to the neighborhood precinct with information about the shooting. Lima brought Majette to police headquarters and took a taped statement from him. Majette identified himself as Odom's boyfriend and a resident of the neighborhood. He said he was involved in an incident with a neighbor whom he knew as "Black" at about 5:00 p.m. on the day of the shooting. "Black" had pointed a gun and threatened to shoot Majette, accusing him of conduct that was not directly related to subsequent events. Majette fled to his room and called the police.
Later, near midnight, Majette received a call from Odom, who was at the hospital. Odom told him that "Black" had shot Cherry after chasing Odom with a gun because she had been in a fight in the street with "Black's" girlfriend. A short time before Odom's call, Majette had heard what sounded like firecrackers and then observed a commotion in the street. He did not personally witness the shooting outside his home.
Majette told Lima that "Black" lived a few doors away from his residence, giving the address. He described "Black" as "sort of African, small little beard, he got a tattoo of MOB on his body . . . his right arm . . . about 5'8" . . . probably about 32 [years old] . . . real short [hair]." Majette said he had seen a monitoring bracelet worn by "Black" on his ankle, such as worn by persons on parole.
With Majette's information in hand, Lima and three other detectives in plain-clothes went to the scene of the shooting to canvass the area for further information. At the address for "Black" given by Majette, Lima saw two men standing on the steps, one of whom fit precisely the description given by Majette. Lima observed that the man was wearing an electronic monitoring bracelet on his ankle. As the four detectives approached on foot, the man who fit "Black's" description ran into the house and slammed the door. Lima and a second detective pushed open the unlocked front door and chased the fleeing suspect up the stairs in the house, which Lima described as a rooming house. The suspect fled into a bedroom and slammed the door shut. As Lima got to the door, he heard a noise that sounded like the closing of a dresser drawer. The detectives immediately kicked open the bedroom door and saw the man they had been chasing, defendant Mercer, in a vestibule near a dresser. They placed him under arrest. Looking into a partially open drawer, the detectives saw a handgun and vials of suspected illegal drugs. The Crime Scene Unit later determined that the handgun was a loaded .25 caliber Beretta and the forty vials seized from the drawer contained cocaine. At the time defendant was arrested, detectives also detained the second man who was standing outside and defendant's girlfriend, whom they found in the hallway on the second floor.
Judge Ryan issued a written opinion denying defendant's motion to suppress evidence seized from his bedroom and his confession as the fruit of an unconstitutional entry of his home. The judge concluded that probable cause was demonstrated to arrest defendant and exigent circumstances justified warrantless entry of the home.
At a subsequent Fifth Amendment suppression hearing held before Judge Sherry Hutchins-Henderson, two witnesses testified, Lima and defendant. Lima testified that detectives took defendant and the other two persons to police headquarters after the arrest, arriving at about 12:45 p.m. Defendant sat alone in an all-purpose room containing vending machines for about an hour and was offered coffee, but he was not questioned during that time. At 1:45 p.m., he was read his Miranda*fn1 rights and signed a waiver form. At about 2:00 p.m., defendant completed a taped statement in which he admitted shooting Cherry but claimed he had fired the shot because Cherry and Odom had tried to drive away without paying for cocaine that they were buying from him. He said his girlfriend had come home some forty-five minutes after the shooting and had no involvement in the crimes. On cross-examination, Lima acknowledged that he had discussed with defendant the prospect that his girlfriend's three-month-old baby would be turned over to the custody of the Division of Youth and Family Services (DYFS).
Defendant testified that he confessed only because Lima said his girlfriend would be charged, she would be held in custody, and her baby would be turned over to DYFS. Defendant claimed he would not have waived his rights and confessed if Lima had not promised to release his girlfriend if he made a statement and admitted the shooting.
Judge Hutchins-Henderson found that the possibility of defendant's girlfriend being charged and DYFS involvement had been discussed with defendant but that those factors did not overcome his knowing and voluntary decision to make a statement. The judge reviewed case law and concluded that the police could discuss potential charges against another person and arrangements for the care of a child without violating defendant's constitutional right not to incriminate himself.
She concluded beyond a reasonable doubt that defendant waived his Miranda rights and voluntarily confessed to the crimes.
The indictment against defendant contained eleven counts arising from the June 26, 2008 shooting and the discovery of cocaine and handgun in his bedroom the next day. After denial of his motions to suppress, defendant entered a conditional plea of guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and third-degree unlawful possession of a weapon.
N.J.S.A. 2C:39-5b. On July 24, 2009, Judge Hutchins-Henderson sentenced defendant on the aggravated assault charge to an extended term under N.J.S.A. 2C:44-3d of twelve years imprisonment, with eighty-five percent of the term to be served before parole and three additional years of special parole supervision under the No Early Release Act, N.J.S.A. 2C:43-7.2. She also sentenced defendant to a concurrent term of five years imprisonment on the weapons charge. The other counts of the indictment were dismissed pursuant to a plea agreement.
Defendant raises the following arguments on appeal:
THE WARRANTLESS ENTRY BY THE POLICE INTO MERCER'S HOME WAS ...