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State of New Jersey v. Rashad Walker A/K/A Derrick Moss

April 10, 2013

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
RASHAD WALKER A/K/A DERRICK MOSS, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Judge A. A. Rodriguez

New Jersey Supreme Court

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)

State v. Rashad Walker a/k/a Derrick Moss

(A-49-11) (068742)

Argued October 11, 2012 --

Decided April 10, 2013

RODRIGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers the warrantless entry into defendant Rashad Walker's apartment and whether police officers, who saw defendant smoking a marijuana cigarette during a brief interaction with him, had probable cause to arrest the defendant and seize evidence observed in plain view inside his apartment.

On March 29, 2008, acting on a tip from a reliable confidential informant that an African-American male was selling controlled dangerous substances (CDS) from an apartment in a Newark public housing project, Detective James Cosgrove and fellow undercover officers went to defendant's apartment. The officers intended to buy CDS from defendant in order to corroborate the tip. Officer James Rios, who served as the buyer, knocked at the apartment door. An African-American man, later identified as defendant, answered it. He was smoking a hand-rolled cigarette. Cosgrove immediately recognized the burning smell of marijuana. When defendant saw that one of the officers had a police badge around his neck, he threw the cigarette into his apartment, retreated, and attempted to slam the door shut. Rios stopped the door from closing, followed defendant into the apartment, and arrested him. According to Cosgrove, he and three officers entered the apartment to prevent defendant from fleeing, destroying evidence, retrieving a weapon, or in some other way impeding his arrest for possession of marijuana. In plain view in the living room, the officers saw a plastic bag containing marijuana, envelopes of heroin stamped "Horsepower," a plastic bag containing cocaine, a marijuana cigarette, a dark-colored plate with cocaine residue on it, a razor blade, and a digital scale.

Defendant sought to suppress evidence. The trial court denied the motion, concluding that probable cause to arrest defendant arose at the moment defendant opened the door smoking a marijuana cigarette, a disorderly persons offense. Defendant then entered a guilty plea to two counts of third-degree possession of CDS with intent to distribute and one count of third-degree possession of CDS with intent to distribute within 500 feet of public housing. The judge imposed three six-year terms, subject to a three-year period of parole ineligibility, to be served concurrently. Defendant appealed the denial of his motion to suppress and his sentence. The Appellate Division reversed the denial of defendant's motion to suppress, holding that, as a matter of law, the circumstances did not provide a sufficient basis for the officers' entry into defendant's home. The Appellate Division vacated defendant's conviction and remanded the matter to the Law Division.

The Supreme Court granted the State's petition for certification.

HELD: Under the New Jersey and federal constitutions, probable cause and exigent circumstances justified the warrantless entry into defendant's apartment and the seizure of the marijuana cigarette and all the CDS found there.

1. The warrant requirement is strictly applied to physical entry into a home because the primary goal of the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution is to protect individuals from unreasonable home intrusions. Accordingly, a warrantless arrest in an individual's home is " 'presumptively unreasonable.' " State v. Hutchins, 116 N.J. 457, 463 (1989) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)). Nonetheless, the Court has "adopted the principle that 'exigent circumstances' in conjunction with probable cause may excuse police from compliance with the warrant requirement." State v. Bolte, 115 N.J. 579, 585-86 (1989). The Court must determine whether information provided by the confidential source, standing alone, is sufficient to establish probable cause. If not, the Court must determine whether the independent observations made by the police officers upon their arrival at defendant's apartment, together with the informant's information, give rise to probable cause. The mere fact that the informant was reliable in the past cannot itself establish probable cause. In this case, the informant's tip lacked the requisite basis of knowledge to provide probable cause to believe defendant possessed CDS with intent to distribute. Nevertheless, the officers observed defendant smoking a marijuana cigarette in violation of N.J.S.A. 2C:35-10(a)(4) in their presence. At that point, the officers had probable cause to arrest defendant. But despite the existence of probable cause to arrest defendant, a showing of exigent circumstances was required in order to comply with the Fourth Amendment. In making the exigent circumstances determination, courts consider many factors, including the gravity of the underlying offense for which the arrest is being made and the reasonable belief that evidence might be lost or destroyed. Therefore, in order to justify the officers' warrantless home arrest here, the State must establish: (1) the existence of exigent circumstances, and (2) that those exigent circumstances were not police-created. (pp. 7-17)

2. Although the information contained in the tip was uncorroborated, by the time the officers knocked at the door of defendant's apartment, subsequent events, created by defendant's own actions, established probable cause and exigent circumstances which justified an entry into defendant's apartment. Thus, the warrantless seizure of the marijuana cigarette and all the CDS found in defendant's apartment was proper and permissible under the New Jersey and federal constitutions. Although the underlying offense here, possession of marijuana, is a disorderly persons offense, the circumstances indicate that the officers' warrantless entry into defendant's home was objectively reasonable. A limited entry was necessary to arrest defendant for the disorderly persons offense and to retrieve the marijuana cigarette. After entering, the officers saw in the living room CDS and other contraband in plain view. These items were subject to seizure as well. (pp. 17-22)

The judgment of the Appellate Division is REVERSED, defendant's conviction is REINSTATED, and the matter is REMANDED to the Appellate Division for consideration of the sentencing argument raised by defendant.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON join in JUDGE RODRIGUEZ's opinion. JUDGE CUFF (temporarily assigned) did not participate.

Argued October 11, 2012 --

JUDGE A. A. RODRIGUEZ (temporarily assigned) delivered the opinion of the Court.

This criminal appeal arises from a warrantless entry into defendant Rashad Walker's apartment, by undercover police officers who saw defendant smoking a marijuana cigarette during a brief interaction with him, while the apartment door was open. Defendant's motion to suppress evidence of possession of cocaine, heroin, and marijuana was denied. He entered into a plea agreement with the State to plead guilty to two counts of third-degree possession of controlled dangerous substances (CDS) with the intent to distribute, N.J.S.A. 2C:35-5a(1), and one count of third-degree possession of CDS with the intent to distribute while within 500 feet of public housing, N.J.S.A. 2C:35-7.1. The judge imposed three six-year extended terms, subject to a three-year period of parole ineligibility, to be served concurrently.

Defendant appealed the denial of his motion to suppress and his sentence. The Appellate Division reversed the denial of defendant's motion to suppress, vacated the conviction, and remanded the matter to the Law Division for further proceedings. The appellate panel did not address the sentence. On December 8, 2011, we granted the State's petition for certification. We now reverse.

I.

At the hearing on the motion to suppress, Newark Police Detective James Cosgrove, of the Narcotics Enforcement Team, testified that in the mid-morning of March 29, 2008, he received a tip from a confidential source. The informant had provided useful information to the Newark Police Department on at least ten occasions. The tip was that an African-American male was selling marijuana, cocaine, and heroin from a specified apartment in the Riverview Court public housing project in Newark. Around 11:00 p.m., Cosgrove and fellow officers Javier Rivera, Christopher Sigara, and ...


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