Argued September 22, 2014.
Approved for Publication May 18, 2015.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 12-04-0932.
A. Harold Kokes argued the cause for appellant.
John J. Santoliquido, Assistant Prosecutor, argued the cause for respondent ( James P. McClain, Atlantic County Prosecutor, attorney; John Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).
Before Judges SABATINO, GUADAGNO and LEONE.
[441 N.J.Super. 10] LEONE, J.A.D.
Defendant James Legette was properly detained by a police officer conducting an investigatory stop. Defendant sought to get his identification by entering his apartment, which the officer permitted on the condition that the officer accompany him. While in his apartment, defendant attempted to conceal the sweatshirt he was wearing which contained a firearm, but he was thwarted by the officer. Defendant appeals the denial of his motion to suppress the handgun, contending that the officer should not have been allowed to accompany him to the apartment.
The Fourth Amendment of the United States Constitution, and Article I, paragraph 7 of the New Jersey Constitution,
" guarantee the right of people to be free of unreasonable searches and seizures in their homes." State v. Lamb, 218 N.J. 300, 314, 95 A.3d 123 (2014). Both the United States Supreme Court and the New Jersey Supreme Court have found that when individuals under arrest seek to enter their residence to obtain identification, clothing, or other items, it is reasonable and permissible for the police to accompany them to prevent them from escaping or endangering the police. Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982); State v. Bruzzese, 94 N.J. 210, 234, 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984).
We apply those decisions to the situation here. The officer had valid authorization to detain defendant for an investigatory stop based on reasonable suspicion, and had a reasonable belief that defendant was armed and dangerous. We hold that an officer in that situation may accompany the detainee who chooses to enter [441 N.J.Super. 11] his residence to obtain identification or other personal items. Accordingly, we affirm.
At the suppression hearing, Officer Richard Dill testified to the following facts. Dill was a uniformed K-9 officer with ten years of experience in the Patrol Unit of the Somers Point Police Department. On the night of January 17, 2012, he was dispatched to investigate a noise complaint in a high-crime, high-narcotics apartment complex he patrolled regularly. As he drove through the complex, Dill saw defendant and another man standing on a common porch of the apartment building. Entering the building from another direction using a common hallway, Dill heard the two men yelling to people in an apartment where there was loud talking and music. After Dill neared the door to the common porch, defendant opened the door about twelve inches. Officer Dill smelled an overpowering odor of burnt marijuana coming through the open doorway.
Suspecting defendant was committing a criminal act involving marijuana, Officer Dill walked onto the common porch and identified himself. Defendant immediately turned and started walking at a fast pace into the parking lot. Dill told defendant to stop and asked where he was going. Defendant said he was going to his car. Dill asked if defendant had any identification. Defendant said his identification was up in his apartment, immediately volunteered to go into his apartment to get his ID, and started walking back to the apartment building.
Officer Dill told defendant, " I have to come with you to get [the ID]." Defendant did not protest and continued to walk into the building. As defendant was walking, Officer Dill noticed a bulge in the pocket of the grey hooded sweatshirt defendant was wearing. Dill was concerned it could be a weapon or contraband that defendant was attempting to conceal. Dill went with defendant because " he's a suspect at this point and I wasn't going to allow him out of my sight where he could possibly discard evidence of [441 N.J.Super. 12] the crime being committed or possibly get any sort of weapon" that would endanger officer safety.
Accompanied by Officer Dill, defendant entered the apartment, went into the bedroom, picked up a wallet, removed his identification, and handed it to Dill. Neither defendant nor the woman in the apartment protested Dill's accompanying defendant. Defendant and Dill went into the living room, where Dill radioed in the information from defendant's identification.
As Officer Dill was radioing, defendant took off his grey sweatshirt, handed it to
the woman, and told her to put it in the bedroom. His suspicions further aroused, Dill stopped his radio transmission and told defendant: " we're going to need that sweatshirt." Defendant and Dill followed the woman back into the bedroom. Although she put the grey sweatshirt on the floor, defendant stepped over the grey sweatshirt and grabbed another sweatshirt from the closet. Dill picked up the grey sweatshirt from the floor, and said to defendant: " this is the sweatshirt you were wearing. We need this one." Defendant's attempts to get rid of the grey sweatshirt further raised Officer Dill's concern for his safety and the preservation of evidence.
Reentering the living room with defendant, and holding the grey sweatshirt, Officer Dill resumed calling in defendant's identification to check for outstanding warrants. Defendant became extremely nervous, repeatedly looked at the sweatshirt, and his demeanor became uncooperative.
Increasingly concerned for his safety, Officer Dill asked defendant to step back outside, where Dill's patrol vehicle, K-9 dog, and backup Officer Mark McElwee were. Once outside, Dill asked defendant to have a seat on the building steps. Defendant started tying his shoe, causing concern he was preparing to flee. Dill placed the sweatshirt on the ground. Defendant kept looking at the sweatshirt and looking around nervously, so Dill informed him he was handcuffing and detaining him during the investigation, but was not arresting him.
[441 N.J.Super. 13] When Officer Dill's warrant inquiry came back negative, he asked if he could check the sweatshirt, but defendant declined to consent. Dill said he would conduct a canine sniff of the sweatshirt, and to keep him from provoking the K-9 dog, he placed defendant in the back of the patrol vehicle. Dill got another sweatshirt and a towel from his police vehicle and placed them alongside the grey sweatshirt, but the dog put his nose in the grey sweatshirt, grabbed it in his mouth, and threw it to the pavement. It landed making a metal " clank" that sounded like a weapon. Dill picked up the sweatshirt, for the first time manipulated the pocket, and felt a metal handgun. The officer seized the loaded handgun.
Defendant was indicted for second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b), and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. He filed a suppression motion. After hearing the testimony and receiving supplemental briefing and argument, the trial court denied the motion. Defendant pled guilty to possession of a weapon by a convicted person, and was sentenced to a negotiated term of five years in prison without eligibility for parole. The trial court denied bail pending appeal.
Defendant appeals the October 11, 2013 judgment of conviction, raising the following issues:
POINT I. THE COURT ERRED IN DETERMINING DEFENDANT IS LIKELY TO FLEE IF ALLOWED BAIL PENDING APPEAL.
POINT II. DEFENDANT DOES NOT POSE A DANGER TO COMMUNITY.
POINT III. THERE ARE SUBSTANTIAL QUESTIONS OF FACT AND LAW THAT WERE RAISED IN DEFENDANT'S MOTION TO SUPPRESS.
POINT IV. INVALID ...