Submitted (A-3328-15 and A-3829-15) and Argued (A-3138-15 and
A-3274-15) January 24, 2018
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).
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).
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).
D.S. McAlevy, attorney for appellant Roberto Perez-Garcia in
E. Krakora, Public Defender, attorney for appellant William
R. Jerez in A-3829-15 (Frank M. Gennaro, Designated Counsel,
on the brief).
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.
Judges Koblitz, Manahan and Suter.
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. 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.
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.
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.
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 ...