On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-07-0680.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2012 -
Before Judges Fuentes, Graves and Haas.
After his motion to suppress was denied, defendant Diandre Littlepage pled guilty to third-degree possession of cocaine, N.J.S.A. 2C:35-7. He was sentenced to an extended term of seven years in prison, with a three-year period of parole ineligibility. Defendant appeals the denial of his motion to suppress. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
On March 25, 2009, Trenton Police Detective Michael Schiaretti received information from a confidential informant that a man was selling drugs from an apartment located in a house on Hamilton Avenue. The informant told Schiaretti that the suspect also sold drugs on the street and that he often had a pit bull with him.
That evening, Schiaretti and Detective Sergeant Darren Zappley set up surveillance across the street from the apartment house. At 9:30 p.m., they observed a woman walk down an alleyway next to the house and then quickly re-emerge and leave the area. About ten minutes later, a man later identified as defendant came out of the alleyway and began walking down Hamilton Avenue. Defendant had a pit bull on a leash.
Defendant walked to the corner, where he stopped and waited. A man, who was never identified, approached him. After a brief conversation, the man gave defendant some cash. Defendant reached into his mouth, removed an object, and gave it to the man, who then left the area. Defendant resumed walking down the street. Schiaretti called a back-up unit and instructed the officers to stop and detain defendant.
Schiaretti and Zappley crossed the street to the apartment house. They went to a side door and thought they heard voices coming from the apartment. The officers looked through a window and, on a kitchen counter, they saw a digital scale, a piece of clear plastic that contained "suspect crack cocaine," and a coffee pot. Schiaretti knocked on the door, but received no response. He then directed the back-up unit to arrest defendant and bring him to the apartment house. Defendant was searched and no contraband was found. He was handcuffed, placed in the rear of a police car, and driven to the apartment house.
When defendant arrived, he remained in the back of the police car in handcuffs. Schiaretti orally advised defendant of his Miranda*fn1 rights. Schiaretti told defendant that the officers had seen him in "an illegal narcotics transaction" and, because they had also seen crack cocaine through his kitchen window, they would be "pursuing a search warrant for the residence." Schiaretti also asked whether there was any one in the residence. Defendant told Schiaretti that no one was in the apartment and that he had left the television on. According to Schiaretti, defendant went on to state that it wouldn't be necessary to get a search warrant, that he only had the crack that we could see in the window, and he said that there was a blunt in his house, and that he would give consent to, you know, search his apartment in order for us to retrieve those items without getting a search warrant.
Schiaretti asserted that he then "quickly told" defendant that he had the right to refuse to consent to the search, the right to stop the search at any time, and the right to be present "on the scene while it happened." Schiaretti did not provide defendant with the standard written consent to search form and he conceded that his written reports did not record that he had verbally advised defendant of any of these rights.
Schiaretti left defendant in the police car, walked to the house, tried the side door, and found that it was locked. He returned to the car and asked defendant how he could get into the residence. Schiaretti testified that defendant told him that he had keys to the front door in his pocket. Although defendant was still handcuffed behind his back, Schiaretti asserted that defendant was "able to reach to his left pocket and remove the keys and hand them over." Zappley gave a different account. He testified that defendant offered the officers the keys before Schiaretti had tried to gain entrance through the side door and that they, rather than defendant, removed the keys from his pocket.
Once the officers entered the apartment kitchen, they seized the digital scale, the suspected crack cocaine and the coffee pot, which contained cocaine residue. They also seized the marijuana blunt that defendant said was in the living room. Expanding the search, they found crack cocaine and "a couple of bags" of marijuana in the living room, some ...