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State v. Sencion

Superior Court of New Jersey, Appellate Division

March 15, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
YOMAIRA SENCION, JUAN F. SANTANA, ROBERTO PEREZ-GARCIA, WILLIAM R. JEREZ, Defendants-Appellants.

          Submitted (A-3328-15 and A-3829-15) and Argued (A-3138-15 and A-3274-15) January 24, 2018

         On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. 13-08-1177.

          Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant Yomaira Sencion in A-3138-15 (Joseph E. Krakora, Public Defender, attorney; Stephen. Kirsch, of counsel and on the brief).

          Jane M. Personette argued the cause for appellant Juan F. Santana in A-3274-15 (Law Offices of Brian J. Neary, attorneys; Jane M. Personette, on the brief).

          Ian C. Kennedy, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent in A-3138-15 and A-3274-15 (Dennis Calo, Acting Bergen County Prosecutor, attorney; Ian C. Kennedy, of counsel and on the briefs).

          Dennis D.S. McAlevy, attorney for appellant Roberto Perez-Garcia in A-3328-15.

          Joseph E. Krakora, Public Defender, attorney for appellant William R. Jerez in A-3829-15 (Frank M. Gennaro, Designated Counsel, on the brief).

          Dennis Calo, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief; Joseph Torres, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief in A-3328-15 and Ian C. Kennedy, Assistant Prosecutor, of counsel and on the brief in A-3829-15.

          Before Judges Koblitz, Manahan and Suter.

          OPINION

          KOBLITZ, J.A.D.

         Defendants appeal from an August 7, 2014 order denying their motion to suppress evidence as well as their subsequent February 19, 2016 convictions after pleading guilty to various crimes based on the drugs and guns found in plain view through the open door of an apartment.[1] The police used a tool to force entry into the locked apartment building twice before approaching the fourth-floor apartment door. The State, conceding a lack of probable cause, successfully argued that the forced entry into the building did not violate constitutional protections. The motion judge allowed defendants to continue on bail pending this appeal. Because people have a reasonable expectation of privacy from a forced police entry into the locked common area of the apartment building, we now reverse.

         The suppression hearing revealed the following facts, as found by the judge. On May 8, 2013, close to 1:00 a.m., Fort Lee Patrolman Richard Hernandez, an experienced K-9 officer who had been on the force since 2003, noticed a Nissan Sentra with Pennsylvania license plates driving slowly with its hazard lights on. When the car pulled over and stopped, Patrolman Hernandez pulled alongside the car to make sure the driver was all right. Jose Rivas, the driver, began to explain in broken English that he had a flat tire. Rivas exited his car and moved toward the trunk. Patrolman Hernandez, fluent in Spanish, exited his patrol car.

         Rivas said he had a spare tire but not the necessary tools to change the tire. He asked Patrolman Hernandez if he had a tire iron. Rivas opened the trunk to show Patrolman Hernandez the spare tire. In the trunk, Patrolman Hernandez saw a mirror and a headlight, with wires hanging out, which did not appear to belong to the Sentra.

         Patrolman Hernandez asked Rivas where he came from and what he was doing in the area. Rivas answered that he was from the Bronx, although he had a Pennsylvania driver's license. He said his cousin lived in Pennsylvania, and that he was visiting a friend named "Shorty" who lived at a nearby five-story building with thirty-six apartments. Patrolman Hernandez observed that Rivas avoided eye contact, paused before answering some ...


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