On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-01040.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012 -
Before Judges Payne and Simonelli.
The State appeals, by leave granted, from an order to suppress evidence, consisting of drugs and an incriminating cell phone, obtained in the protective sweep of an apartment in Newark following the commission of two random murders, and from the suppression of the fruits of the seizure of that evidence, including defendant's confession to participation in the murders and his statement incriminating his three companions. On appeal, the State argues:
THE STATE MET ITS BURDEN WHEN IT ESTABLISHED THAT THE POLICE OFFICERS HAD AN ARTICULABLE REASON FOR SUSPECTING POTENTIAL HARM FROM DANGEROUS PERSONS IN THE APARTMENT, AND THEREFORE, THE PROTECTIVE SWEEP WAS CONSTITUTIONALLY VALID. THE TRIAL COURT'S ERRONEOUS FACTUAL AND LEGAL CONCLUSIONS MANDATE A REVERSAL OF THE SUPPRESSION ORDER.
We decline to accept the State's argument and affirm.
On November 13, 2003, Shanfidine Sutton was shot and killed in East Orange by the masked front seat passenger of a white Jeep Cherokee with the letter "G" on the driver's side. Following the shooting, the Jeep, containing several young African-American males, fled the scene. Shortly thereafter a fifteen-year-old victim was also shot and killed when he refused to give up his black leather jacket to the front seat passenger of a Jeep that looked like that used in the Sutton murder. During the murder investigations, it was determined that the two victims were shot with the same gun, which remained unrecovered. Additional investigation disclosed that the Jeep had been reported stolen a few hours before the first shooting. When recovered and returned to the Jeep's owner on the night of the shootings, the owner reported that he had left a Nextel cell phone in the car, and that it was missing.
On November 14, 2003, law enforcement obtained a communications data warrant for records of calls made to and from the missing Nextel phone. At 9:17 a.m. on November 15, the records were received by telefax by homicide investigators at the Essex County Prosecutor's Office. Eight calls, including the last, had been made to a particular apartment on Martin Luther King Boulevard in Newark. As a consequence, investigators from the Prosecutor's Office, along with Newark and East Orange police officers, determined to investigate that location. They arrived at the apartment at 11:20 a.m., knocked on the door, and were admitted by a person named Jayaad Brown, who was immediately detained.
A protective sweep of the apartment disclosed a male named Shawn Upshaw in the back bedroom, sitting on the bed. Upon the discovery of a substantial quantity of crack cocaine in plain view on the dresser in that room, Upshaw was taken into custody. On proceeding to the second bedroom, defendant and a female were discovered in bed. A Nextel cell phone was lying on the mattress. When the number of the phone taken from the Jeep was called, the phone on the bed rang.
Because of the discovery of the cocaine, all the remaining occupants of the apartment were taken into custody. A search warrant was then obtained, and various other materials were seized from the apartment. Subsequent interrogation disclosed that defendant was the only occupant of the apartment who had participated in the murders. However, he incriminated the remaining participants while confessing his own culpability in the crimes.
On March 19, 2004, an Essex County Grand Jury returned a fourteen-count indictment against defendant and his co-conspirators charging first-degree murder and other crimes. Upshaw was charged with drug crimes as the result of the discovery of crack cocaine and the later discovery, in the search conducted pursuant to the warrant, of ten bags of heroin. Prior to trial, defendants moved to suppress the evidence seized at the apartment, contending that it was the product of an illegal search and seizure. An evidentiary hearing was held, at which testimony was given by John Melody, a lieutenant assigned to the Essex County Prosecutor's Officer Homicide Squad, and by Jayaad Brown. At the conclusion of the hearing, the trial court rendered an oral decision in which it denied defendants' motion.
In its decision, the court recognized that the officers did not have a warrant or probable cause to search the apartment.
However, the court found credible Lt. Melody's testimony that Brown consented to the entry of the officers into the apartment for investigatory purposes, and it found incredible Brown's testimony to the contrary. Additionally the court found the officers' brief warrantless survey of the premises was justified as a protective sweep under decisions such as Maryland v. Buie, 494 U.S. 325, 335-36, 110 S. Ct. 1093, 1099, 108 L. Ed. 2d 276, 287 (1990) and State v. Smith, 140 N.J. Super. 368, 372 (App. Div. 1976), aff'd, o.b., 75 N.J. 81 (1977). The court held:
In this case, upon entering the apartment at 730 Martin Luther King Boulevard, officers conducted a brief survey of the premises to ensure that the occupants of the dwelling were not armed. The police did not extend the survey beyond the scope necessary to secure their own safety. The totality of the circumstances presents an articulable reason for believing that there might be persons unseen in the apartment that posed a threat to the safety of the police.
Those circumstances were:
1.) The police were investigating a ruthless double murder which occurred, ...