State v. DeLane

• Decision Date: 27 January 1986
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Theodore DeLANE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 45

207 N.J.Super. 45

503 A.2d 903

STATE of New Jersey, Plaintiff-Respondent, v. Theodore DeLANE, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 7, 1986.

Decided Jan. 27, 1986.

Arnold E. Brown, Englewood, on brief, for defendant-appellant.

Irwin I. Kimmelman, Atty. Gen. (Linda K. Calloway, Deputy Atty. Gen., of counsel and on brief), for plaintiff-respondent.

Before Judges PRESSLER, DREIER and BILDER.

The opinion of the court was delivered by

DREIER, J.A.D.

Defendant has appealed from a conviction based upon his guilty plea to the charge of unlawful possession of marijuana with intent to distribute, N.J.S.A. 24:21-19a(1). The plea, which was unconditional, was entered immediately following the trial judge's denial of defendant's motion to suppress the evidence of the marijuana seized from his home and a pretrial ruling that defendant's statements at the time of his arrest would be admissible at trial. The retraxit plea of guilty had been entered in exchange for the State's recommendation of a probationary sentence conditioned on a county jail term. Defendant was sentenced to a three year probationary term with drug dependency rules as well as a $25 Violent Crime Compensation Board penalty. Defendant has appealed raising two points: first, that evidence of the marijuana in his home should have been suppressed due to a lack of exigent circumstances justifying the search and, second, that admission of the statements made by him at the time of his arrest would violate the proscriptions of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

I

Treating defendant's second point first, we determine that it clearly has no merit. Defendant had entered an unconditional plea of guilty to the charge of possession of marijuana with intent to distribute. By such plea he waived any non-jurisdictional constitutional challenge. As stated by the United States Supreme Court in Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973):

A guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

See also State v. Keegan, 188 N.J. Super. 471, 474, 457 A.2d 1205 (App.Div.), certif. den. 93 N.J. 320, 460 A.2d 710 (1983), where the court held that R 3:5-7(d) provides that an appeal from an unconditional plea of guilty "is limited to claims of violation of the state and federal constitutional right to be free from unreasonable search and seizure" only. If defendant wished to preserve the Miranda issue on appeal, he could have entered a conditional guilty plea pursuant to R. 3:9-3(f) with the approval of the court and consent of the prosecuting attorney. See State v. Morales, 182 N.J. Super. 502, 508, 442 A.2d 1012 (App.Div.1981), certif. den. 89 N.J. 421, 446 A.2d 150 (1982). Thus defendant's Miranda objection is not cognizable on this appeal.

The Miranda issue is moreover without factual foundation since after defendant's Miranda rights were given, defendant informed the officers that he knew his rights and without further questioning told them that he had purchased five pounds of marijuana in Brooklyn, that he had insufficient funds from his employment to support himself, that he had a list of names of people who had not paid him for the marijuana, and although it had taken the police a while, they had finally caught him. Such a volunteered statement, not made in response to custodial interrogation, is immune from exclusion under Miranda and its progeny.

II

Defendant's challenge to the suppression motion is cognizable on this appeal despite the guilty plea under R. 3:5-7(d). The trial judge denied the suppression motion on the basis of exigent circumstances. Defendant's apartment had been under surveillance for some time after controlled purchases of marijuana from him by a police informer. The police had determined to raid the premises and an officer went to police headquarters to obtain a search warrant for defendant and the premises. Defendant was then seen leaving the apartment and was stopped by the officers approximately two blocks away. Rather than wait for notification that the search warrant had been issued, the officers at the scene entered the apartment to secure it and in the process discovered the marijuana. Approximately 10 to 20 minutes later, without having been told that the premises had already been entered, the judge signed the search warrant. Notification of the issuance was immediately radioed to the officers at the scene. Based upon these facts the trial judge determined that although the search warrant could not be used to justify admission of the evidence seized, there was a sufficient showing of exigent circumstances to justify the officers' securing of the premises. Therefore, the marijuana found in plain view when the police entered was held admissible into evidence. We disagree with the trial judge's reasons for admitting the evidence, but nevertheless affirm his decision.

The trial judge was, of course, correct that the later-issued warrant could not validate the search, but we find no exigent circumstances present here. Defendant was not arrested within sight of the premises. Had this arrest been physically closer to the house, an observer on the premises might have viewed the arrest and immediately destroyed the drugs. United States v. Segura, 663 F.2d 411, 414 (2d Cir.1981), aff'd 468 U.S. ----, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Such facts have been held to create exigent circumstances. See United States v. Turner, 650 F.2d 526, 528 (4th Cir.1981). Here the police had the premises under surveillance and knew who had entered and left; they, therefore, knew or should have known that the premises were unoccupied. In any event, it was unlikely that a casual observer of the arrest some two blocks from the apartment would have notified the occupants, if any, to destroy the drugs. The premises could have been secured from the outside to see that no one entered for the 10 to 20 minute period that it took to complete the proceedings leading to the issuance of the warrant. United States v. Segura, supra, at 416. The exigent circumstances basis for authorizing a warrantless entry into a home is to be applied with great circumspection. State v. Sims, 75 N.J. 337, 356, 382 A.2d 638 (1978). The police in this case had no right to enter defendant's home without other legal justification.

The fact remains, however, that prior to entry into defendant's home the police had sufficient evidence to obtain a warrant, had taken all steps to have the same issued, and the warrant was...