NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 29, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 18-11.
Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, LLC, attorneys; Mr. Loughry, on the briefs).
Bethany L. Deal, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Deal, of counsel and on the brief).
Before Judges Fisher, Alvarez and Waugh.
Defendant Evan Reece was convicted, after a trial de novo in the Law Division, of two disorderly persons offenses: obstructing the administration of law, N.J.S.A. 2C:29-1(a), and resisting arrest, N.J.S.A. 2C:29-2(a). He appeals. We now reverse the former conviction and affirm the latter. As to resisting arrest, defendant was ordered to pay a total of $158 in fines, penalties, and court costs.
We reiterate the proofs relied upon by the Law Division judge. On January 7, 2009, Pemberton Police Department Sergeant Peter Delagarza, a ten-year veteran, was directed to defendant's home to respond to a dropped 9-1-1 call. Upon arrival, the uniformed officer walked around defendant's home, observing three vehicles in the driveway. The time was approximately 4:30 p.m.; it was starting to get dark. Delagarza knocked and asked defendant if he had called for assistance; defendant told the officer that he was home alone and denied making any such call. Defendant's demeanor "was fine and everything seemed pretty normal." Leaving the front door ajar, defendant walked back to a coffee table to retrieve his portable home phone, scrolling through the caller I.D. to see if he could find a 9-1-1 call.
Finding none, he returned to the doorway and handed the phone to Delagarza, who radioed dispatch to confirm the information he had been given. Delagarza and defendant listened while the dispatcher repeated the originating number of the call, defendant's home phone. Delagarza asked defendant how he acquired a small abrasion visible on his right hand, which Delagarza said at the municipal court trial was in the knuckle area, similar to an injury resulting from a thrown punch.
As Delagarza looked past defendant into the interior of the house, he saw nothing unusual or suspicious. Still concerned about the dropped call, Delagarza asked defendant whether he was married. Defendant responded that it was not any of Delagarza's business. At that juncture, Delagarza asked if he could enter the house and look around. Defendant refused.
Delagarza radioed two patrolmen, John Hall and Jason Gant, who were seated in their cars in front of the house, asking them to assist. Once the officers joined him at the doorway, Delagarza again told defendant that they needed to check the house, at which point defendant slammed the door and attempted to lock it. A "scuffle" ensued as the officers pushed the door open.
Delagarza announced that defendant was under arrest. Although they diverged as to the details, all the officers agreed that defendant attempted to shut the door as they were attempting to push their way in. The officers and defendant fell to the ground, defendant positioned on top of Delagarza, whom defendant head-butted during the struggle; he in turn was repeatedly punched in the face. The judge did not believe that defendant went "limp" or "did nothing" as the officers attempted to arrest him. Defendant insisted that as he attempted to shut the door, his feet slipped on the wooden floor and he lost his footing, and the officers then pushed into his house.
Although Delagarza was in uniform, defendant said he was suspicious about the officer's bona fides. Even after hearing the dispatcher's voice confirming the dropped 9-1-1 call came from his line, defendant was still unsure if Delagarza really was a police officer.
In municipal court, defendant was acquitted of simple assault upon Delagarza. He was convicted, however, of disorderly persons simple assault upon Hall, whose knee ligaments were torn during the altercation, N.J.S.A. 2C:12-1(a)(1), and of the obstructing and resisting arrest offenses.
The municipal court judge found the State's witnesses to be credible, while finding defendant not credible. He reached that conclusion because defendant was "a bit too glib, " and had "too many ready explanations for obvious inappropriate behavior, to explain away certain things that had occurred." In support of his conclusion that defendant was not believable, the judge specifically mentioned defendant's doubts that Delagarza was an actual police officer, despite the fact all the officers were in uniform.
The municipal court judge was also troubled by defendant's testimony that he was not resisting arrest:
[B]ut only trying to tell the officers to stop, yet the testimony from the officers was clear that he was trying to pull Sergeant Delagarza's hands away and that he had refused to allow his hands to be taken by the other two officers who were present.
that the testimony presented indicated that [defendant] was advised that he was under arrest on more than one occasion . . . . [I]t is abundantly clear to anyone and certainly to [defendant] that if you're being told to stop resisting, that you should in fact stop resisting and allow yourself to be placed under arrest.
I also heard testimony from the officers indicating that they had advised him that he was under arrest on more than one occasion.
The Law Division judge on de novo review also found Delagarza's testimony credible, namely, that upon entry into the home, Delagarza immediately told defendant he was under arrest. That judge likewise noted that defendant acknowledged hearing on several occasions that he needed to "stop resisting." As he said,
if [defendant] had "gone limp" or "did nothing" as he suggests, the whole matter would have been completed within a very short period as opposed to a several minute physical struggle on the floor with defendant's face being struck and bruised. The testimony of the defendant is simply not worthy of belief.
The Law Division judge therefore found defendant guilty of resisting arrest. He relied upon the emergency aid doctrine in convicting defendant of obstructing. The judge said, when discussing State v. Frankel, 179 N.J. 586, cert. denied, 543 U.S. 876 (2004), overruled in part by State v. Edmonds, 211 N.J. 117 (2012), and the emergency aid doctrine:
The [e]mergency [a]id [d]octrine is derived from the common sense understanding that exigent circumstances may require public safety officials such as police, firefighters or paramedics, to enter a dwelling without a warrant for the purpose of protecting or preserving life or preventing serious injury.
The Supreme Court clearly indicated that it avoided viewing the events through the distorted prism of hindsight, recognizing that those who must act in the heat of the moment do so without the luxury of time for calm reflection or sustained deliberation. Public safety officials are required to possess an objectively reasonable basis to believe – not certitude – that there is a danger and a need for prompt action.
He acquitted defendant of the remaining simple assault charge, however, because there was no evidence that defendant's conduct in causing Hall's injury was intentional.
The function of the Law Division on an appeal from the municipal court is not to search the record for error, or to assess whether there was sufficient credible evidence to support a conviction. Rather, the Law Division decides the case completely anew on the record made before the municipal judge, "giving due, although not necessarily controlling, regard to the opportunity of the" judge to evaluate witness credibility. State v. Johnson, 42 N.J. 146, 157 (1964); see also State v. Cerefice, 335 N.J.Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a "trial de novo must 'make his own independent findings of fact.'" State v. Avena, 281 N.J.Super. 327, 333 (App. Div. 1995) (quoting State v. Ross, 189 N.J.Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)).
In contrast, we review the Law Division's decision employing the "substantial evidence rule." State v. Heine, 424 N.J.Super. 48, 58 (App. Div.), certif. denied, 211 N.J. 608 (2012). We ask whether the Law Division's findings "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162; see also Avena, supra, 281 N.J.Super. at 333. Once satisfied that the findings and conclusions of the Law Division meet that criterion, our "task is complete[, ]" and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a "close one." Johnson, supra, 42 N.J. at 162.
Indeed, the Supreme Court has stated:
[D]eference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.
[State v. Locurto, 157 N.J. 463, 474 (1999).]
In this case, both judges found that defendant's testimony, that he did not hear the officers advise him he was under arrest, was not credible.
We disagree with the Law Division judge that, as a matter of law, the information available to Delagarza was enough to trigger the emergency aid doctrine. Thus we vacate the obstructing conviction.
Delagarza simply lacked sufficient information from which to conclude someone in the home was at risk of immediate danger. It is undisputed that three vehicles were in the driveway, but Delagarza heard no noise emanating from the house as he circled it before knocking on the door and inquiring into the dropped 9-1-1 call.
When Delagarza first asked defendant about the dropped call, he observed him to be calm and responsive. Defendant spontaneously walked over to pick up his phone from the coffee table, showed it to Delagarza, and said that the dispatcher's report must have been a mistake. When Delagarza peered past defendant into the house, he heard and saw nothing that indicated an altercation had taken place.
Therefore, once defendant became annoyed at being asked if he was married and attempted to shut the door, Delagarza lacked enough information to force his way in. The unexplained dropped call and defendant's lack of cooperation were the only two factors that were untoward. Hence we find no objectively reasonable justification for Delagarza's decision to enter the home. See State v. Vargas, 213 N.J. 301, 326 (2013).
Under the statute, obstructing occurs when an individual "prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act." N.J.S.A. 2C:29-1(a) (emphasis added). In the absence of facts triggering the emergency aid doctrine, which would make police entry lawful, defendant's refusal to allow Delagarza to enter his home was not an act of obstructing. He was entitled to refuse to cooperate. We do not suggest, however, that Delagarza's concern was unwarranted, only that the circumstances did not justify a forced entry. If the entry was unlawful, defendant's conduct in refusing to admit the officers is not an act of "obstructing."
Clearly, a citizen's home is entitled to the highest level of constitutional protection. See State v. Johnson, 193 N.J. 528, 553-54 (2008). It is equally clear that the emergency aid doctrine permits intrusions into the home to preserve and protect human life. Vargas, supra, 213 N.J. at 326 (explaining that police need "an objectively reasonable basis to believe that an emergency require[s] immediate action to protect life or prevent serious injury" to enter or search a home under the community caretaking doctrine (internal quotation marks omitted)).
Such intrusions are sanctioned where there is "an objectively reasonable basis to believe that an emergency requires . . . immediate assistance, " in addition to a "reasonable nexus between the emergency and the area . . . to be searched." Edmonds, supra, 211 N.J. at 132. Although Delagarza only wanted to walk through the house, a reasonable request in light of the dispatch regarding the 9-1-1 call, there was simply nothing to justify his belief that immediate action was necessary to protect human life. Because there were not enough objective circumstances to constitute a crisis, Delagarza should not have side-stepped the need for a warrant before he and the other officers attempted to gain entry into defendant's home.
The emergency aid and community caretaking doctrines are judicial creations that value the safety of members of the public over the individual constitutional rights which we ordinarily zealously protect. Such rights weave the necessary framework for an orderly and free society.
But officers weigh and balance these interests minute-to-minute and day-to-day on the street in carrying out their responsibilities with little time for reflection. From our distant perspective, we evaluate Delagarza's decision and find fault with his conclusion that defendant's conduct was so suspicious that when joined with the 9-1-1 dropped call, the situation was an emergency. Given the peculiar combination of circumstances with which he was faced, however, it is understandable that Delagarza did not merely drive away. See Frankel, supra, 179 N.J. at 599 (acknowledging that police who "must act in the heat of the moment do so without the luxury of time for calm reflection or sustained deliberation" afforded the courts). He made the legally incorrect choice — but this author finds no fault with his conclusion that the dropped 9-1-1 call could not be ignored. Delagarza had reason to be concerned, and may have been judged to be derelict in his duties if he had merely driven away, and an injured person later located in defendant's home.
Defendant's pre-arrest conduct was not unlawful; he was entitled to deny the officers entry into his home. He was not, however, entitled to resist arrest, even if it was unjustified. The arrest was made under "color of . . . official authority" and was announced. N.J.S.A. 2C:29-2(a); see also State v. Brennan, 344 N.J.Super. 136, 143 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002); State v. Kane, 303 N.J.Super. 167, 182 (App. Div. 1997). That suffices.
Here we respectfully part company with our dissenting colleague. There was ample basis for both the municipal court and Law Division judges to find Delagarza, Gant, and Hall credible and defendant incredible. If the officers had some improper motive, some prior contact with defendant, some reason which might explain their willingness to insist upon entry into the home for other than their stated justification, perhaps we would agree. But we view the credibility determinations made by the municipal court and Law Division judges in this case deferentially, as we are required to do. See Locurto, supra, 157 N.J. at 474. In our opinion, their conclusions are supported by the record.
In contrast, defendant's conduct, at least initially based on his suspicions regarding the officers' credentials, is inexplicable. The municipal court judge observed that while on the witness stand, defendant's responses were dubious and "glib." Our independent review of the record supports this conclusion; for example, defendant gave two different versions of events as the officers pushed into his home. On direct, he stated that they were able to do so only because he fell to his knees in his stocking feet on the slippery floor as he ...