March 12, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEROME MERCER, A/K/A LAMONT MERCER, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 UNCONSTITUTIONAL.
A. THE POLICE DID NOT HAVE PROBABLE CAUSE TO ENTER MERCER'S HOME.
B. THERE WERE NO EXIGENT CIRCUMSTANCES TO JUSTIFY THE POLICE OFFICERS' WARRANTLESS ENTRY INTO MERCER'S HOME.
C. ANY EXIGENT CIRCUMSTANCES WERE CREATED BY THE POLICE AND DO NOT JUSTIFY THE WARRANTLESS ENTRY INTO MERCER'S HOME.
THE PHYSICAL EVIDENCE SEIZED FROM MERCER'S HOME, AND MERCER'S STATEMENT SHOULD HAVE BEEN EXCLUDED BECAUSE THEY WERE ALL FRUITS OF THE ILLEGAL ENTRY AND SEARCH OF MERCER'S HOME.
MERCER'S STATEMENT WAS UNCONSTITUTIONALLY OBTAINED THROUGH COERCION AND IN VIOLATION OF MIRANDA.
THE COURT BELOW ABUSED ITS DISCRETION BY SENTENCING MERCER TO AN EXCESSIVE TERM WITHOUT REQUIRED CONSIDERATION OF MITIGATING FACTORS.
In reviewing a motion to suppress evidence, an appellate court must defer to the trial court's findings of fact and "feel" of the case and may not substitute its own conclusions regarding the evidence, even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)); accord State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007). In particular, the appellate court must defer to the credibility determinations of the trial court. Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966).
For purposes of our review, we accept the trial court's findings of fact, but we need not defer to its legal conclusions reached from the established facts. State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid. The trial court's application of the law is subject to plenary review on appeal.
In his written opinion on defendant's Fourth Amendment motion, Judge Ryan found that Detective Lima testified candidly and credibly that he pushed open the front door of the rooming house after defendant fled inside, and the two detectives chased him up the stairs. They kicked open his bedroom door immediately upon seeing him flee into that room and hearing what sounded like a dresser drawer being closed.
Defendant contends the detectives violated the Fourth Amendment of the federal Constitution and article 1, paragraph 7 of the New Jersey Constitution because the State proved neither probable cause nor exigent circumstances to justify their warrantless entries. He contends the passage of time from the shooting incident until the police intrusion into his home the next day contradicts any justification based on "hot pursuit" of a suspect involved in a violent crime.
"[P]hysical entry of the home is the chief evil against which . . . the Fourth Amendment is directed." State v. Hutchins, 116 N.J. 457, 462-63 (1989) (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)). "Historically, the Court has applied a more stringent standard of the Fourth Amendment to searches of a residential dwelling." State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Consequently, "searches and seizures inside a home without a warrant are presumptively unreasonable." Hutchins, supra, 116 N.J. at 462-63 (quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980)). They are "prohibited by the Fourth Amendment absent probable cause and exigent circumstances." Ibid. (quoting Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 743 (1984)).
Defendant argues there was no probable cause to arrest him because the police were acting on an uncorroborated tip and because a suspect's flight from the police does not support a finding of probable cause. Judge Ryan concluded that probable cause to arrest defendant "ripened" based on three facts: (1) the detectives identified a man matching precisely the description of the shooter, (2) the man was found at the address where the shooter was said to reside, and (3) the man fled when approached by law enforcement officers. We agree with Judge Ryan's conclusion.
Probable cause to arrest a suspect exists when, under the totality of circumstances, an objectively reasonable police officer would have a well-grounded suspicion that a crime was committed by that person. State v. Basil, 202 N.J. 570, 585 (2010). Probable cause is a "'practical, non-technical conception'" addressing "'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Ibid. (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983)). The State must make "a clear showing of probable cause" if it seeks to justify a warrantless entry of a residence because of exigent circumstances. State v. Lewis, 116 N.J. 477, 486 (1989); see Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970).
Defendant cites State v. Smith, 155 N.J. 83, 93-94, 100, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998), and argues that Majette's information could not support probable cause to arrest him because the police did not corroborate Majette's veracity or the basis of his knowledge.
In fact, Majette had no direct knowledge of the shooting but was relaying hearsay information from Odom about the identity of the shooter, and the police had no information about Odom's veracity or source of knowledge.
The New Jersey Supreme Court, however, has found that information from an identifiable citizen informant is given greater credibility than information from an anonymous tipster or from a confidential informant seeking favor from the police. Basil, supra, 202 N.J. at 586; State v. Amelio, 197 N.J. 207, 212-13 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009); Wildoner v. Borough of Ramsey, 162 N.J. 375, 390-91 (2000). "[A]n objectively reasonable police officer may assume that an ordinary citizen reporting a crime, which the citizen purports to have observed, is providing reliable information," especially when that tip is made in-person and the officer can assess the credibility of the citizen. Basil, supra, 202 N.J. at 586; see State v. Stovall, 170 N.J. 346, 362 (2002) ("When an informant is an ordinary citizen, New Jersey courts assume that the informant has sufficient veracity and require no further demonstration of reliability").
The fact that Majette did not personally observe the shooting was a relevant but not a disqualifying factor in assessing probable cause based on his information. State v. Lakomy, 126 N.J. Super. 430, 437 (App. Div. 1974). Hearsay may supply the information establishing probable cause, provided it is trustworthy. State v. Sullivan, 169 N.J. 204, 213-14 (2001); State v. DiRienzo, 53 N.J. 360, 385 (1969). Majette relayed information from Odom, who not only had personally observed the shooting but was in fact its target.
In Lakomy, supra, 126 N.J. Super. at 432, which our Supreme Court discussed with approval in Amelio, supra, 197 N.J. at 213, the police received a tip that a man was in possession of a gun at his workplace from a citizen who had not personally observed the crime but was relaying information from another unidentified citizen tipster. Yet, we found that the tip was sufficiently reliable for the police to conduct a patdown search of the man. Lakomy, supra, 126 N.J. Super. at 434. The tip came from persons who appeared to have no motive to lie but were reporting a crime to avoid risk of injury or harm. Id. at 435-37. Similarly, the tip in this case came from persons with a strong interest in avoiding further injury and harm.
The relevant inquiry in assessing the credibility of Majette's tip is whether it revealed the source of his information and whether that source itself was reliable. See State v. Keyes, 184 N.J. 541, 555 (2005). In that regard, the court must decide whether the tip reveals "expressly or clearly" how the informant became aware of the alleged criminal activity. . . . [and whether] "the nature and details revealed in the tip . .. imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source." . . . [T]he information will be deemed to have come from a trustworthy source if the informant provides "sufficient detail in the tip or recount[s] information that could not otherwise be attributed to circulating rumors or easily gleaned by a casual observer." [Id. at 555-56 (quoting Smith, supra, 155 N.J. at 94-95).]
Here, Majette gave the source of his information, his girlfriend Odom, who was then in a hospital with the victim of the shooting and had herself been the target of the gunfire. Majette provided a detailed physical description of the shooter based on his personal knowledge. He provided information about the threat with a gun made earlier that day against him by a neighbor that both he and Odom knew as "Black." Lima had corroboration regarding the veracity of Majette's information because a shooting had in fact occurred and the existing police reports from uniformed officers were consistent with Majette's information.
We reject defendant's argument that Majette should have been viewed as untrustworthy because of the prior incident with defendant and a "grudge" that Majette may have held against him. Cf. Amelio, supra, 197 N.J. at 210 (credible tip provided by the defendant's daughter after a verbal domestic dispute with the defendant). Majette himself revealed the information about the prior incident, and it further corroborated the identification of "Black" as the shooter later that night.
Lima further corroborated Majette's information when the person he saw standing on the steps at the address provided by Majette fit precisely the detailed physical description he had received. The monitoring bracelet on defendant's ankle solidified the identification. At that point, in accordance with Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968), Lima had "objectively reasonable and articulable suspicion" that defendant had committed a crime so that he could lawfully detain and question him about the shooting, State v. Dickey, 152 N.J. 468, 477 (1998). See United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604, 612 (1985); Elders, supra, 192 N.J. at 247; State v. Nishina, 175 N.J. 502, 510-11 (2003).
When defendant reacted to the detectives' approach by immediately running into his house, reasonable suspicion grew into probable cause to arrest him for the shooting. See Basil, supra, 202 N.J. at 585 ("probable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts" (quoting Gates, supra, 462 U.S. at 232, 103 S. Ct. at 2329, 76 L. Ed. 2d at 544)).
Defendant cites State v. Dangerfield, 171 N.J. 446, 457-58 (2002), and argues that his flight cannot support a finding of probable cause. It is true that, under our State constitutional protections, flight alone does not provide reasonable suspicion or probable cause to detain a person. State v. Tucker, 136 N.J. 158, 169 (1994). But when flight is coupled with other evidence of criminal activity, it can be a relevant factor in the totality of circumstances justifying a suspect's detention or arrest. Id. at 167-69; State in the Interest of J.B., 284 N.J. Super. 513, 518 (App. Div. 1995); see also State v. Morrison, 322 N.J. Super. 147, 153-55 (App. Div. 1999) (listing cases where flight plus other evidence justified police pursuing and detaining a suspect).
Unlike Dangerfield, supra, 171 N.J. at 457-58, where the defendant was chased and detained solely because of his flight, the detectives in this case had substantial prior information identifying defendant as the person who had shot Cherry the previous night. Defendant's flight from the police provided significant additional information to expand reasonable suspicion of his involvement in the shooting into probable cause to arrest him for the crime. See State v. Doss, 254 N.J. Super. 122, 129-30 (App. Div.), certif. denied, 130 N.J. 17 (1992). Based on the totality of information the police had at the time they entered defendant's home - the detailed information from Majette, police corroboration of defendant's physical description and location, and his flight when he saw the police approach - there was "a 'well-grounded' suspicion" that defendant had committed the shooting the previous night. State v. Johnson, 171 N.J. 192, 214 (2002) (quoting Sullivan, supra, 169 N.J. at 211).
We conclude that Judge Ryan correctly determined that the police had probable cause to arrest defendant based on the totality of circumstances known to them immediately after he fled into his house.
Although there was probable cause to arrest defendant, the police could not lawfully enter his residence without either an arrest or a search warrant or, alternatively, demonstration of a recognized exception to the warrant requirement of the Fourth Amendment and our State Constitution. Kirk v. Louisiana, 536 U.S. 635, 637-38, 122 S. Ct. 2458, 2459, 153 L. Ed. 2d 599, 602 (2002); Payton v. New York, 445 U.S. 573, 588-90, 100 S. Ct. 1371, 1381-82, 63 L. Ed. 2d 639, 651-53 (1980); State v. Bolte, 115 N.J. 579, 585-86, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989).
The State argues an exception existed because the police were in "hot pursuit" of an escaping dangerous suspect. Defendant disputes that the police were in "hot pursuit" because they had not continuously pursued him from the scene of the shooting, and he further argues there was no exigency because there was no evidence that he was armed that morning. Judge Ryan found exigent circumstances because the underlying crime involved a very recent shooting, the officers reasonably believed the suspect may be armed, and the suspect's escape was a serious risk if the officers did not immediately apprehend and disarm him. We agree with the judge's conclusion.
Courts have found exigent circumstances justifying warrantless entry when police are in pursuit of a dangerous suspect because delay to obtain a warrant endangers the lives of officers and bystanders. Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L .Ed. 2d 782 (1967); Hutchins, supra, 116 N.J. at 464. The nature of the offense that the police are investigating is very important in justifying warrantless entry of a home in "hot pursuit." See Welsh, supra, 466 U.S. at 749-50, 104 S. Ct. at 2097-98, 80 L. Ed. 2d at 743 (no exigent circumstances for hot pursuit for traffic offense); Bolte, supra, 115 N.J. at 596-97 (adopting Welsh's rationale in case involving driving while intoxicated).
"Hot pursuit," as the term connotes, requires a close temporal link between a serious criminal event and the police chase that results in a warrantless entry. See Welsh, supra, 466 U.S. at 753, 104 S.Ct. at 2099, 80 L. Ed. 2d at 745 ("[T]he claim of hot pursuit is unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of a crime."); State v. Jefferson, 413 N.J. Super. 344, 356-57 (App. Div. 2010) ("hot pursuit" involves the belief that "suspect just has committed a serious crime"); State v. Laboo, 396 N.J. Super. 97, 103 (App. Div. 2007) (describing "hot pursuit" as "immediate or continuous").
For instance, in Warden, supra, 387 U.S. at 297-98, 87 S. Ct. 1645, 18 L. Ed. 2d 786-87, police received information from witnesses that a suspect in an armed robbery had fled to a specific address. Within minutes, the police arrived and searched the residence finding the defendant and his weapons. Ibid. In upholding the warrantless search and seizure, the United States Supreme Court emphasized the short time between the suspect's flight into the residence and the officers' arrival at the scene. Id. at 298, 87 S. Ct. at 1646, 18 L. Ed. 2d at 787. Likewise, in State v. Davis, 204 N.J. Super. 181, 184 (App. Div. 1985), certif. denied, 104 N.J. 378 (1986), the "hot pursuit" exception applied where the victim told officers the suspect in an armed robbery was at a specific address and the officers "within minutes took up the pursuit."
In this case, the detectives were not in "hot pursuit" of the shooting suspect. They went to the area of the shooting to canvass for information some twelve hours after the shooting. The "hot pursuit" exception cannot justify the warrantless entry of defendant's home and bedroom. Nevertheless, we agree with Judge Ryan that sufficient exigent circumstances existed after defendant fled into his home.
Determining whether exigent circumstances permitted the police to dispense with a warrant "demands a fact-sensitive, objective analysis" under the totality of the circumstances. Nishina, supra, 175 N.J. at 516-17 (quoting State v. Deluca, 168 N.J. 626, 632 (2001)). The exception for exigent circumstances does not have "neatly defined contours." State v. Cassidy, 179 N.J. 150, 160 (2004); see State v. Cooke, 163 N.J. 657, 676 (2000) ("the term 'exigent circumstances' is, by design, inexact"). A hallmark of exigency is spontaneous and unforeseeable circumstances. Nishina, supra, 175 N.J. at 516-517; Cooke, supra, 163 N.J. at 668.
Here, the information that the police knew reliably identified defendant as an armed felon who had shot a man just hours earlier on the street in the same neighborhood. Majette had disclosed that the person he knew as "Black" had displayed a handgun during the previous day when he threatened Majette and that he wore an electronic ankle bracelet such as used by persons on parole. The detectives reasonably believed defendant was still armed. Defendant could have been concealing a handgun while standing on the steps, or he could have gained access to a weapon inside the house where he fled. Reasonably suspecting defendant of having committed a street shooting in a residential neighborhood and having struck a person other than his target, the police had substantial reason to fear that either they or bystanders could be injured or killed if defendant was not quickly apprehended.
Defendant contends the detectives knew he was wearing an electronic monitoring bracelet and so he was not likely to escape. He argues the police should have surrounded the house to prevent his escape and applied for a warrant. Escape, however, does not mean only successful flight from the area. Defendant had already fled from the police into his house, and he was either armed or could retrieve a weapon from inside his house. See Davis, supra, 204 N.J. Super. at 184. His immediate escape from questioning and apprehension was already in progress when the detectives chased him into his house. The ability of authorities to track defendant by means of the ankle bracelet would not prevent him from arming himself and threatening the safety of others.
We also reject defendant's argument that the police created the exigency and thus could not rely upon it as justification for warrantless entry. See Hutchins, supra, 116 N.J. at 468-73. The New Jersey Supreme Court has distinguished between deliberate police conduct designed to subvert the warrant requirement by creating an exigency and appropriate police investigation that naturally results in exigent circumstances. Id. at 470. An important consideration is whether the exigency arose in a fluid, ongoing investigation that precluded an earlier attempt to obtain a warrant. Id. at 470-71. Here, the detectives went to the scene of the crime to pursue their investigation and unexpectedly encountered defendant. They did not know he would be standing on the steps at the address provided by Majette, that he would be readily identifiable, and that he would immediately flee upon their approach. The evidence does not support defendant's contention that the detectives deliberately manufactured the encounter.
Having reached the conclusion that the evidence established exigent circumstances for the warrantless entry, we add a cautionary comment that a suspect's flight into his home does not routinely provide exigent circumstances for warrantless entry in the investigation of all crimes and at any time. The exigency in this case was to prevent the escape of a dangerous suspect and potential harm to police and the public within several hours after a shooting. See Lewis, supra, 116 N.J. at 480; Laboo, supra, 396 N.J. Super. at 107-108. Many police investigations do not involve crimes of recent violence or risk of imminent harm to officers or others. In other types of police investigations, such as pursuit of illegal drugs, pertinent factors in assessing whether an exigency existed for warrantless entry include: (1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge [of] efforts to dispose of [contraband] . . . ; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause, and (9) the time of the entry.
[State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990).]
In Welsh, supra, 466 U.S. at 750, 104 S. Ct. at 2098, 80 L. Ed. 2d at 743, the United States Supreme Court said: "Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries."
The recent shooting and precise reliable identification of defendant, together with his immediate flight from the police, justified the warrantless entry in this case. Without similar justification involving a serious crime that places the safety of the police and public at risk, the exigent circumstances exception would not have permitted the police to enter the home and arrest defendant without a warrant.
Defendant contends his confession was coerced in violation of the Fifth Amendment of the United States Constitution and New Jersey's common law privilege against self-incrimination. See State v. Diaz-Bridges, ___ N.J. ___, ___ (2007) (slip op. at 24-25). Specifically, he argues that his waiver of Miranda rights was involuntary because it was only provided after Lima threatened to charge his girlfriend and turn custody of her child over to DYFS. Judge Hutchins-Henderson found that the State proved beyond a reasonable doubt that defendant's waiver of his Fifth Amendment rights was knowing, intelligent, and voluntary because any pressure the detective applied did not overbear his will.
The privilege against self-incrimination is one of the most important protections of criminal law. State v. Presha, 163 N.J. 304, 312 (2000). Accordingly, in our State courts, "for a confession to be admissible as evidence, prosecutors must prove beyond a reasonable doubt that the suspect's waiver [of his privilege against self-incrimination] was knowing, intelligent, and voluntary in light of all the circumstances." Id. at 313 (citing State v. Burris, 145 N.J. 509, 534 (1996)).
At the root of the inquiry is whether a suspect's will has been overborne by police conduct. In determining whether a suspect's confession is the product of free will, courts traditionally assess the totality of circumstances surrounding the arrest and interrogation, including such factors as "the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." Additionally, "[a] suspect's previous encounters with the law has [sic] been mentioned as [a] relevant factor." [Presha, supra, 163 N.J. at 313 (quoting State v. Miller, 76 N.J. 392, 402 (1978)).]
Applying this standard, Judge Hutchins-Henderson appropriately concluded from the evidence that defendant's will was not overborne by the discussion about his girlfriend and her child. She noted the following relevant factors: defendant was thirty-three years old, he appeared to be intelligent, he was aware of his Miranda rights before he made his statement, he had previous encounters with law enforcement, and he was in the police station for only about an hour and was treated noncoercively at the time he waived his rights and agreed to make a taped statement. The judge listened to the recording of defendant's waiver and was persuaded that it was a knowing and voluntary decision on his part to aid his girlfriend by giving a truthful statement about his involvement in the shooting.
Defendant relies on State v. Patton, 362 N.J. Super. 16 (App. Div.), certif. denied, 178 N.J. 35 (2003), to argue that his confession was extracted through an impermissible interrogation tactic. In Patton, we concluded that a defendant's due process rights were violated when he was tricked into confessing to a murder after he listened to a police-fabricated audiotape depicting a fictitious eyewitness. Id. at 18, 46. We held that, although the police may misrepresent facts and the existence of evidence during interrogation, they may not fabricate tangible evidence to deceive a detainee into confessing. Id. at 32.
Patton's holding is not implicated by these facts. Here, the police did not fabricate any tangible evidence to trick defendant into confessing. In fact, Lima only conveyed accurate information. Defendant's girlfriend was subject to charges for possession of the handgun and illegal drugs in the bedroom she shared with defendant. Also, Odom's information had implicated the girlfriend in the events leading to the shooting the previous night. Even if the police had no actual intention of charging her with involvement in the shooting, the use of deception, trickery, and psychological pressure by the police is not inherently unconstitutional when they seek to get a confession. See, e.g., Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 585, 93 L. Ed. 2d 587 (1986); Patton, supra, 362 N.J. Super. at 29-32 (surveying cases describing acceptable interrogation techniques). Here, the psychological pressure applied to defendant was no worse than that found constitutional by our Supreme Court in State v. Miller, supra, 76 N.J. at 404, and by the United States Court of Appeals in Miller v. Fenton, supra, 796 F.2d at 606-13.
Additionally, we find no merit in defendant's contention that State v. O'Neill, 193 N.J. 148 (2007), requires suppression of his statement. Unlike that case, defendant was not interrogated before being advised of his Miranda rights. Police questioning and defendant's confession followed the advice and waiver of his rights.
Like the defendant in Miller, supra, 76 N.J. at 404, the pressure brought upon defendant in this case "did not contribute to an 'overbearing of his will.'" He was fully aware of his rights and voluntarily chose to confess. Judge Hutchins-Henderson relied on credible evidence in the record to conclude that defendant's confession was not obtained in violation of his constitutional rights.
We find insufficient merit to address in a written opinion defendant's contention that his twelve-year sentence was excessive and that the trial court erroneously failed to find relevant mitigating factors. R. 2:11-3(e)(2). The sentence was less than the maximum recommended in the plea agreement, it was within the discretionary authority of the trial court, State v. Roth, 95 N.J. 334, 364-65 (1984), and the judge fairly assessed and determined appropriate aggravating factors and the absence of any mitigating factors, State v. Bieniek, 200 N.J. 601, 608-09 (2010).