State v. Lewis

• Decision Date: 11 August 1989
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. John LEWIS, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 477

116 N.J. 477

561 A.2d 1153

STATE of New Jersey, Plaintiff-Appellant, v. John LEWIS, Defendant-Respondent.

Supreme Court of New Jersey.

Argued April 25, 1989.

Decided Aug. 11, 1989.

Catherine A. Foddai, Deputy Atty. Gen., for plaintiff-appellant (Peter N. Perretti, Jr., Atty. Gen attorney, Catherine A. Foddai and Richard H. Morton, Deputy Attys. Gen., on the brief).

Barbara J. Lieberman, Designated Counsel, Atlantic City, for defendant-respondent (Alfred A. Slocum, Public Defender, attorney).

Harvey Weissbard and Alan L. Zegas submitted a brief on behalf of amicus curiae, Ass'n of Criminal Defense Lawyers of New Jersey (Weissbard & Wiewiorka and Alan L. Zegas, West Orange, attorneys).

The opinion of the Court was delivered by

STEIN, J.

In this case, as in State v. Hutchins, also decided today, 116 N.J. 457, 561 A.2d 1142 (1989), we consider the legality of a warrantless entry into a home pursuant to an informant's tip of suspected drug activity. The trial court denied defendant's motion to suppress a portion of the evidence obtained by the police following entry into the house, relying on the "plain view" exception to the warrant requirement, but granted defendant's motion to suppress other evidence subsequently discovered by the police. The Appellate Division reversed, holding that all evidence obtained in the course of the arrest and search should have been suppressed because the State failed to justify the warrantless entry into the home. We granted certification, 114 N.J. 475, 555 A.2d 602 (1989), and now affirm.

I.

On February 1, 1984, at approximately 10:45 a.m., Patrolman Patrick Da'Elia of the Newark Police Department received a telephone call from an informant. Officer Da'Elia, an eighteen-year veteran of the Newark Police Department who had participated in "hundreds" of narcotics arrests, testified at the suppression hearing that his prior dealings with this informant had proven him to be "very" reliable. The informant told Da'Elia that he had information about a person dealing in narcotics and wanted to meet with police officers. Da'Elia and another officer met with the informant at approximately 11:00 a.m. The informant told Da'Elia that he had recently left John Lewis' apartment at 595 North Sixth Street. He said that he had observed narcotics on the kitchen table and other paraphernalia in the apartment, that several other people were present in the apartment, that one had a gun, and that they were packaging drugs and getting ready to distribute them. The informant told the officers that they should go to defendant's apartment as soon as possible, because the occupants were preparing to leave.

Da'Elia notified his sergeant of the information he had received. The sergeant told him to go to Lewis' apartment immediately and attempt to gain entry. At approximately 11:30 a.m., Da'Elia met with seven other patrol officers in the area of Seventh Street and Clinton Avenue, and then proceeded to defendant's apartment, arriving sometime between 12:00 noon and 12:30 p.m. Some of the officers entered the apartment building while others, including Da'Elia, remained outside near the rear of the building.

Patrolman Anthony Pilino knocked on the door of the apartment. A male voice answered, "who is it?" In response, Pilino mumbled "it's Tony." Defendant opened the door, observed Pilino in uniform, and attempted to close the door. Pilino stuck his foot in the door to keep it open. With the door partially open Pilino observed, on the kitchen table, a glass, a gold razor blade, and a clear bottle containing a white powder believed by the officer to be narcotics. Although the State asserts that it is "unclear from the testimony whether Officer Pilino made these observations before or after defendant attempted to close the door," defendant contends that the officer made these observations only after defendant attempted to close the door. Officer Pilino's testimony concerning his observation of the items on the kitchen table was as follows:

[A]t that point, the door opened * * * and there was a male there, and at that point he saw that--well, I had a uniform on and the male behind the door tried to close the door and I had my foot in the door, I kept it open, and at that point I observed on the kitchen table a glass, a clear bottle which contained a white powder.

Pilino then entered the apartment. Defendant, the only occupant, was arrested. The officers searched the apartment, consisting of a 9' X 12' kitchen and a slightly smaller bedroom. In addition to the items seized from the kitchen table, pieces of tin foil, a plastic bag containing marijuana cigarettes, and a book with narcotics residue on it were found by the officers. Other assorted narcotics and narcotics paraphernalia were located and seized from the kitchen and defendant's bedroom: a bottle of methadone in the refrigerator; hypodermic needles and syringes on top of the refrigerator; a paper bag in a cardboard box in the kitchen with glassine envelopes; silver spoon with residue; glassine envelope with white powder; and one tin with cocaine. The officers also discovered and seized a loaded .25 caliber handgun from underneath the pillow of defendant's bed, as well as eight rounds of .22 caliber ammunition in a drawer under the bed.

Defendant was charged with possession of cocaine, N.J.S.A. 24:21-20 (Count I); possession of cocaine with intent to distribute, N.J.S.A. 24:21-19a(1) (Count II); possession of valium and methadone, N.J.S.A. 24:21-20 (Count III); and possession of a firearm without a purchaser's permit, N.J.S.A. 2C:39-10 (Count IV). A Newark municipal complaint was also filed against defendant, charging him with possession of less than twenty-five grams of marijuana, N.J.S.A. 24:21-20a(4) (Count I); unlawful possession of a hypodermic needle and syringe, N.J.S.A. 24:21-51c (Count II); and possession of narcotics paraphernalia, N.J.S.A. 24:21-47 (Count III).

On defendant's motion to suppress the evidence found in the apartment, the trial court found that the "totality of the circumstances" justified the officers' actions in attempting to enter defendant's apartment without a warrant, and that the "plain view" exception to the warrant requirement authorized the seizure of the articles found on the kitchen table. ¹

However, the court held that once defendant was in custody, the officers impermissibly engaged in a warrantless search outside of defendant's "immediate area." Accordingly, the court granted defendant's motion to suppress all other evidence, including the handgun, because there was "no sound reason" for the extensive warrantless search. ²

Following the disposition of the suppression motion, the defendant pled guilty to possession of cocaine and to the municipal charges. He was sentenced to concurrent two-year terms of probation and fined $100.

The Appellate Division reversed the trial court's denial of defendant's motion to suppress the evidence found in "plain view" on the kitchen table. The court concluded that "the State has not satisfied its 'heavy burden' of proof sufficient to justify entry into the dwelling area without prior judicial approval." State v. Lewis, 227 N.J.Super. 593, 594, 548 A.2d 231 (1988). The court rendered its ruling on state constitutional grounds exclusively. Id. at 594-95 & n. 1, 548 A.2d 231.

The court held that the trial court improperly relied on the "plain view" exception to the warrant requirement to justify the seizure of the articles observed on the kitchen table and refrigerator. Id. at 597, 548 A.2d 231. The Appellate Division reasoned that "[t]here is no doubt from Officer Pilino's testimony that he made an entry by holding the door open before he saw the contraband on the kitchen table." Ibid. Because the Appellate Division could find no exigency to justify the entry, it held the "plain view" exception clearly inapplicable since "[i]t does not apply unless [the officers] were 'lawfully in the viewing area' in the first place." Ibid. (quoting State v. Bruzzese, 94 N.J. 210, 237, 463 A.2d 320 (1983)). The Appellate Division concluded that there was no justification for the officers' failure to obtain a search warrant:

[T]he State has not met its "heavy burden" of demonstrating that the warrantless entry and search of this dwelling area was justified. The entry, search and seizure occurred at midday on a Wednesday. The informant spoke to the police only a mile from the County and Municipal courthouse in this State's biggest city. Eight policemen were dispatched to raid defendant's apartment, two miles from the courthouse. (The location where the informant talked to Officer Da'Elia was equidistant between the courthouse and the location of the raid on defendant's apartment on North Sixth Street.)

The search is presumed invalid. Our "after-the-fact" evaluation does not satisfy us that the State has justified an intrusion into a living area without a warrant. The showing of the alleged informant's reliability and veracity used to establish the claimed probable cause was "bare-bones" at best. No effort was made to obtain a warrant. Not the slightest excuse for failure to try was proferred or seems palatable under the circumstances. [Id. 227 N.J. Super. at 601, 548 A.2d 231 (citations omitted).]

II.

This case, like State v. Hutchins, supra, 116 N.J. 457, 561 A.2d 1142, involves application of the exigent-circumstance exception to the warrantless entry of defendant's apartment. We emphasized in Hutchins the heavy burden that must be overcome to justify a warrantless entry into a home:

As the United States Supreme Court has acknowledged, "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States Dist. Court, 407 U.S. 297, 313 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," ...