NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-08-1320.
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Kristen Brewer, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent Stefan Mitchell (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).
Before Judges Alvarez and St. John.
The State on leave granted appeals the July 24, 2012 order granting defendants Stefan Mitchell and James Freeman's motions to suppress certain evidence seized from Mitchell's home. After reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm.
We briefly summarize the relevant procedural history and the facts based on the record before us.
On August 2, 2011, defendants were indicted under Indictment No. 11-08-1320 for various drug and weapons offenses. On January 23, 2012, Mitchell filed a motion to suppress all physical evidence as a result of an unlawful search. Freeman joined the motion and asserted that a separate unlawful search occurred stemming from the same facts.
The Jersey City Police Department had been monitoring defendants for alleged drug related offenses, which included distributing narcotics from Mitchell's apartment. On April 2, 2011, Freeman was arrested and a bottle of Oxycodone was found in his possession. Based upon the discovery of Oxycodone, the police allege they began to prepare an affidavit to secure a search warrant for Mitchell's dwelling. However, before the search warrant was issued, Mitchell exited his dwelling at approximately 9:00 p.m. and was taken into custody on the basis of outstanding open warrants for his arrest. Mitchell informed the arresting officers that his eight year old autistic son was alone in the house. The officers contacted Mitchel's sister, Dawn Hoffman, to come and take custody of the child.
At the suppression hearing, the State argued that Hoffman arrived at Mitchell's home and was escorted inside to retrieve clothes for the child while the remaining officers waited outside and secured the area until a search warrant was obtained. The warrant was signed and dated on April 3, 2011, at 12:03 a.m. Once the warrant was issued, the officers entered and searched the home finding a loaded handgun and twenty-four glass vials of cocaine under the kitchen sink.
Mitchell submitted that the officers searched his residence prior to receiving the warrant. Hoffman, a corrections officer, testified that when she went into Mitchell's dwelling to retrieve clothes for his son, she saw a police officer looking around. She did not see him opening drawers but "he was he was looking around before I got in there because when I walked inside I saw him moving around looking around." Hoffman added that ...