January 22, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD W. REED, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-05-0918.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 11, 2012 -
Before Judges Espinosa and Koblitz.
Defendant appeals from the denial of his motion to suppress evidence and from his sentence.
Officers O'Neill and Lasko of the Monmouth County Sheriff's Office Fugitive Warrant Section had a warrant for defendant's arrest and went to his apartment on February 12, 2010 to arrest him. As they approached the entrance to the apartment, O'Neill was able to see the interior of the apartment and observed defendant, along with "multiple subjects" inside.
O'Neill testified at the suppression hearing that the steps leading to the door were "completely covered in ice." He knocked on the door. Defendant answered the door and stepped onto the threshold. He was wearing a sweatshirt and pants. O'Neill stepped into the house and immediately placed defendant in handcuffs. O'Neill could see into the kitchen area, where he observed four people and two baggies of a green leafy substance on the table. O'Neill testified that, based on his training and experience, he believed the green leafy substance to be marijuana and also stated he smelled the burnt odor of marijuana.
Lasko came into the apartment behind O'Neill. He checked the area behind them and advised O'Neill that he observed contraband in one of the bedrooms. O'Neill went to the bedroom, where he saw boxes of plastic storage bags, a black digital scale marked ZX-600, among other items. The face of a drawer was hanging off, allowing O'Neill to see a plastic baggie containing a green vegetative substance. O'Neill testified that the amount seized from the drawer was less than fifty grams of marijuana. In addition, O'Neill observed a gray Sentry safe with a numbered keypad.
O'Neill asked defendant for his consent to search the house. Defendant stated they "could search the room but not the safe." O'Neill called the Keyport police to assist. An officer arrived with a dog to sniff the inside of the house. The dog "alerted" to the safe. The officers obtained a search warrant for the safe the next day. A quantity of marijuana in excess of fifty grams was seized from the safe.
Defendant was indicted for fourth-degree unlawful possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count one), and third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C: 35-5(b)(11) (count two). After his motion to suppress the marijuana seized from his apartment was denied, he pled guilty to count two pursuant to a plea agreement. He was sentenced to two years probation.
In this appeal, defendant raises the following issues for our consideration:
THE WARRANTLESS SEARCH OF DEFENDANT'S APARTMENT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHTS.
THE SENTENCE IMPOSED BY THE COURT WAS MANIFESTLY EXCESSIVE.
After reviewing these arguments in light of the record and the applicable legal principles, we are not persuaded that either argument has merit and we are further satisfied that defendant's challenge to his sentence lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted) (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Further, we "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id. at 244 (citing State v. Johnson, 42 N.J. 146, 161 (1964)). Thus, an appellate court "should not disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Ibid. (quoting Johnson, supra, 42 N.J. at 162). The findings are properly disturbed on appeal only when a trial court's findings "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162).
Defendant concedes that the arrest warrant executed here was valid.*fn1 He argues, however, that O'Neill's entry into the apartment was unlawful because defendant was "available for arrest" when he opened the door.
O'Neill testified that he stepped inside the apartment to effect the arrest because the steps were icy and he did not want to jeopardize the safety of himself, his partner, or defendant in executing the arrest on the icy steps. While we agree with defendant that there is no "bad weather" exception to the warrant requirement, we cannot agree that it was unreasonable for O'Neill to step inside the apartment under the circumstances.
"An arrest warrant 'implicitly carries with it the limited authority to enter a dwelling' where the suspect lives when there is reason to believe the suspect is inside." State v. Brown, 205 N.J. 133, 145 (2011) (quoting Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388, 63 L. Ed. 2d 639, 661 (1980)); see also State v. Jones, 143 N.J. 4, 13 (1995). The motion judge observed that to effect the arrest at the doorway, the officers would "have been required to take the Defendant away without a coat or shoes[.]" If, on the other hand, defendant was permitted to return to the interior of the apartment to acquire necessary outerwear to leave under arrest, O'Neill would have been permitted to remain with him when he retreated for such purpose following his arrest. See State v. Bruzzese, 94 N.J. 210, 230 (1983).
Defendant argues that the lawfulness of the officer's initial entry is the "crux" of this case. We agree. Once standing inside the apartment, O'Neill observed marijuana on the kitchen table in plain view. See State v. Johnson, 171 N.J. 192, 206 (2002); Bruzzese, supra, 94 N.J. at 236.
As O'Neill remained in the living area, Lasko conducted a limited "protective sweep" of the bedroom behind the two officers. In State v. Davila, 203 N.J. 97 (2010), the Supreme Court established the criteria required for a lawful "protective sweep":
[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.]
Defendant's challenge addresses the first of these criteria, i.e., that the officers were not in the apartment lawfully. As noted, we agree with the motion judge that the officers were lawfully present to execute the arrest warrant. As to the remaining criteria, the motion judge stated:
Once in the apartment, the officers . . . encountered four additional people who appeared to be in possession of marijuana. The layout of the apartment was such that one bedroom was situated [in] the kitchen area where the four people were seated, and another was off the right in the area behind the officers.
Although there was no testimony that the officers had information that a specific dangerous individual might be hidden in the apartment, the configuration of the apartment was such that a person might emerge from the bedroom out of the view of the officers, and pose . . . danger to officer safety.
This is particularly true whereas here, the officers' attention was directed not only to the Defendant who is the subject of the arrest warrant, but to four other people in the apartment.
Under these circumstances, the Court finds that it was reasonable for Officer Lasko to perform a brief protective sweep of the bedroom to the right from which another person could appear behind the officers and out of their sight line.
The limited scope and intent of the protective sweep was made clear through Officer O'Neill's testimony when he responded to Counsel's question why the officers did not search a second bedroom which was across from the point where the officers entered.
As O'Neill explained, quote, we could have seen someone coming out of that bedroom, the other bedroom was behind where I was standing, end quote.
The officer's protective sweep was therefore consistent with Buie*fn2 and Davila. It was limited to an area immediately adjacent to the living room where the arrest warrant was executed, was brief in time and scope, and constituted a reasonable means of ensuring officer safety under the circumstances.
This was not a general sweep of the apartment as occurred in Davila for the purpose of simply . . . determining whether anyone else might be in the home. It was specifically directed to an area that might constitute a danger to the officers if a person were to emerge from behind.
These findings had adequate support in the record.
The motion judge also rejected defendant's argument that he had not voluntarily consented to a search of his bedroom. The judge observed that it was undisputed that defendant told the officers they could search his room but could not search the safe. The judge reasoned, "By knowingly and intentionally withholding consent for a search of the safe, Defendant clearly evidenced his understanding of his right to refuse, and exercised that right in a way he believed to be to his best advantage." See State v. Johnson, 68 N.J. 349 (1975). We agree.
Accordingly, we are satisfied that defendant's motion to suppress was properly denied.