January 11, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IBN O. WARREN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-0096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2012
Before Judges Parrillo and Maven.
Following denial of his motion to suppress, defendant, Ibn Warren, pled guilty to third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3), in exchange for the State's agreement to dismiss the remaining counts of two indictments and to recommend a three-year term of incarceration with a one-year period of parole ineligibility to run concurrently with the sentence he was then serving. Defendant was sentenced in accordance with the plea agreement and this appeal from the denial of his suppression motion follows. We affirm.
According to the State's proofs adduced at the suppression hearing, on September 8, 2009, at approximately 6:00 p.m., East Orange Police Detective Michael Williams and his partner Detective Ronald Fletcher responded to a three-story multi-apartment dwelling on North 17th Street to investigate a report of several males at that location with handguns. Upon their arrival, the officers exited their unmarked police vehicle and approached two males standing in front of the building. Although in plain clothes, the detectives wore visible police badges around their necks. While detaining the two males for questioning, Detective Williams saw three other men, including defendant, walk out of the doorway and onto the porch of the residence. Defendant was carrying a black plastic bag in his hand and one of the other men, Jerome Mitchell, had a black handgun in his waistband. Detective Williams had a clear view of the handle of the gun, which Mitchell was seen grabbing in his pants.
Resisting Detective Williams' order to stop and get on the ground, the three men ran back inside the building. Defendant was the last of the three men to re-enter and slammed the door as Detective Williams, in pursuit of the trio, tried to enter. Hearing the men running up the staircase inside, Detective Williams kicked open the front door in continued pursuit of the suspects and then yelled for assistance to his partner, who had remained outside speaking to the two unknown males. Detective Fletcher entered the dwelling and the two officers then ran up the stairs to the second floor, where there was a partially open door on the right leading to an apartment. There, Detective Williams saw defendant, who was sitting on the floor of the apartment breathing heavily. Detective Williams apprehended defendant, placed him in handcuffs, and instructed Detective Fletcher to go after one of the other suspects, Mitchell, who was running up the stairs to the third floor.
During the brief chase, Detective Fletcher observed Mitchell kick open the door to the third-floor apartment. Detective Fletcher pursued Mitchell into the apartment, and saw the suspect throw a black object, later found to be a black handgun, toward the corner of the living room near a futon couch. Mitchell continued running into the kitchen, where he was eventually apprehended. By then, the third suspect had jumped out a second- floor window and was apprehended on North 16th Street, as he was running east.
Meanwhile, Detective Williams had made his way to the third floor where, near the doorway to the apartment, he seized the black plastic bag defendant had earlier been seen carrying. The bag contained seventy-eight pink top glass vials of cocaine, sixteen gray top glass vials of cocaine, and seventy-six clear ziplock bags of cocaine. Detective Williams also recovered the handgun, which was loaded with seven bullets, behind the futon in the living room of the third-floor apartment. The officers uncovered $690 in cash on defendant's person.
At the close of evidence, the motion judge upheld the seizure of the cocaine on the ground that defendant had abandoned the property and therefore lacked standing to challenge the officers' actions. Citing State v. Johnson, 193 N.J. 528 (2008), the judge expressly found that defendant had possession and control of the plastic bag; freely and knowingly discarded the bag while fleeing from the police, thereby relinquishing his interest therein; and that there were no other apparent or known owners of the bag.
On appeal, defendant contends the court erred in denying his suppression motion. We disagree.
New Jersey adheres to a policy of automatic standing when the seized property satisfies an element of the charged offense, i.e., possessory offense cases, or where a defendant retains a proprietary, possessory or participatory interest in the place searched or the property seized. Johnson, supra, 193 N.J. at 548-49. A narrow exception to this automatic standing rule has been carved out, however, for abandoned property. Thus, if the State can demonstrate that property was abandoned, a defendant will have no right to challenge the search or seizure of that property. Id. at 548. "Stated differently, a defendant will not have standing to object to the search or seizure of abandoned property." Id. at 548-49.
Traditionally, abandonment has been defined as "[t]he relinquishing of a right or interest with the intention of never again claiming it." Black's Law Dictionary 2 (8th ed. 2004); see also State v. Bailey, 97 N.J. Super. 396, 400 (App. Div. 1967) (relying on same definition). For purposes of standing, "property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property." Johnson, supra, 193 N.J. at 549.
Here, although defendant was not seen actually discarding the plastic bag, Detective Williams observed him holding the bag and moments later discovered defendant only one floor from where the bag was found, sitting on the floor and breathing heavily. In the short interim, defendant had fled into the three-story apartment building upon seeing the police, slammed the door on them, and immediately ran up the stairs in flight from the pursuing officers. From these facts, it is entirely reasonable to infer that from where he was eventually found on the second floor, defendant had run up the additional ten steps to the third floor to discard the bag before running back down to the second floor to distance himself from it.
Indeed, defendant does not really dispute his possession of the plastic bag and subsequent relinquishment of it during his flight from the police. See, e.g., State v. Tucker, 136 N.J. 158, 171-72 (1994); State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999); State v. Farinich, 179 N.J. Super. 1, 6-7 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982). Rather, he focuses on the third element of the so-called "abandonment test" to argue that the State failed to show there were no other apparent owners of the property. We disagree.
In the first place, although the police encountered five males at the scene, defendant was the only one who physically held the bag. He alone discarded it in order to distance himself from its contents, which police had reasonable cause to believe under the circumstances consisted of contraband. And while Mitchell was the only one of three fleeing suspects found on the third floor, he was never observed in possession or control of the plastic bag, but only the gun he was seen discarding.
There were no other known or apparent owners of the plastic bag, found on the floor above defendant only moments after he was seen holding it. On this score, defendant stresses that the record does not clearly show whether the bag was found in the common hallway or inside the door to the third floor apartment. We fail to see the significance of this distinction. In any event, while Officer Williams testified that the plastic bag was found on "the third floor" of the building, "sitting on the floor," the police report specified that the bag was recovered "from the front door of the third floor apartment," and the motion judge found as fact that the location of the bag "in front of, and not in, the third floor apartment," rendered it "unlikely that the property belonged to the occupants of the apartment." We, of course, defer to such a factual finding and the reasonable inferences drawn therefrom. State v. Elders, 192 N.J. 224, 243-44 (2007). Indeed, nothing in the record contradicts this finding.
Under the circumstances, and considering all relevant factors, we conclude that the plastic bag was "abandoned." Accordingly, defendant lacks standing to challenge the constitutionality of the seizure and search of that property.
Even assuming standing, the seizure of the bag and search of its contents pass constitutional muster. Under the plain view doctrine, a police officer may seize evidence without a warrant when (1) the officer is lawfully in the viewing area; (2) the officer discovers the evidence inadvertently, that is, without intending beforehand to seize it or knowing in advance where it was located; and (3) the incriminating nature of the evidence is immediately apparent. State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). As to the first prong, warrantless entry into a residence may be justified by exigent circumstances. Kentucky v. King, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865, 874-75 (2011). One such exigency is when police officers are in "hot pursuit" of a suspect who they have probable cause to believe has just committed a serious crime or is in possession of evidence that may be destroyed. United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300, 305 (1976); State v. Hutchins, 116 N.J. 457, 464 (App. Div. 1989); State v. Jefferson, 413 N.J. Super. 344, 356-57 (App. Div. 2010). Of course, the "question whether hot pursuit by police justifies a warrantless entry depends on the attendant circumstances." State v. Bolte, 115 N.J. 579, 597, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989). A relevant consideration is whether there is an ongoing threat to public safety. Id. at 597-98; see also State v. DiLoreto, 180 N.J. 264, 281-82 (2004).
In general, even outside the context of hot pursuit, "exigent circumstances will be present when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." Johnson, supra, 193 N.J. at 553; see also State v. Cassidy, 179 N.J. 150, 160 (2004) (stating "circumstances have been found to be exigent when they preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both" (internal quotation marks omitted)). On this score, "[a] deadly weapon poses a special threat to both the public and police, and its presence is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search." State v. Wilson, 362 N.J. Super. 319, 333 (App. Div.), certif. denied, 178 N.J. 250 (2003).
Other factors courts consider include "the urgency of the situation, the time it will take to secure a warrant, the seriousness of the crime under investigation, and the threat that evidence will be destroyed or lost or that the physical well-being of people will be endangered unless immediate action is taken." Johnson, supra, 193 N.J. at 552-53.
In State v. Alston, 88 N.J. 211 (1981), two police officers pulled over a speeding vehicle whose occupants appeared to be moving around as if attempting to conceal something. Id. at 216. One of the officers saw shotgun shells in the glove compartment after the driver opened it to retrieve vehicle credentials, and while grabbing the shells, the officer saw an opaque plastic bag covering what appeared to be a long, thin object protruding from under the front passenger seat. The officer felt the bag, and because it felt like a gun, he opened it and discovered a sawed-off shotgun. Id. at 216-17. The Court upheld the officers' subsequent warrantless search of the vehicle because of "the potential danger posed by" additional weapons that the officers had probable cause to believe were concealed in the passenger compartment. Id. at 234.
Here, police entered the multi-unit dwelling in immediate pursuit of, among others, a fleeing armed suspect, after being summoned to that location on a report of "several males . . . with handguns." Having confirmed that report at least with respect to Mitchell, who was seen grabbing the front of his pants where a handgun was visible, the officers ordered the three males to stop. Instead of obeying the command, they fled into the building they had just exited, slammed the door on one of the officers, and ran up the stairs. Under the circumstances, the police were justified in pursuing the fleeing suspects, one of whom was visibly armed with a gun and another seen holding a bag, up to the third floor, where Officer Fletcher observed Mitchell kick open a door to an apartment and throw the gun he was carrying behind a couch. See, e.g., State v. Jones, 143 N.J. 4, 14 (1995); Bolte, supra, 115 N.J. at 597-98; State v. Josey, 290 N.J. Super. 17, 24-25 (App. Div.), certif. denied, 146 N.J. 497 (1996).
Furthermore, after Detective Fletcher apprehended Mitchell in the third floor apartment, Detective Williams had reason to canvass the area. Police may conduct a "protective sweep" of a premises after making a lawful arrest, consisting of a "cursory inspection of those spaces where a person may be found" which may last "no longer than is necessary to dispel the reasonable suspicion of danger." Maryland v. Buie, 494 U.S. 325, 335-336, 110 S. Ct. 1093, 1099, 108 L. Ed. 2d 276, 287 (1990); State v. Davila, 203 N.J. 97, 125-26 (2010). In the instant matter, at the time of the sweep, the officers still had not accounted for one of the suspects who fled into the apartment building, nor had they found the gun. Therefore, it was reasonable for Officer Williams to believe that danger still lurked, justifying a protective sweep.
Consequently, Officer Williams was lawfully in an area from which he observed in "plain view" the plastic bag that defendant was seen holding only moments earlier. See State v. Johnson, 171 N.J. 192, 220 (2002). Moreover, given the immediacy of the situation, the discovery of the bag was obviously inadvertent since the police did not know in advance of their arrival that drugs would be present at the scene. Ibid.; see also Bruzzese, supra, 94 N.J. at 236-37. And lastly, in view of all the circumstances, there was an objectively reasonable belief that the bag ultimately discovered contained contraband that defendant was so clearly desirous of disclaiming. Thus, under the "plain view" exception to the warrant requirement, the police, who were lawfully in a position to make the plain view observation, were permitted to seize the bag and search its contents.
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