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State v. Hathaway

Superior Court of New Jersey, Appellate Division

December 2, 2013

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
DONTAE HATHAWAY, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2013

On appeal from an interlocutory appeal of the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-08-2008.

James P. McClain, Acting Atlantic County Prosecutor, attorney for appellant (Richard E. McKelvey, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Law Offices of Joseph A. Levin, LLC, attorneys for respondent (Melissa Rosenblum-Pisetzner, on the brief).

Before Judges Parrillo, Harris, and Guadagno.

PER CURIAM

We granted the State leave to appeal an order of the Law Division suppressing evidence of a handgun obtained during a warrantless search of a hotel room registered to defendant Dontae Hathaway on March 28, 2012. We affirm.

On March 28, 2012, Atlantic City Police Officer James Armstrong was working special employment detail at the Taj Mahal Hotel and Casino.[1] In the early morning hours, between approximately 3:00 a.m. and 4:00 a.m., Taj Mahal security radioed Armstrong and asked him to respond to the hotel's security podium. When he arrived, Taj Mahal security officers told Armstrong that an unknown white male had earlier approached the podium, and told them "he was robbed at gunpoint on the 70th floor[, ]" that "he was taken inside of a room, . . . forced to undress, and then . . . robbed of $400 in cash." The alleged victim described his assailants as "two black males wearing dark clothing."[2] The security officers on duty told Armstrong that the complainant appeared "animated" and "upset."

The alleged victim never mentioned the room number where the incident occurred. By the time Armstrong had arrived at the security podium, the complainant had already departed the scene and did not return. To date, he has never been identified.

Armstrong then asked the security officers to radio Taj Mahal's surveillance department and have them review the videotape "to confirm the presence of the alleged victim on the 70th floor of the casino [hotel]." According to Armstrong:

[t]he purpose of [his] request was . . . to confirm that an incident actually occurred on the 70th floor to match what [the victim] had told security . . . to see . . . if [the victim] was there with the two people that he described, if he was there at all[, ] . . . what his demeanor was and possibly what had happened.

Armstrong did not personally review the tape at that time, because the casino hotel's surveillance system was located in the "Chairman's Tower" about a ten-to-fifteen minute walk from the security podium, and he "wanted to get up to the room to possibly contain it if there was somebody in there from the outside."

Armstrong, however, did not immediately proceed to the 70th floor. Instead, he waited to hear back from surveillance. In the meantime, he alerted Atlantic City's special weapons and tactics — SWAT — team to report to the Taj Mahal "because [he] didn't really know the rest of the circumstances . . . whether [there was] an armed gunman on the 70th floor . . . [or] if somebody was still in the room."

During the five minutes it took for the SWAT team to respond, the Taj Mahal surveillance officer who reviewed the videotape reported back to the security officer, who, in turn, relayed to Armstrong that the tape "confirmed that [the victim] . . . was seen on the elevator with two black males and [Armstrong] believe[d] . . . a white female.[3] When the elevator [] stopped at the 70[th] floor, " they all exited and entered Room 7023. After a period of time, "[t]he victim left the room quickly, he ran out, he was pushing the elevator buttons several times while he was looking over his shoulder back at the room, [and] he appeared frantic as if something had happened."[4] The surveillance officer, however, never reported seeing anyone with a gun during his review of the tape.

Based on this third-hand information, Armstrong "was led to believe something had occurred in the room." At that point, Armstrong, along with four members of the SWAT team and three casino hotel security officers, assembled and positioned themselves outside Room 7023. They first employed the "call-out" tactic, placing a call into the room to instruct the suspects to come out in a "surrender position." This approach is "tactically safer [] as opposed to [] going in and bursting into the room." When they received no response, the team then "moved up closer to the door. . . . [and] noticed the door was left open as if somebody had left in a hurry. . . and the light was on inside the room." The door was cracked open with the hotel door's security latch. "[B]ecause the light was on, [they] were unsure i[f] there [was] somebody tied up, [or] i[f] there [was] somebody in the bathroom, i[f] somebody ha[d] been shot . . . unconscious, [if] they need[ed] help, [or] if there [was] an armed gunman in the[] [room]." Armstrong and the SWAT team made efforts to call into the room, but no one answered.

Next, the team proceeded to "pin the door, " a procedure where the officers jam open the door, using a "doorjamb, " allowing them to see inside the room. After again calling into the room to see if anyone was inside, Armstrong observed the room to be a suite, with two beds. Off to the right, there was a bathroom door, which was closed. A closet to the left was also visible. At this point, the officers were unable to see anything beyond the bathroom and closet.

The officers then entered the room, with guns drawn, "to see if there w[ere] any victims or suspects [inside]." Once inside the room, they observed "to the deep right" a bed on which there appeared to be women's clothing. At the bottom of the bed there was a cabinet, on which there was a "wide-open" black duffle bag. Inside the bag, a small caliber Beretta black automatic handgun was visible. The officers did not have to open the bag, ...


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