April 25, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
JOHNNIE DAVILA, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, in part, in Newark.
2.) The murders were committed with a gun.
3.) The murders occurred within the preceding 48 hours.
4.) The murders were committed by several African-American males.
5.) The gun used in the commission of the murders was missing.
6.) The apartment in question was in Newark.
7.) A cellular telephone connected to the murders was being used to call the apartment in Newark where the police were present investigating the double murder. . . . In light of these facts, Lieutenant Melody's concern for the safety of the officers and the action taken to ameliorate that threat were clearly reasonabl[e].
Thereafter, defendant conditionally pled guilty to two counts of felony murder and one count of conspiracy to commit robbery in return for an offer of thirty years in custody with a thirty-year parole disqualifier. Following sentencing, defendant appealed, raising issues regarding the constitutionality of the sweep of the apartment and the admissibility of his confession. We affirmed in an unreported opinion. State v. Davila, No. A-1383-05 (App. Div. April 16, 2009). The Supreme Court granted certification to consider defendant's Fourth Amendment challenge and, recognizing the principles of Buie to be applicable in this non-arrest circumstance, reversed and remanded the matter for a new hearing under the principles that it had articulated. State v. Davila, 203 N.J. 97, 127-31 (2010).
The Court stated:
We hold that a protective sweep of a home may only occur when (1) law enforcement officers are lawfully within the private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger.
Where those substantive conditions are met, as a matter of procedure, the sweep will be upheld only if (1) it is cursory, and (2) it is limited in scope to locations in which an individual could be concealed. [Id. at 125.]
Applying those principles, the Court found that there was sufficient evidence for the trial court to find that the officers entered the apartment with the consent of Brown. Id. at 109-11, 130. However, the Court found a lack of evidence that would justify the officers' protective sweep. It observed:
There was no apparent showing of any on-the-scene perception that developed once the officers arrived and began to engage Brown that created a reasonable suspicion of a dangerous person within the premises who might harm the officers. The possibility that persons involved in the homicides might be in the apartment was mere speculation, as the officers admitted that they lacked probable cause to arrest or to search for evidence and cited to no unfolding development, spontaneous and unforeseen, that created a perception of danger requiring the reaction of a protective sweep. Rather, the record suggests that the officers arrived with the intent to perform a "protective sweep." If that assessment from this record turns out to be accurate, then the search was unconstitutional, and its fruits must be suppressed.
[Id. at 126.]
Additionally, the Court found the seven factors that the trial court had articulated as justifying the protective sweep to be inadequate to legitimize the investigative technique the officers employed. Id. at 130. The court observed:
With the exception of the seventh factor - the use of the cellular telephone to call the apartment - those observations, if deemed sufficient to meet the standard for a protective sweep, would have justified a warrantless search of any apartment within the City of Newark. Not even the seventh factor justifies the search that occurred: the communications data warrant demonstrated telephone calls to twenty or thirty numbers. We cannot imagine that the police would have been justified in searching each property associated with those numbers. Thus, the factors established by the trial court, though relevant, are insufficient in the aggregate to justify the level of invasion that occurred in this case. [Ibid.]
The matter was thus reversed and remanded for a further hearing under Buie's standards. Id. at 131.
At the remand hearing, the State called as its sole witness Lt. Paul Sarabando, an investigator employed by the Essex County Prosecutor's Office and assigned to its Homicide Squad. At the first hearing, Lt. Melody had demonstrated his unfamiliarity with the records produced in response to the communications data warrant and their content, and he testified consistently that the only reason the officers went to the apartment on Martin Luther King Boulevard was because the last call had been directed there. At the rehearing, Lt. Sarabando testified in detail as to his analysis of the call records. He stated that at 12:24 a.m., two calls were made from the Nextel phone to the apartment. Two minutes later, two calls were made to the Newark Auto Cab Company on Springfield Avenue. Then, eighteen minutes later, two more calls were made to the apartment; one at 12:42 a.m. and a final one at 1:01 a.m. From that evidence, Lt. Sarabando concluded that the person possessing the Nextel phone had called the apartment to see if anyone or someone in particular was there. Having received a positive response, the caller summoned a cab in order to go to the apartment. Lt. Sarabando knew that it was necessary to call a resident to gain entry to that particular building, and that is what he concluded the caller, once he arrived, had done. Since no further calls had been placed from the Nextel after the final call to the apartment at 1:01 a.m., Lt. Sarabando speculated that the individual placing the calls remained there.
As a consequence, at approximately 11:20 a.m., Lt. Sarabando, Lt. Melody and four other officers proceeded to that location, knocked on the door, and were granted entry by Brown. Lt. Melody was the first to enter, followed closely by Lt. Sarabando and the others. According to Lt. Sarabando, immediately after the officers entered the apartment, he asked Brown, as was his invariable custom, whether anyone else was in the apartment. Brown responded that there were "people in the back." That response triggered a concern for officer safety, and as a consequence, a protective sweep of the apartment was conducted, during which the three other apartment occupants were discovered, and the crack cocaine and Nextel phone were found in plain view.
Lt. Sarabando confirmed that, until the incriminating evidence was found, the officers lacked probable cause for a search. He also admitted that, upon entry by the police, Brown did not appear nervous, and Brown did not call out to anyone. Additionally, upon entry, he saw nothing suspicious and saw no weapons. Indeed, the subsequent search of the apartment did not produce the murder weapon or any other weapon.
In a decision placed on the record on May 9, 2011, the trial court found first that the police had gone to the apartment for a legitimate purpose based on information learned from the telephone call records. It did not find "that they went to the place with intent to obtain consent as a pretext for conducting a warrantless search there." Addressing the issue of whether the officers had a reasonable articulable suspicion, once they entered the apartment, that the area to be swept harbored a dangerous individual, the court observed:
The factors that the court initially cited for finding the existence of a reasonable articulable suspicion were rejected by the New Jersey Supreme Court. It's that simple. So, that's what they told me, so the question then arises: Okay, then what else was there? If anything.
Answering that question, the court found the sequence of phone calls described by Lt. Sarabando was insufficient to raise a reasonable suspicion.
The court then considered the lieutenant's testimony that Brown had responded to his question regarding other occupants by stating that there were people in the back. It stated:
The court has great difficulty, and in fact does not credit that testimony for a couple of reasons. First of all, Detective Sarabando testified that Detective Melody was right next to him when Brown supposedly said that there were other people there. When one examines Detective Melody's testimony, it is absolutely bereft of that. If somebody makes the argument: Nobody asked him that; I'd reject it. It would be rejectable. That fact is of such consequence that if it were so? Detective Melody, whose testimony I credited? Would have said so.
In addition, it is stipulated by the parties that the two police reports about this incident, or that refer to this residence and the police activity there, neither of them refer to alleged remarks by Mr. Brown to the police that there were other people in that apartment. And that omission is just so glaring, this court cannot see its way around it; and does not. . . . I specifically find that when the police gained entrance into that apartment, that independent of any suspicion at all, the intent of the police was to fan out, without regard to whether they had any belief, reasonable belief that someone was inside the apartment that posed a danger.
In support of that finding, the court quoted testimony by Lt. Melody at the first hearing tending to indicate that he had immediately formed the intent to do a protective sweep of the apartment upon entering it.
As a consequence, the court found that the State had failed to meet its burden of demonstrating the constitutionality of the search and seizure. It therefore signed an order suppressing the evidence discovered at the apartment in the sweep and the subsequent fruits of that illegal conduct.
The State moved for reconsideration. In doing so, it sought to explain Lt. Melody's silence regarding Brown's response to Lt. Sarabando's question and the absence of any reference to that response in the officers' reports by noting that the state of the law was different at the time of the 2003 hearing. Additionally, it argued that no one had asked Lt. Melody the question that would have elicited the testimony that the court found to be so crucial. To cure the evidentiary deficiency, the State sought to call Lt. David Frisk, another investigator who was present in the apartment, as well as Lt. Melody, to corroborate the utterance of Brown's reply.
Following argument, the court ruled against the State, finding that its substantive arguments had previously been considered, including an argument based on the significance of the Nextel call record evidence. In that regard, the court stated:
[T]he court used the cell phone to justify the protective sweep in its first ruling on the motion to suppress. When the Supreme Court reviewed this court's decision[, it] found that the factors used did not rise to the level of justifying a protective sweep. Accordingly, the continued use of the cell phone argument is unpersuasive and does not militate towards reconsideration.
The court additionally rejected the State's argument that the need to demonstrate facts that would warrant a reasonably prudent officer to believe that the area to be swept harbored a dangerous individual was not recognized in 2003, noting that requirement in Buie. The court observed:
Brown's supposedly telling the officer there were other people in the apartment would have been the only evidence that could have justified the protective sweep in conjunction with the seven factors found by this court. For the State to contend it was not important enough to memorialize or testify to demonstrates the State's misunderstanding of the law arising out of Buie.
As a final matter, the court rejected the State's request to reopen the suppression hearing to permit the testimony of Lt. Frisk and Lt. Melody, noting that the State could have called them at the rehearing and did not do so despite the "glaring conflict" between the testimony of Lt. Melody and Lt. Sarabando.
Upon denial of reconsideration, the State moved for leave to appeal, and its motion was granted.
On appeal, the State argues that the trial court did not properly evaluate the totality of the evidence adduced at the original and remand hearings, and thus reached erroneous factual conclusions. Rather than supplementing its initial findings as justification for the protective sweep after hearing the additional evidence produced at the remand hearing, the court rejected those initial findings, despite the fact that the Court had found them "relevant," but just not sufficient to support the initial ruling. Significantly, according to the State, the trial court rejected factor seven, the use of the cell phone to call the apartment, and thus erroneously concluded that the additional evidence presented by Lt. Sarabando regarding the sequence of the calls and the conclusion that he drew from that evidence were deemed by the trial court to be irrelevant to its analysis.
Further, the State argues that the court erred in attributing any significance to Lt. Melody's failure to mention at the first hearing that Brown had disclosed the presence of other people in the apartment. It argues that the absence of any reference to Brown's statement by Lt. Melody did not make Lt. Sarabando's testimony incredible. Rather, the testimony of the two lieutenants complemented each other and did not conflict. Finally, the State argues that it should have been permitted to reopen the hearing to present corroborative testimony by Lt. Melody and Lt. Frisk.
We reject the State's argument that the significance of Buie was not appreciated at the time of the initial hearing, and that fact explained the absence of testimony establishing that Brown had disclosed the presence of others in the apartment. A review of our decision affirming the trial court's order denying the defendants' motion for suppression discloses that Buie's principles were recognized as applicable both by us and the trial court. See Davila, supra, slip op. at 7 (discussing the trial court's findings), 10-12 (discussing our application of Buie in a non-arrest circumstance in State v. Lane, 393 N.J. Super. 132 (App. Div.), certif. denied, 192 N.J. 600 (2007)).
Additionally, we reject the argument that Lt. Sarabando's testimony and that of Lt. Melody were complementary. In that regard, we note the following exchange with Lt. Melody on cross-examination:
Q. Once you're in [the apartment], your feeling is that you could go check the entire apartment, right?
A. For the safety of myself and the other guys in the apartment.
Q. You didn't know that there was any individuals there?
A. I did not know anybody was in there.
Further, our review of the testimony of Lt. Melody in its entirety leads us to conclude that he formulated the intent to sweep the apartment upon entry. In that regard, Lt. Melody admitted that upon entry, he did not see Brown trying to conceal anything, that Brown did nothing threatening, and that nothing occurred to cause suspicion as to what was going on in the apartment. Lt. Melody testified that he commenced the sweep because of his "feeling inside that if it was the last phone call to a location, they might have been looking for that location to fall asleep at that location. I was very leery of the fact that our suspects may have been in that apartment building." In light of this testimony, we are satisfied that an evidentiary basis existed to support the court's conclusion that Lt. Sarabando's testimony regarding Brown's disclosure of others in the apartment was not credible. We are also satisfied that the court did not abuse its discretion in declining to reopen the rehearing to permit further testimony on that issue from Lt. Melody or Lt. Frisk.
However, we agree with the State's argument that the trial court mistakenly regarded the factors upon which it initially relied in denying suppression, including the cell phone evidence, to have been rejected as relevant by the Supreme Court. To the contrary, the Court held that "the factors established by the trial court, though relevant, are insufficient in the aggregate to justify the level of invasion that occurred in this case[,]" Davila, supra, 203 N.J. at 130 (emphasis supplied), and it remanded the matter for a further hearing and ruling as to whether Buie's standards had been met.
In rejecting the State's initial proffer of cell phone evidence, the Court noted that the call records obtained pursuant to the communications data warrant demonstrated calls to twenty or thirty numbers, and the Court held: "We cannot imagine that the police would have been justified in searching each property associated with those numbers." Ibid. At the remand hearing, Lt. Sarabando established the existence of a sequence of calls, and he proffered a plausible interpretation as to the significance of that sequence, thereby providing a far stronger rationale for the officer's focus on the Martin Luther King Boulevard apartment and their decision to investigate what was occurring there. Nonetheless, our careful review of the record discloses no evidence, other than the discredited testimony of Lt. Sarabando regarding Brown's disclosure, to support the position that the officers on the scene had a reasonable articulable suspicion that the back rooms of the apartment harbored a person that might pose a danger to them.*fn1
As a consequence, we agree with the trial court that the State failed to meet its burden of proof, and we affirm the order of suppression entered in this matter.*fn2