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State of New Jersey v. Johnell Bowens

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 23, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHNELL BOWENS, A/K/A JOHNEL BOWENS, A/K/A JONEL BOWNES, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-09-1607.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 31, 2012

Before Judges Sapp-Peterson and Ostrer.

Defendant appeals from the denial of his suppression motion arising out of the warrantless entry into an apartment where defendant and his cohorts were suspected to be engaging in drug activity. We affirm.

Two witnesses, Jersey City police officers Joseph Seals and Edmond Redmond, testified at the suppression hearing. According to the testimony, police were dispatched to an apartment based upon information received from a concerned citizen, whose identity was unknown, that six known drug dealers had entered the apartment carrying bags. When police arrived at the apartment, they knocked on the door, and a person, later identified as defendant, asked who it was. When police did not respond, defendant opened the door, and police immediately observed tennis-size balls of suspected cocaine and narcotics paraphernalia on a table in the apartment. Defendant stated, "Oh, shit, the police," and he tried to close the door. Having observed the suspected narcotics and paraphernalia on the table, Officer Seals inserted his leg in the door in an effort to block defendant's attempt to close the door. Defendant, however, was able to close the door.

Defendant slammed the door, and the officers heard people scurrying about and objects falling. They then forcibly opened the door. The apartment was empty at that point. The officers looked out of a nearby window, where they observed a black Nike boot on the window sill. They saw two males running and hopping over a wall. The two men, one of whom was defendant, were apprehended by other officers stationed outside of the apartment. The other male, defendant's co-defendant, Sandy Wilcher, was observed to be missing a boot at the time he was being processed following the arrest. The boot matched the black Nike boot found on the window sill of the apartment police had forcibly entered earlier. The officers obtained a search warrant to search the remainder of the premises and seized the suspected narcotics and narcotics paraphernalia.

In a ten-count indictment, defendant and Wilcher were charged with numerous drug-related offenses, as well as resisting arrest and assault upon a police officer. Following the denial of his suppression motion, defendant entered into a negotiated plea agreement with the State, under which he entered a guilty plea to second-degree possession of cocaine and reserved his right to appeal the denial of his suppression motion. The court imposed a ten-year custodial sentence with a five-year period of parole ineligibility, along with appropriate fines and penalties. The present appeal followed.

On appeal, defendant contends the warrantless entry into the apartment and subsequent seizure of the items located within the apartment violated his right to be free from an unlawful and unreasonable search and seizure, as guaranteed by the United States and New Jersey Constitutions. We disagree and are satisfied that Judge Callahan properly found the officers observed the suspected contraband in plain view, and exigent circumstances justified their warrantless entry into the premises and seizure of the contraband.

The essential inquiry is whether the plain view exception to the warrant requirement applied to this case, combined with the individuals' actions immediately after they realized the police were at the door, created exigent circumstances permitting the officers to forcibly enter the apartment and seize the suspected narcotics and narcotics paraphernalia. As a reviewing court, we will uphold the factual findings made by a judge presiding over a suppression motion hearing so long as those findings are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243 (2007). We accord deference to those findings, recognizing that it is the trial judge who has had the opportunity to assess the credibility of witnesses under both direct and cross-examination and experiences the feel of the case. State v. Johnson, 42 N.J. 146, 161 (1964). We owe no such deference, however, to the judge's legal conclusions and, in that regard, review the motion judge's legal determinations de novo. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010).

Measured by this standard of review, our analysis is informed by the well-settled principle that "warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions. Both constitutional standards require that such seizures or searches be conducted pursuant to a warrant issued upon a showing of probable cause." State v. Pineiro, 181 N.J. 13, 19 (2004) (internal citations omitted). "Because our constitutional jurisprudence evinces a strong preference for judicially issued warrants, the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure [into a dwelling] falls within one of the few well-delineated exceptions to the warrant requirement." Elders, supra, 192 N.J. at 246.

One exception to the warrant requirement is the plain view exception, which the trial court concluded applied to the facts in the present matter. Under the plain view exception, three requirements must be satisfied:

First, the police officer must be lawfully in the viewing area.

Second, the officer has to discover the evidence 'inadvertently,' meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be 'immediately apparent' to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.

[State v. Mann, 203 N.J. 328, 341 (2010) (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)).]

With respect to the third requirement, "in order to seize evidence in plain view, a police officer must have probable cause to associate the item with criminal activity." Ibid. (quoting Bruzzese, supra, 94 N.J. at 237).

Here, Judge Callahan determined the plain view exception applied and, given the attendant circumstances of the occupants' knowledge of police presence, as well as their knowledge that there were drugs and drug paraphernalia within the premises, Judge Callahan also found that exigent circumstances existed based upon the police officers' knowledge of these facts.

As Judge Callahan found, all three requirements for application of the plain view exception to the warrant requirement were met here. Police were lawfully on the premises to investigate information they received from a concerned citizen, which called for further investigation. See State v. Kurland, 130 N.J. Super. 110, 114-15 (App. Div. 1974) (noting that information received from a citizen informant stands on a very different footing than information received from a police informant). A citizen informant is motivated out of concern for society. Id. at 115. The fact that the citizen may be unknown does not undercut the reliability of the information received.

Additionally, the officers made their observations from a common hallway within a multi-unit apartment building. See State v. Cleveland, 371 N.J. Super. 286, 300-01 (App. Div.) (stating that in multi-occupancy premises, occupants cannot have a reasonable expectation of privacy in common areas), certif. denied, 182 N.J. 148 (2004).

With respect to the second prong, the officers discovered the evidence inadvertently. The fact that they were investigating information received that there were multiple alleged drug dealers in the apartment is not evidence of their actual knowledge that narcotics were in fact located in the apartment, let alone where the evidence was located within the apartment.

Finally, as to the third prong, both Officers Seals and Redmond testified regarding their prior experiences in narcotics investigations, which included hundreds of drug-related arrests and investigations. Thus, they had the requisite probable cause to associate the items they observed in plain view with criminal activity.

Likewise, Judge Callahan properly found exigent circumstances justified the warrantless entry into the home. Police can enter a home without a warrant under exigent circumstances, and the determination of whether those circumstances exist is a fact-specific inquiry. State v. De La Paz, 337 N.J. Super. 181, 195 (App. Div.), certif. denied, 168 N.J. 295 (2001). Among the factors to consider are (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 that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (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).]

Judge Callahan noted in his decision that the degree of urgency compared to the amount of time required to obtain a warrant, the officers' reasonable beliefs the contraband was about to be moved or be destroyed, the gravity of offenses involved, the possibility that a suspect was armed, and the time of entry combined to create exigent circumstances, and therefore the officers' forcible entry into the apartment was justified. These findings are supported by substantial, credible evidence in the record and are entitled to our deference. Elders, supra, 192 N.J. at 243-44.

Affirmed.

20120723

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