July 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LLOYD A. FISHER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 09-05-0405 and 09-07-0541.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011 -
Before Judges Carchman and Nugent.
Defendant Lloyd A. Fisher was charged in two indictments with, collectively, four counts of possession of a controlled dangerous substance (CDS) with intent to distribute, and one count of possession of a CDS. He pled guilty to all counts and was sentenced in accordance with a negotiated guilty plea to an aggregate prison term of twelve years with fifty-three months of parole ineligibility. Defendant appeals from the judgment of conviction and argues that the trial court erroneously denied his motion to suppress the drugs seized from his refrigerator by the police who entered his home without knocking when they executed a search warrant; and that the trial court improperly concluded it was bound to impose the sentence agreed upon by the parties in the plea agreement.
We conclude that the manner in which the police executed the search warrant was reasonable, and that the trial court properly sentenced defendant in accordance with his negotiated plea agreement. We affirm.
Somerset County grand juries charged defendant in Indictment No. 09-05-0405 (the first indictment) with third-degree possession with intent to distribute a CDS, cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3) (count one); third-degree possession with intent to distribute a CDS, heroin, N.J.S.A. 2C:35-5a(1) and -5b(3) (count two); and fourth-degree possession with intent to distribute a CDS, marijuana, N.J.S.A. 2C:35-5a(1) and -5b(12) (count three); and in Indictment No. 09-07-0541 (the second indictment) with second-degree possession with intent to distribute a CDS, cocaine, N.J.S.A. 2C:35-5a(1) and -5b(2) (count one); and third-degree possession of a CDS, cocaine, N.J.S.A. 2C:35-10a(1) (count two).
Following his unsuccessful attempt to suppress the drugs that resulted in the first indictment, defendant pled guilty to all counts in both indictments. In exchange, the State recommended imposition of an aggregate extended prison term of eight years with forty-six months of parole ineligibility on the first indictment, and an aggregate extended prison term of twelve years with fifty-three months of parole ineligibility on the second indictment, the sentences to be served concurrently. The State also agreed to dismiss a pending disorderly persons offense.
On February 5, 2010, the court sentenced defendant on the first indictment to concurrent prison terms of eight years with forty-six months of parole ineligibility on counts one and two; and to a concurrent prison term of eighteen months on count three. On the second indictment, the court sentenced defendant to concurrent prison terms of twelve years with fifty-three months of parole ineligibility on count one, and three years on count two. The court ordered that the sentences on all counts were to run concurrently, and imposed appropriate fines and assessments.*fn1
Thereafter, defendant filed this appeal and raises the following points for our consideration.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE DRUGS SEIZED AFTER POLICE FAILED TO COMPLY WITH THE KNOCK AND ANNOUNCE REQUIREMENT OF THE APRIL 30, 2009 SEARCH WARRANT.
THE TRIAL COURT ERRED IN CONCLUDING IT WAS BOUND, FOR PURPOSES OF SENTENCING, TO THE TERMS OF THE PLEA AGREEMENT WHEN THE TRIAL JUDGE WAS FREE TO IMPOSE ANY LEGAL SENTENCE FOR THE OFFENSE TO WHICH DEFENDANT HAD PLED GUILTY.
The charges in the first indictment resulted from defendant's possession of drugs seized from his refrigerator by law enforcement officers who executed a search warrant for his residence. Defendant concedes that the search warrant was properly issued and predicated on probable cause, but challenges the manner in which the warrant was executed. Specifically, defendant asserts that the officers who searched his residence were required by the Fourth Amendment to knock and announce themselves before entering the house through its open doors, even though other officers had already arrested him in front of his house, where he remained during the search. Defendant contends that because the officers who searched his home did not knock and announce themselves before entering the house, the trial court should have suppressed the drugs they seized from his refrigerator.
The evidence adduced at the suppression hearing revealed the following facts. On April 30, 2009, Somerville Police Department Investigator Christopher Gelardi, while working with a narcotics task force and conducting an investigation with the Somerset County Prosecutor's Office, obtained a warrant, which authorized the search of defendant's Somerville residence between 8:00 a.m. and 11:59 p.m. After Gelardi obtained the warrant, he and other law enforcement officers drove to defendant's residence, arriving at approximately 6:00 p.m.
When the first group of officers arrived, defendant and his girlfriend
were standing on the sidewalk that led from the street to the front
steps of defendant's home.*fn2 The police had
previously made two controlled drug buys from defendant, and when they
arrived at his home to execute the warrant, a member
of the task force recognized him. As the officers exited their van,
they started yelling "Police." One of the officers detained defendant
outside while Gelardi's group ascended the three front steps, passed
through, first, the storm door, then the door opening into the
enclosed front porch, and finally, through a third door that opened
into the living area of defendant's residence. As they entered the
porch and house, the officers yelled loudly, "Police, search warrant."
During their search, the officers encountered one occupant*fn3
on the first floor, "in the back of the mud room and laundry
room type area." The officers seized drugs from the refrigerator in
the mud room.
Gelardi testified that when he and the other officers "went to the first screen/storm type door" at the top of the steps, everybody, including Gelardi, was yelling "police, search warrant." Gelardi believed that anybody in the house would have "heard us coming through, heard us coming to the front door . . . [b]ecause we were yelling police, search warrant."
The first officer to enter defendant's two-story, single-family residence was Officer Omar Belgrave, an employee of the Somerset County Prosecutor's Office who was working with the narcotics task force. He and the officers with him were yelling "police" as they exited their van, and again as they entered the residence. As he approached the storm door, Belgrave could see through the glass "totally into the house" because both the second porch door and the door to the living quarters of the home were "wide open." Belgrave opened the storm door, which was already slightly ajar. As he passed through the three doors, he and the other officers continued to announce their presence. The State did not dispute that none of the officers knocked or rang the doorbell.
The trial court denied defendant's suppression motion. The court found that when the law enforcement officers arrived at defendant's residence, defendant was on the sidewalk outside of his home. The officers announced in a loud fashion that they were police and were there to execute a search warrant. The court also found that the exterior storm door was slightly ajar, that the interior doors were wide open, and that the officers could see past the interior doors into the house. The court concluded that under all of the circumstances, "the conduct of the police . . . did not require a knock because the object of that warning was already in custody and would not have been surprised by entry into the premises."
Our scope of review of the trial court's factual findings and credibility determinations in a suppression hearing is limited. We must uphold the court's factual findings if they are "supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We "should give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964) (citation omitted). Our review of a judge's legal conclusions, however, is plenary. Handy, supra, 206 N.J. at 45.
The trial court determined that the police announced their presence and their purpose, and that defendant, who had been detained outside of his home, "knew exactly what was happening." Those conclusions are amply supported by the evidence. Significantly, defendant testified on his own behalf and did not dispute that he was well aware of the officers' presence and purpose before they entered his home. Accordingly, we must gauge the reasonableness of the officers' conduct in that factual context.
When law enforcement officers execute a search warrant, the search "is presumed to be valid . . . [and t]he burden of demonstrating the invalidity of such a search is placed upon the defendant." State v. Valencia, 93 N.J. 126, 133 (1983). To meet that burden, "[t]he defendant must establish that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable." Ibid. "[T]he method of an officer's entry into a dwelling 'is an element of the reasonableness inquiry under the Fourth Amendment.'" State v. Johnson, 168 N.J. 608, 616 (2001) (quoting Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 1918, 131 L. Ed. 2d 976, 982 (1995)).
"The knock-and-announce rule renders unlawful a forcible entry to arrest or search 'where the officer failed first to state his authority and purpose for demanding admission.'" State v. Robinson, 200 N.J. 1, 13-14 (2009) (quoting Miller v. United States, 357 U.S. 301, 308, 78 S. Ct. 1190, 1195, 2 L. Ed. 2d 1332, 1337 (1958)). The purposes of the rule are, generally, to decrease the risk of violence occasioned by an individual fearing for his or her safety, protect privacy by reducing the risk that police will enter the wrong premises, and prevent damage to the premises police enter. Johnson, supra, 168 N.J. at 616.
The rule's requirement "is not particularly onerous." Robinson, supra, 200 N.J. at 14. "What is generally required is that the officer give appropriate notice of his authority and purpose to the person . . . in apparent control of the premises to be searched." 2 Wayne R. LaFave, Search and Seizure § 4.8(c) at 670-71 (4th ed. 2004) (internal quotation marks and footnotes omitted). When law enforcement officers enter a building to execute a search warrant, we test the reasonableness of the entry "against the policies which undergird the common law's adoption of the 'knock and announce' rule." State v. Nunez, 333 N.J. Super. 42, 50 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001).
Here, defendant was the person in apparent control of his residence. Indisputably, he knew who the officers were and why they were there. There was no need to have him open the door to permit the police to enter his residence without damaging it because the storm door was slightly ajar and the interior doors were open. There was virtually no likelihood of the police entering the wrong premises, particularly after they saw defendant sitting or standing in front of the house.
Nor was there a likelihood of violence. The search did not occur late at night, the doors of the residence were open, the defendant and his girlfriend were outside, and the police loudly and repeatedly announced their presence and their purpose. As Gelardi testified, anyone in the house likely would have heard the police. Under those circumstances, it is not reasonable to believe that occupants would have mistaken the police for intruders against whom defensive measures were required.
Indisputably, "[t]he touchstone of the Fourth Amendment is reasonableness . . . ." State v. Davila, 203 N.J. 97, 111 (2010) (quoting United States v. Knights, 534 U.S. 112, 118-19, 122 S. Ct. 587, 591, 151 L. Ed. 2d 497, 505 (2001)). Having tested the officers' entry into defendant's home against the policies undergirding the "knock-and-announce" rule, we conclude that the entry was reasonable.*fn4
Defendant next contends that the matter must be remanded for resentencing because the trial court thought it was bound by the plea agreement. Defendant's argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following. The State and defendant entered into their plea agreement based upon the Attorney General's Brimage*fn5 guidelines governing plea bargaining in CDS prosecutions. Those guidelines exist to further judicial review of plea agreements based upon a prosecutor's plea offer under N.J.S.A. 2C:35-12, which requires a judge to impose statutorily mandated minimum term or extended term sentences for specified drug offenses unless a defendant has pled guilty pursuant to a negotiated plea agreement. Defendant asserts that the trial court mistakenly accepted the representations of the State and defense counsel that the plea was a Brimage plea. Defendant further asserts that "Brimage only applies to school zone offenses."
Defendant is mistaken. N.J.S.A. 2C:35-12 applies "[w]henever an offense defined in this chapter specifies a mandatory sentence of imprisonment which includes a minimum term during which the defendant shall be ineligible for parole, [or] a mandatory extended term which includes a period of parole ineligibility . . . ." (Emphasis added). The statute is not restricted to CDS offenses occurring in school zones.