August 13, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LAMAR GRESHAM, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 14, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 09-04-0903 and 10-02-0343.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).
Before Judges Reisner and Hayden.
Following the denial of his motion to suppress evidence, defendant Lamar Gresham pled guilty, in Indictment No. 09-04-0903 (Indictment I), to third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5a(1), and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Defendant also pled guilty on another indictment, No. 10-02-0343 (Indictment II), to first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1). Defendant reserved the right to appeal the denial of his suppression motion. The trial judge sentenced defendant to eight years imprisonment with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2, for his attempted murder conviction, and concurrent sentences of six years imprisonment with three years of parole ineligibility on the weapons conviction and four years on the possession with intent to distribute. The judge awarded defendant 974 days of jail credit to be applied only to the conviction from Indictment I.
On appeal, defendant argues that:
POINT I: THE TRIAL JUDGE ERRED IN FAILING TO GRANT THE DEFENDANT'S MOTION TO SUPPRESS UNDER THE CONTROLLING CASE OF STATE V. BOLTE.
POINT II: DEFENDANT SHOULD BE GIVEN 974 DAYS OF JAIL CREDIT ON INDICTMENT NO. 10-02-0343 PURSUANT TO STATE V. HERNANDEZ.
Having considered defendant's arguments in light of the applicable legal principles, we affirm defendant's conviction substantially for the reasons set forth by the trial judge in his comprehensive and cogent opinion, and find that the judge properly denied defendant's motion to suppress. However, we remand to the trial judge for calculation of the correct number of jail credits to be credited to the Indictment II conviction, which the State concedes the judge improperly credited solely to the Indictment I conviction.
We discern the following facts from the record of the motion to suppress the drugs and weapon. On January 8, 2009, Detective Michael Ruzzo of the Atlantic City Police Department observed what he believed, based upon his extensive experience as a police officer, to be a hand-to-hand drug transaction in progress in front of a multi-story apartment building in a high drug crime area. Detective Ruzzo walked around the apartment building to the back entrance of its breezeway, and Detective Paul Petinga of the Atlantic City Police Department, who was in plain clothes and wore a visible police badge, approached defendant from the front entrance. When defendant saw Petinga he "took off running." Petinga pursued defendant on foot, yelling "police, stop, " but defendant ran through the courtyard and up the stairs to the second floor of the apartment complex. Petinga observed defendant run into an apartment door with his shoulder, turn the door knob, and shut the door.
A few minutes later, defendant opened the door, looked out, and then closed the door a couple of times before he stepped out into the hallway. Petinga, who had been waiting on the third-floor landing out of view, ran toward defendant and ordered him to stop, but defendant ran back into the apartment. Petinga pursued defendant and observed him throw a black object into an open closet located right behind the apartment door. Defendant continued running into a bedroom and jumped, face down, onto the bed, where, after a brief struggle, he was apprehended. The officers found a handgun on the bed, a black neoprene mask on the floor of the closet that contained 301 bags of heroin and $523, and a white jar that contained eighty-six grams of marijuana.
The detectives notified building management that the lock to the door to the apartment had been damaged and needed to be secured. The police learned that Pearlie Marrow, then sixty-two years old, resided in the apartment. Marrow later gave a statement to the police that she lived alone, locked the door when she left her apartment, did not have drugs or weapons in her apartment, and had not given defendant, who she said she did not know, permission to enter her apartment. Marrow then signed a complaint against defendant for burglary.
Defendant, who was then twenty years old, testified at the hearing that he had a friendly relationship with Marrow, whom he called "Auntie, " and often went to her house to play video games, smoke, and call girls. Defendant admitted he did not reside with Marrow, but claimed that Marrow had given him a key to her apartment, and that he had permission to be there on the date of his arrest. Haley Smith, defendant's friend, confirmed that she had on occasion accompanied defendant to Marrow's apartment.
Defendant moved to suppress the evidence found in the apartment. The judge denied the motion, finding the testifying detectives credible and defendant's testimony that he was permitted to enter the apartment in Marrow's absence "completely incredible." The judge found that defendant had no standing to challenge the search and seizure of the controlled dangerous substances because he had abandoned those items, and defendant could not invoke the constitutional protections against unreasonable searches and seizures regarding the seizure of the weapon, because he had no expectation of privacy in the apartment into which he had unlawfully and forcibly gained entry. In the alternative, the judge found that even if defendant had a legitimate expectation of privacy in the apartment, the detective's warrantless entry was constitutionally permissible because there existed both probable cause to arrest defendant and exigent circumstances.
Our review of a trial judge's decision on a suppression motion is deferential. State v. Rockford, 213 N.J. 424, 440 (2013); State v. Robinson, 200 N.J. 1, 15 (2009). 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 citations omitted). "To the extent that the trial court's determination rests upon a legal conclusion, we conduct a de novo, plenary review." Rockford, supra, 213 N.J. at 440.
The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution "protect citizens against unreasonable police searches and seizures by requiring warrants issued upon probable cause." State v. Walker, 213 N.J. 281, 289 (2013) (quoting State v. Johnson, 171 N.J. 192, 205 (2002)). "New Jersey's constitution provides greater protection to criminal defendants than the Fourth Amendment." Ibid. "A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000). The warrant requirement is strictly applied to entry into the home because the primary goal of the Federal and State constitutional provisions "is to protect individuals from unreasonable home intrusions." Walker, supra, 213 N.J. at 289. See also United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764 (1972) (physical entry of home is the "chief evil against which the wording of the Fourth Amendment is directed"). "Accordingly, a warrantless arrest in an individual's home is 'presumptively unreasonable.'" Walker, supra, 213 N.J. at 289 (quoting State v. Hutchins, 116 N.J. 457, 463 (1989)). Nonetheless, "'exigent circumstances' in conjunction with probable cause may excuse police from compliance with the warrant requirement." Ibid. (quoting Bolte, supra, 115 N.J. at 585-86).
First, we agree that defendant lacked standing to challenge the constitutionality of the search and seizure of the controlled dangerous substances. "Under Article I, Paragraph 7 of the New Jersey Constitution, a defendant has automatic 'standing to move to suppress evidence from a claimed unreasonable search or seizure if he has a proprietary, possessory or participatory interest in either the place searched or the property seized.'" State v. Carvajal, 202 N.J. 214, 222 (2010) (quoting State v. Johnson, 193 N.J. 528, 541 (2008)) (internal quotation marks omitted). "[G]enerally, a defendant charged with a possessory offense, such as possession of a controlled dangerous substance with intent to distribute, has standing to challenge the seizure of the evidence that constitutes the possession element of the offense." Id. at 223. Under the "narrow exception" to the automatic standing rule, a defendant has no "standing to object to the search or seizure of abandoned property." Johnson, supra, 193 N.J. at 549. "For the 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." Ibid. "The State bears the burden of proving 'by a preponderance of the evidence that the defendant abandoned the property . . . .'" Carvajal, supra, 202 N.J. at 223-24 (quoting Johnson, supra, 193 N.J. at 548 n.4).
Applying these principles to the facts in this case, we are satisfied that the trial judge's finding that defendant abandoned the black mask containing heroin and the jar of marijuana is supported by sufficient credible evidence, and thus, defendant lacks standing to challenge the search or seizure of those items. As the trial judge found, defendant voluntarily discarded the items as he fled into the apartment, and there was no other apparent or known owner of the items, as the sixty-two-year-old tenant denied having drugs in her home.
Although defendant had standing to challenge the search and seizure of the weapon, we agree with the trial judge that defendant could not invoke the constitutional protections against unreasonable searches and seizures because defendant lacked a constitutionally-protected privacy interest in the apartment to which he unlawfully and forcibly gained entry by running into the door with sufficient force to break the lock.
"To invoke the protections of the Fourth Amendment and its New Jersey counterpart, Article I, Paragraph 7, defendant must show that a reasonable or legitimate expectation of privacy was trammeled by government authorities." State v. Evers, 175 N.J. 355, 368-69 (2003). "Expectations of privacy are established by general social norms." State v. Hempele, 120 N.J. 182, 200 (1990) (quoting Robbins v. California, 453 U.S. 420, 428, 101 S.Ct. 2841, 2847, 69 L.Ed.2d 744, 751 (1981) (plurality opinion), overruled on other grounds by United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)).
No "general social norm" would allow an expectation of privacy on the part of an individual who unlawfully forced his way into an apartment. See State v. Smith, 291 N.J.Super. 245, 261-62 (App. Div. 1996) (defendant charged with drug possession lacked protected privacy interest in apartment into which he unlawfully and forcibly gained entry), rev'd on other grounds, 155 N.J. 83 (1998), cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed.2d 480 (1998); State v. Arias, 283 N.J.Super. 269, 277-81 (Law Div. 1992) (defendant had no reasonable expectation of privacy in ammunition left in home that he had commandeered at gunpoint).
Further, even if defendant had an expectation of privacy in the apartment, we are satisfied that the trial judge's findings, that the police had probable cause to arrest defendant and that there existed exigent circumstances which were not police-created, justified the detective's warrantless entry into the apartment. We agree that the detective's observation of what he believed, based on his experience, to be an in-progress hand-to-hand drug transaction in an area known to be a high crime drug area, gave rise to a reasonable suspicion of criminal activity sufficient to justify an investigatory stop by the detectives. See State v. Shaw, 213 N.J. 398, 410 (2012). Subsequent events created by defendant's own actions in fleeing from the police, despite being ordered to stop, and his forced entry into the apartment established probable cause to arrest. Further, defendant's actions in entering the hallway and, upon seeing the detective, running back into the apartment and discarding a black object, established sufficient exigent circumstances to justify the detective's warrantless entry into the apartment for the limited purpose of apprehending defendant. See Walker, supra, 213 N.J. at 292 (exigent circumstances include the reasonable belief that evidence was about to be lost, destroyed or removed from the scene). In that regard, the case cited by defendant, Bolte, supra, 115 N.J. at 582-83, which involved a traffic offense and no exigent circumstances, is readily distinguishable. Accordingly, we affirm the denial of defendant's motion to suppress.
Defendant also contends that under Hernandez, supra, 208 N.J. 24, he is entitled to have the jail credits he received for Indictment I also credited to Indictment II. The State concedes that Hernandez applies here but disagrees about the number of days to be credited. We remand to the trial judge for the appropriate calculation of jail credits. Id. at 50-51.
Affirmed as to the conviction, reversed and remanded as to jail credits only.