State v. Josey

• Decision Date: 23 April 1996
• Citation: 290 N.J.Super. 17,674 A.2d 996
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Keith JOSEY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 17

290 N.J.Super. 17

674 A.2d 996

STATE of New Jersey, Plaintiff-Respondent, v. Keith JOSEY, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Dec. 13, 1995.

Decided April 23, 1996.

Espey and Szabo, Flemington, for appellant (Lowell Espey, of counsel and on the brief).

Robert W. Gluck, Prosecutor, for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

Before Judges KING, LANDAU and HUMPHREYS.

The opinion of the court was delivered by

HUMPHREYS, J.A.D.

The police observed the defendant and a co-defendant selling cocaine on the sidewalk outside of the defendant's apartment. After observing a number of sales, the police attempted to arrest them. The defendant fled into his apartment. The police entered his apartment and arrested him.

The defendant's motion to suppress evidence was denied. He later pled guilty to the following charges: possession of a controlled dangerous substance (cocaine) (third degree) (count one), contrary to N.J.S.A. 2C:35-10a(1); possession of a controlled dangerous substance with intent to distribute (cocaine) (third degree) (count two), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); possession of a controlled dangerous substance with intent to distribute on or near school property (cocaine) (third degree) (count three), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-7; distribution of a controlled dangerous substance (cocaine) (third degree) (count four), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); distribution of a controlled dangerous substance on or near school property (cocaine) (third degree) (count five), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-7; possession of a controlled dangerous substance with intent to distribute (marijuana) (fourth degree), (count six) contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(12); possession of a controlled dangerous substance with intent to distribute on or near school property (marijuana) (third degree) (count seven), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-7; obstructing the administration of law or other governmental function fourth degree) (count eight), contrary to N.J.S.A. 2C:29-1; and resisting arrest (fourth degree) (count nine), contrary to N.J.S.A. 2C:29-2.

He was sentenced as follows:

On count 3 to a prison term of 10 years with a 5 year parole bar; on count 5 to a term of 5 years with a 3 year parole bar to run concurrently with count 3; on count 7 to a term of 5 years with a 3 year parole bar to run concurrently with count 3; on count 8 to a term of 18 months with a 9 month parole bar to run consecutively with count 3; and on count 9 to a term of 18 months, with a 9 month parole bar to run concurrently with count 8. Also imposed were various penalties and fees. In addition, his driver's license was suspended for a total of eighteen months, and money and property seized from him at the time of arrest were forfeited.

The defendant appeals pursuant to R. 3:5-7(d). He contends that evidence should have been suppressed because the police entered his apartment without a warrant. The Middlesex County Prosecutor argued at the hearing before the motion judge that the entry was justified. In his brief before this court, the prosecutor changes his position. He now concedes that the entry was improper. Nevertheless, he maintains that most of the convictions should be affirmed.

After a thorough examination of the record, we hold that the police entry into the apartment did not violate the defendant's constitutional rights. Hence, the motion to suppress was properly denied. The convictions are affirmed.

I

Two police officers, Det. William Oels and Sgt. Paul Schuster, testified at the suppression hearing. Neither the defendant nor his co-defendant testified. Superior Court Judge Lefelt made the following findings.

On December 11th, 1993 in the morning Detective Oels observed approximately four drug transactions involving Mr. Josey and Mr. Jones [a co-defendant]. He was concerned about the small bags being sold, since they can, apparently, be easily swallowed.

While Oels observed Josey changing clothes throughout his observation, he did not see the stash and could not determine if it was, in fact, kept in the house, in Josey's apartment or in his house.

After observing a larger plastic bag containing, allegedly, too many packets to be swallowed passed from Mr. Josey to Mr. Jones, Oels radioed for the backup officers to move in.

At this time Oels observed Mr. Josey walking back toward the entrance to his house. Mr. Josey's house entrance was in an alley on the side of his house.

Oels also saw Mr. Jones throw the bags that Josey had given him to the ground as the officers arrived. These bags were picked up by the arresting officers.

As Schuster arrived in the back of the alley, which contained Josey's entranceway, Mr. Josey was not in sight.

Schuster saw Jones being cuffed at this time. He did not see Jones throw the items to the ground.

Schuster pounded on the door and demanded entry. He heard footsteps running up the stairs. He broke down the door, and entered the house. There was a struggle with Josey, as Mr. Josey apparently tried to dump a plastic bag with white powder ... [into] a sink. This bag was, according to Schuster, completely empty at the time they finally arrested Mr. Josey, and the bag was completely filled [with] water.

The three officers handcuffed Josey and were taking him out. In plain view, Sergeant Schuster saw in the bedroom twenty-two packets of cocaine lying on the floor.

A search warrant was obtained, and later there was found some marijuana and over a thousand dollars in cash.

Now, first, since I have found that Jones threw the bags to the ground, this was an event in no violation of his constitutional rights for the police to retrieve these items. Accordingly they will not be suppressed.

Second, while a witness cannot assume hot pursuit, as Mr. Nieves argued in his argument, there is sufficient evidence from which I can infer that Mr. Josey ran from the police and up the stairs causing the exigent circumstances permitting, in my view, Sergeant Schuster's entry into the house.

Officers were converging on Mr. Jones and Mr. Josey. Schuster saw the end of the Jones' arrest, and there was only one door to Josey's apartment, and Josey was not there, and then Schuster heard the footsteps running up the stairs. This leads me to conclude that there was, that this was, in fact, hot pursuit.

Now, there was urgency, hot pursuit, to arrest and prevent destruction of contraband. There's no doubt I found, and I find, that Mr. Josey knew the police were hot on his trail. Schuster heard the running up the stairs and could reasonably believe contraband was to be destroyed.

There was no danger to the officers guarding that sight under the Lewis test, that was a factor, there was no danger to the officers if they guarded that site after Mr. Josey ran in the house, but I believe the contraband, any contraband would ... [have] been destroyed had a warrant, had the time it taken to obtain a warrant in this situation.

I believe this is different from State versus Lewis relied on by the defense where the police officer had no right to put his foot in the door when he put his foot in the door.

Here Mr. Josey, by his own actions, gave Schuster cause to enter the house, in my view. I do not believe a warrant could have been obtained before Oels called in the arrest, as argued by Mr. Nieves, because no observations were made of the house and the stash.

Since the entry was valid, the seizure of the drugs in plain view and the drugs and cash seized in response to the warrant were also seized lawfully, and therefore shall not be suppressed.

II

A heavy burden must be overcome by the State to justify a warrantless entry into a home. State v. Hutchins, 116 N.J. 457, 463, 561 A.2d 1142 (1989); State v. Lewis, 116 N.J. 477, 483, 561 A.2d 1153 (1989). The physical entry into a home is the "chief evil against which the wording of the Fourth Amendment is directed...." United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764 (1972). "Accordingly, it is well established that 'searches and seizures inside a home without a warrant are presumptively unreasonable.' " Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 651 (1980); Welsh v. Wisconsin 466 U.S. 740, 749, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 743 (1984); State v. Hutchins, supra, 116 N.J. at 463, 561 A.2d 1142.

Nevertheless a warrantless entry into a home may be valid if warranted by exigent circumstances, such as hot pursuit of an armed felon. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The potential destruction of evidence is also an exigent circumstance which would support a warrantless entry into a home. See United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); State v. Hutchins, supra, 116 N.J. at 464, 561 A.2d 1142.

Professor LaFave has stated: "Other courts have rather consistently upheld warrantless entries where the pursuit was equally 'hot' and even when it was somewhat less 'hot' than in Hayden and Santana...." Wayne R. LaFave, Search and Seizure, § 6.1(d) at 252 (3d ed. 1996) (footnote omitted). "Thus, totally apart from the question of whether a need to save evidence should justify a warrantless entry and full search for that evidence, ... it makes great sense to recognize that frequently an immediate entry to arrest is necessitated so that the defendant can be disabled from destroying or distributing evidence...." LaFave, supra, § 6.1(f) at 274 and § 6.5(b) at 340-360 (footnotes omitted).

The validity of a warrantless entry by the police into a home has been considered in a number of recent New Jersey cases. In Hutchins, supra, 116 N.J. at 459, 561 A.2d 1142, the Court considered the legality...