On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-06-0978.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 12, 2012
Before Judges Axelrad and Sapp-Peterson.
Following denial of his suppression motion, defendant James Height pled guilty to third-degree possession of CDS (Xanax), N.J.S.A. 2C:35-10a(1). On May 6, 2011, defendant was sentenced to five years of probation and accepted into Drug Court. Defendant appeals, challenging denial of his suppression motion. We reverse and remand.
Neptune Township Patrolmen Leslie Borges and Michael Adam, and Regina Jackson, a dispatcher, testified at the suppression hearing. Jackson testified that at 12:26 p.m. on January 19, 2010, an anonymous caller contacted the police and expressed the belief that "subjects" at a specified address in Neptune were "smoking crack cocaine and there is a child there." The officers were promptly dispatched to investigate the call. Ptl. Borges testified he interpreted the call as "subject smoking crack in apartment with a juvenile present." The officers deduced that the proper location was actually a garage behind that house, which had been converted into a two-floor apartment.
Ptl. Borges knocked on the door. Less than a minute later, Ptl. Adam saw a curtain pulled back, a black woman peer out, and immediately draw the curtain. He informed Ptl. Borges of his observation. The other officer continued to knock and, within a few seconds, a young black girl who appeared to be nine or ten years old answered the door. Ptl. Borges asked if her parents were home, and she responded that her mother was home. He then asked her to have her mother come to the door. From his vantage point, Ptl. Borges observed a kitchen area immediately inside the front door, behind which was a door to what appeared to be a bedroom. To the left, the officer could see a living room area and another door behind that which appeared to be another bedroom.
Ptl. Borges observed an older white female by the door to the rear bedroom. It appeared to him she was speaking with someone. She came to the door and identified herself as the babysitter. Ptl. Borges asked her if anyone else was in the apartment, to which she responded "no." Both officers testified that based on their observations and the information they had received from the young girl, they believed the babysitter was lying about whether there were other occupants in the apartment. Ptl. Borges believed the tip was corroborated by the presence of the girl, multiple adults in the apartment, and the babysitter being deceitful. He expressed a concern for his safety and that of the girl because he was unaware of the number of people in the apartment and his "training and experience" had taught him that weapons may be involved with narcotics-related offenses.
Ptl. Borges asked the babysitter to have everybody else in the apartment come out, to which she again asserted that no one else was there. He then saw the door to the back bedroom move. He entered the apartment, drew his firearm, and directed the girl to go into the other bedroom, which appeared to be an unoccupied child's bedroom, because he believed she would be safer there. Officer Adam entered the apartment behind him and stayed with the babysitter for officer safety.
Ptl. Borges identified himself as a police officer and directed whoever was in the back bedroom to come out. A man, later identified as defendant, peeked out from behind the door, and the officer ordered him to exit the bedroom and show his hands. Defendant did so, and the officer had him sit in a chair in the living room area with Ptl. Adam and the babysitter.
Ptl. Borges then entered the back bedroom to see if anyone was there. He observed a closed closet, opened it, and found a black female standing inside who he later identified as the child's mother. He directed her to join the others in the living room with Ptl. Adams.
He then looked under the bed, a "common hiding place," to see if there were any other occupants. He observed a cigarette burning in an ashtray. Concerned it could start a fire, the officer pulled the ashtray out from under the bed. He observed ashes, cigarette butts, pieces of burnt "Chore Boy" copper mesh, commonly used as a filter in homemade crack pipes, and a torn piece of plastic.
The officer returned to the living room and asked the child's mother why she had been hiding in the closet. She said she was frightened when she saw police so she went and hid there. Ptl. Borges told her about the paraphernalia he had found in the ashtray and advised her about the tip. He further told her he believed there was more drug paraphernalia and possibly narcotics in the apartment, and asked if she would show him if there was anything else there. She assented, led him to the back bedroom, and pointed out a small box under the bed. Inside the box he found a glass tube pipe, a plastic bottle made into a pipe, a metal pushrod, and a spoon.
All three adults were formally arrested, defendant was searched, and the officers found in his possession three Xanax tablets for which he did not have a prescription. Defendant was charged with possession of CDS for the Xanax, and a disorderly persons offense for use or possession of the paraphernalia found in the smoking ...