July 11, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOSE DELGADO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 30, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 12-011.
David J. Foley argued the cause for appellant.
Caitlin J. Sidley, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Sidley, of counsel and on the brief).
Before Axelrad and Nugent, Judges.
Defendant Jose Delgado appeals his conviction following a trial de novo in the Law Division of driving while intoxicated, N.J.S.A. 39:4-50, and leaving the scene of an accident, N.J.S.A. 39:4-129. Having considered defendant's arguments in light of the record and controlling law, we affirm.
The State presented the following proofs at the municipal court trial. Defendant was staying with his girlfriend in her apartment in Union Beach on December 28, 2010. That night, at approximately 8:00, he backed his 1992 Dodge pickup truck with its extended trailer hitch into the front of a maroon Mitsubishi Eclipse, severely damaging its front end. The Eclipse was owned by defendant's neighbor, Jose Hernandez.
Although defendant disputed that he was intoxicated when he backed into Hernandez's car, the State presented five witnesses who testified to the contrary. The first was Hernandez's upstairs tenant, Shauna Hemingway, who went outside after hearing a "big loud noise." She saw defendant's pickup truck across the street in a pizzeria parking lot, its brake lights on, its engine running. Defendant got out of the truck, staggered across the street toward her, and started yelling at her when he saw her on the phone. She said she was on the phone with the police and he had just hit Hernandez's car. Defendant denied it and said, "[m]y brother did." Defendant then went into his girlfriend's house.
Hernandez went outside to look at his car after Hemingway's son telephoned him. The car was flattened in the front; there was a lot of damage. Hernandez watched as defendant staggered while crossing the street after parking his pickup truck. Hernandez heard defendant ask Hemingway why she was on the phone, heard defendant mumble something, and saw defendant go into his girlfriend's apartment. Hernandez thought defendant "wasn't all there, " heard defendant slur his words, and concluded that defendant had been drinking.
The first police officer to arrive at the scene, Patrolwoman Deborah A. Trembley, saw that Hernandez's car was "severely damaged, front end damage, hood." As the officer conducted her preliminary investigation, Carlos Rodriguez, the EMS Chief for Union Beach, who was also a detective with the Union County Prosecutor's office, arrived, followed by Patrolman Gabriel Farese. Detective Rodriguez, wearing his EMS uniform, and Patrolman Farese entered the building where defendant's girlfriend lived, opened the door to the stairway that led to the second floor, and ascended the stairway. When Rodriguez reached the top of the stairs the apartment door was slightly ajar. He knocked, announced himself, and defendant and a lady with brown hair opened the door all the way. Rodriguez asked if anyone was hurt, explaining that he was "here for an accident[.]" The lady told him she was not involved. Defendant approached him "with some slurred speech, a little bit of staggering." Detective Rodriguez asked defendant if he was a diabetic, had hit his head, or if there was anything wrong. When defendant responded no, Detective Rodriguez said, "why don't you come downstairs, the police want to speak to you." Defendant followed him downstairs. Once outside, defendant asked Hernandez in Spanish, "why did you have to call the police, we could have taken care of this ourselves."
Downstairs, in front of the building, Officer Trembley asked defendant for his registration. According to her, he was slurring his words and was incoherent, boisterous, and antagonistic. Defendant said he could not get his insurance card and registration because his keys were upstairs. The officer retrieved the keys from defendant's girlfriend and then returned to the street where she and defendant walked to his pickup truck. Defendant fumbled with the keys so badly that he could not open the door. After Officer Trembley opened the door, defendant was unable to produce his credentials. Instead, he obtained and showed the officer photographs of people.
Patrolwoman Trembley smelled a strong odor of alcohol on defendant's breath. His eyes were bloodshot and he was unable to walk normally. The police transported him to headquarters where Officer Trembley had him perform field sobriety tests, which he failed. Officer Trembley concluded from the totality of her observations of defendant that he was intoxicated.
Patrolman Gabriel Farese, who also responded to the scene, corroborated Patrolwoman Trembley's testimony. When Patrolman Farese drove defendant to police headquarters, defendant denied that he had been driving. At headquarters, the officer read defendant his Miranda rights from a "Union Beach Police Department Driving Under Influence Interview Form, " and also read the thirty questions that appear on that form. Defendant responded that he understood his Miranda rights and was willing to speak to the police. In response to questions read from the form, defendant denied operating a motor vehicle and stated he was "chilling out with [his] girlfriend" during the previous three hours. He claimed he had two glasses of wine at his girlfriend's house at 9:00.
Defendant testified and denied that he drank any alcohol before parking his truck at the pizzeria and going to his girlfriend's apartment to have dinner. According to defendant, due to a heavy snowfall the day before, he had helped someone plow snow the previous night and throughout the entire day of December 28. After work, when he arrived at his girlfriend's, defendant moved his truck from her driveway, where he was parking in someone else's spot, to the pizzeria parking lot. He was unaware that he had hit another car.
When he returned to his girlfriend's house after moving his truck, defendant ate dinner, drank a couple of glasses of wine, and had two or three shots of tequila. While he was still at the table, police came up from the first door, reached the second floor, and knocked on the door near the kitchen. When defendant and his girlfriend opened the door in response to the knocking, the police told him he had hit another car. They told him to come out, but did not tell him he had a right to remain inside. He went with them, "because [he] didn't know what they wanted."
Defendant was taken to police headquarters. He testified that he had undergone three surgeries for his left knee, and that he had glaucoma in his right eye. He denied that Officer Trembley asked him to do any balancing tests. He acknowledged that he was given his Miranda warnings and understood he had the right to remain silent; but denied that anyone went over any other questions with him. On cross-examination, defendant acknowledged that as he was walking to his girlfriend's home after parking his truck, Hemingway told him he had hit a car. He told her he did not know what she was talking about.
Defendant presented the testimony of his girlfriend's daughter, who ate dinner with him on December 28. She testified defendant did not appear intoxicated when he came to the apartment after finishing work, and that she understood his speech. During dinner he drank a glass or two of a wine and a couple of shots of tequila. Defendant was in the apartment for approximately ten minutes before the police arrived.
The municipal prosecutor called defendant's girlfriend to testify as a rebuttal witness. According to her, defendant was home for about fifteen or twenty minutes on December 28 before the police arrived. They pounded on the door and asked defendant to come downstairs. Later, at police headquarters, she yelled at defendant. She could not recall exactly what she said. According to Officer Farese, who heard her, she told defendant that he was drunk when he came upstairs and that she was not going to lie for him.
The police charged defendant with driving while intoxicated, N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; leaving the scene of an accident, N.J.S.A. 39:4-129; and failure to report an accident, N.J.S.A. 39:4-130. Following the municipal court trial, the judge denied defendant's motion to dismiss the charges against him. Defendant had argued that the officers had illegally entered his girlfriend's apartment to take him into custody.
The judge believed the testimony of the police officers, Hernandez and Hemingway, but disbelieved defendant and his girlfriend's daughter. Based upon those credibility determinations, the judge convicted defendant of driving while intoxicated and leaving the scene of an accident and acquitted him of reckless driving and failing to report an accident. The judge sentenced defendant for driving while intoxicated to a six-month prison term, loss of driving privileges for ten years, and twelve hours in an intoxicated driver resource center. The judge also fined defendant $1006 and imposed appropriate assessments and surcharges. On the charge of leaving the scene of the accident, the judge fined defendant and assessed court costs. Defendant appealed to the Law Division.
Defendant's trial de novo was conducted by Judge Lisa Thorton who recounted comprehensively the procedural history and municipal court testimony, applied the correct standard of review, and thoroughly analyzed defendant's arguments. Judge Thorton determined that defendant was not impermissibly seized when the police knocked on his girlfriend's door and asked him to accompany them outside of his girlfriend's apartment. The judge concluded that the police were not legally required to tell defendant he had the right not to accompany them.
The judge also concluded "there can be no question that the State presented evidence to support a conviction of under the influence beyond a reasonable doubt." Judge Thorton convicted defendant of that offense as well as leaving the scene of an accident, finding credible the testimony of Hernandez and his tenant, Hemingway, who told defendant, explicitly, that he had hit Hernandez's car. Judge Thorton sentenced defendant to the identical sentence that had been imposed by the municipal court judge. Defendant filed this appeal.
Defendant presents the following arguments for our consideration:
ALL OF THE DEFENDANT'S MOTOR VEHICLE SUMMONSES SHOULD BE DISMISSED BY THE APPELLATE DIVISION ON DE NOVO REVIEW SINCE ALL SALIENT INFORMATION OBTAINED BY THE POLICE OFFICER WAS THE FRUIT OF A CONSENT SEARCH RENDERED INVALID BY THE FAILURE OF THE POLICE OFFICER TO ADVISE JOSE DELGADO THAT HE HAD THE RIGHT TO REFUSE TO OPEN HIS DOOR UPON REQUEST AND ALSO THE FAILURE OF THE OFFICER TO ADVISE THE DEFENDANT THAT HE HAD THE RIGHT TO REFUSE TO EXIT HIS RESIDENCE TO ANSWER QUESTIONS.
THE WARRANTLESS ENTRY INTO DEFENDANT'S DWELLING WAS ILLEGAL AND NOT SUBJECT TO THE FLEEING FELON EXCEPTION TO THE WARRANT REQUIREMENT, REQUIRING SUPPRESSION OF ALL FACTS DERIVING THEREFROM.
THE WARRANTLESS ENTRY INTO DEFENDANT'S DWELLING WAS ILLEGAL AND NOT SUBJECT TO THE EMERGENCY AID EXCEPTION TO THE WARRANT REQUIREMENT.
THE FACTS OF THE PRESENT CASE DO NOT PERMIT A GUILTY FINDING BEYOND A REASONABLE DOUBT ON THE CHARGE OF OPERATING UNDER THE INFLUENCE.
THE DENIAL OF THE MOTION TO SUPPRESS SHOULD BE REVERSED BECAUSE THE STATE ILLEGALLY ENTERED THE PRIVATE, SINGLE-ENTRANCE DOOR OF DEFENDANT'S RESIDENCE WITHOUT A WARRANT WHEN INVESTIGATING A MATTER THAT WAS NOT A FELONY.
THE FACTS OF THE PRESENT CASE DO NOT PERMIT A GUILTY FINDING BEYOND A REASONABLE DOUBT ON THE CHARGE OF LEAVING THE SCENE.
Our review of the findings of fact made by the Law Division is limited. We defer to the trial court's findings when those findings are supported by substantial, credible evidence in the record. State v. Stas, 212 N.J. 37, 49 (2012). We also defer "to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). We owe no deference, however, to either the trial court's interpretation of the law or to its determination of the legal consequences that result from its fact-finding. Stas, supra, 212 N.J. at 49. In an "appeal from a de novo trial on the record, [the appellate court] consider[s] only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336
N.J.Super. 244, 251 (App. Div. 2001) (citation omitted).
In Points I through III and IV defendant argues that all of the summonses issued to defendant should have been dismissed because the police illegally entered his "dwelling" without a warrant and conducted a non-consensual search and seizure. Defendant contends the search and seizure were non-consensual because the police did not inform him that he was not required to accompany them downstairs. Defendant's arguments are factually and legally flawed.
To begin with, the police did not search anything or seize anyone. Detective Rodriguez and Officer Farese entered the building to speak with defendant, who they had reason to believe had recently left the scene of an accident. The police do not act improperly, unlawfully, or unconstitutionally when, without a warrant, they knock on a door or ring a doorbell to ask an occupant questions during an ongoing investigation. State v. Padilla, 321
N.J.Super. 96, 107 (App. Div.), certif. denied, 162 N.J. 198 (1999).
On the other hand, the police may not make a warrantless entry into a suspect's home to arrest him for minor motor vehicle or disorderly persons offenses. State v. Bolte, 115 N.J. 579, 580-81 (1989). Under such circumstances, "less intrusive measures should be used whenever possible including . . . an attempt at a consensual entry or a telephonic warrant." Id. at 598.
Here, defendant argues that when the police entered the downstairs door opening into the stairway, they entered the apartment without a warrant to search for him. He further argues that the police illegally seized him, when once upstairs, they asked him to accompany them without informing him that he had the right to remain in the apartment. We reject defendant's implicit argument that he had reasonable expectation of privacy in the stairwell that the police violated when they entered it without a warrant.
Generally, "'[in] multi-occupancy premises . . . none of the occupants can have a reasonable expectation of privacy in areas that are also used by other occupants.'" State v. Cleveland, 371
N.J.Super. 286, 300-01 (App. Div.) (quoting State v. Johnson, 171 N.J. 192, 209 (2002)), certif. denied, 182 N.J. 148 (2004). "[O]ur courts have not decided whether a common hallway in a two-unit apartment building is within the zone of privacy protected by the Fourth Amendment and the parallel provision of the New Jersey Constitution." State v. Penalber, 386
N.J.Super. 1, 10 (App. Div. 2006). However, in State v. Nunez, 333
N.J.Super. 42, 51 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001), we explained that "whether a door is locked or unlocked [is] a far more reliable predictor of a reasonable expectation of privacy than the size of the building in which one resides."
In Nunez, while executing a "knock and announce" warrant to search an apartment in a three-unit building, the police entered the exterior door providing access to a common hallway without knocking or announcing. Id. at 44-45. Noting that "the record developed at the motion to suppress would not support a finding that both doors to this building were routinely locked and that no one was permitted to enter without the consent of a resident[, ]" we concluded "that the police, who found the rear door unlocked, were under no obligation to knock before proceeding further into this multi-family building." Id. at 51-52.
Similarly, in the case before us, nothing in the motion record suggests that defendant's girlfriend routinely locked the downstairs door opening to the stairway that led to her apartment; or that either she or defendant took any measures to prevent visitors from entering the stairway, ascending it, and knocking on their door. Consequently, the stairway was a "public area that could be used by any occupant or visitor." Cleveland, supra, 371
N.J.Super. at 300. Under those circumstances, we conclude that defendant had no reasonable expectation of privacy in the stairway.
We are also unpersuaded by defendant's argument that he was seized by the police when he agreed with them to go downstairs. Defendant contends that Detective Rodriguez and Patrolman Farese were required to inform him that he did not have to accompany them, and that without such advice, his consent to do so was involuntary. He relies on State v. Johnson, 68 N.J. 349 (1975) for that proposition. However, defendant's reliance is misplaced. Johnson involved the alleged consensual search of a defendant's apartment, not a police request that a suspect accompany them elsewhere. Moreover, in Johnson, the Court explained:
[I]n a non-custodial situation, such as here presented, the police would not necessarily be required to advise the person of his right to refuse to consent to the search. Our decision is only that in such a situation if the State seeks to rely on consent as the basis for the search, it has the burden of demonstrating knowledge on the part of the person involved that he had a choice in the matter.
[Id. at 354.]
Defendant has cited no case that holds that police officers who merely ask a suspect to accompany them to the police station or elsewhere are required to inform the suspect that he has a right to decline their request. We discern no basis for imposing such a requirement in this case. See Padilla, supra, 321
N.J.Super. at 108 (rejecting the defendant's contention that the occupant of a motel room did not validly consent to the entry by police officers because the officers did not advise her of a right to refuse to consent).
Defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only that there was more than ample evidence in the record to support defendant's convictions.