State v. Portes

• Decision Date: 14 January 2004
• Docket Number: No. 2001-567-C.A.,2001-567-C.A.
• Citation: 840 A.2d 1131
• Parties: STATE v. Diana PORTES.
• Court: Rhode Island Supreme Court

840 A.2d 1131

STATE v. Diana PORTES.

No. 2001-567-C.A.

Supreme Court of Rhode Island.

January 14, 2004.

Virginia McGinn, Esq., Providence, for Plaintiff.

John F. Cicilline, Esq., Bristol, for Defendant.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, FLAHERTY and SUTTELL, JJ.

OPINION

FLAHERTY, Justice.

On June 28, 2000, three officers from the North Providence Police Department responded to 1605 Douglas Avenue, apartment 10, in that town as a result of a 9-1-1 call made by an unidentified male who reported a disturbance at that location. Because there was a language barrier between the caller and 9-1-1 operator, the municipal police officers who responded were unaware of the precise nature of the disturbance precipitating the call. Upon arrival, Officer Paul Martellini approached the front door of the apartment while Officers Scott Godin and Breit secured the rear of the residence. Martellini knocked on the door and identified himself; however no one answered the door. As the officer continued to knock on the door, he heard the sound of someone running up and down stairs and a door banging from within the apartment. At that time, a Ms. Eleanor M. Papa, the neighbor in the adjacent apartment, informed Martellini that she had seen the female tenant of apartment 10,¹ later identified as defendant, and defendant's son, enter a taxicab and depart less than a half-hour before.² Records later confirmed that defendant and her son had taken a cab to Providence. Papa also informed the officer that after defendant departed, she heard a loud commotion and a banging coming from the upstairs portion of apartment 10.

While Martellini was engaged at the front door, Officer Godin saw a man, later identified as John Tejada,³ exit the back sliding-glass door of the apartment onto the deck and peer over the railing. Apparently, Tejada was startled upon seeing Godin below, and, despite Godin's orders to stop, he ran back inside the apartment. Godin relayed this information to Officer Martellini, who then forced his way into the apartment. Upon entry, Martellini noticed Tejada standing on the stairs of the dimly lit apartment. An agitated Tejada repeatedly ordered the officer out of the home before descending, at which point Martellini cuffed him and performed a patdown of his person. Tejada was belligerent and offered no information except for the name of "Diana," presumably speaking of defendant. A language barrier further hindered communication between the officers and Tejada, and the officers were still unable to surmise what had prompted the 9-1-1 call. In the interest of securing the safety of any individuals in the apartment, the officers conducted a cursory search throughout the residence. Although they found no one else in the apartment, a loaded clip for a 9 millimeter firearm was in plain view on the nightstand of the master bedroom. Also, a clear bag containing what appeared to be cocaine sat in open view on the kitchen counter. The Narcotics Division of the North Providence Police Department-was summoned and the investigation was handed over to officers specializing in illegal narcotics.

Narcotics Officer Christopher Cardarelli soon arrived, and he confirmed the presence of cocaine in the bag in the kitchen. Based on this information, Officer Cardarelli obtained a search warrant for the premises, and a thorough examination of the premises was conducted. Two small digital scales, sandwich bags, duct tape and an artificial beer can with a false compartment were discovered in the kitchen cabinets. These items were seized due to their common association with narcotics trafficking. In the master bedroom, Cardarelli also found approximately five kilograms of cocaine⁴ under the mattress wrapped in five separate bundles with duct tape and a 9 millimeter handgun hidden under clothing in a closet. Personal documents of defendant and her live-in boyfriend, Melquiades Villanueva, also were seized from the master bedroom.

Arrest warrants promptly were issued for Portes, Villanueva, and Tejada, charging them with unlawful possession of in excess of one kilo of cocaine, carrying a dangerous weapon when committing a crime of violence, conspiracy to violate the controlled substance laws, and possession of cocaine with the intent to deliver.

Villanueva and Tejada fled the jurisdiction before they could be arrested, and remain at-large. Portes surrendered to police and was tried before a jury on all four counts. At the close of the evidence, the trial justice granted defendant's motion for judgment of acquittal on both the handgun and conspiracy counts. The jury found her guilty on the two possession counts. On the first count she was sentenced to thirty years, with eight years to serve, the balance suspended, with probation. On the fourth count she was sentenced to eight years to serve. Both sentences were to run concurrently.⁵ The defendant now appeals those two convictions. For the reasons set forth below, we deny her appeal.

Issues

Portes appeals from the judgment of conviction on four grounds. First, she urges that the trial justice erred in denying her pretrial motion to suppress the evidence seized as a result of a warrantless search of her residence. Second, she faults the trial justice for finding that there was sufficient evidence to establish constructive possession of the contraband beyond a reasonable doubt. Third, she argues that the trial justice erred when he deferred ruling on the state's motion to exclude evidence of Villanueva and Tejada's flight from the jurisdiction. Finally, defendant maintains that she was prejudiced by the prosecutor's closing argument, which commented on her financial status and suggested that she relied on drug money for subsistence. The defendant seeks a reversal of the judgment of conviction and a new trial based on these four contentions.

Motion to Suppress Tangible Evidence

The defendant first argues that the trial justice improperly denied her motion to suppress the evidence seized as a result of a warrantless entry `into her apartment. She maintains that the limited information known to the police just prior to their forced entry did not indicate that a life was in peril. Therefore, she claims, the situation did not rise to the level of exigent circumstances necessary to allow an exception to the constitutional requirement that the police obtain a warrant. The defendant further asserts that even if exigent circumstances were present, a warrantless entry was not justified absent probable cause, which she contends was not present. In her view, once inside, the police greatly exceeded the scope of a cursory search for security purposes when they lifted beds and opened kitchen cabinets. We disagree with defendant's assertions and take issue with the chronology of events that she suggests.

An analysis of the admissibility of the evidence harvested in the search of defendant's apartment must begin with a determination of whether the police's entry was justified. It is well established that governmental "searches conducted outside the judicial process, without prior approval by [a] judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few well-delineated exceptions." Duquette v. Godbout, 471 A.2d 1359, 1362 (R.I.1984) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). One such recognized exception is that of exigent circumstances, such as occurs in a police pursuit of an offender of whom they have probable cause to believe committed a known offense. Under the so-called "emergency exception," this Court has recognized an expanded version of this doctrine "to permit warrantless entry in an `emergency' requiring preventative action." Duquette, 471 A.2d at 1362. In Duquette, we held that forced entry was justified under the emergency exception when the police possessed information that a minor child was in peril inside an apartment from which screaming had been reported and where knocking and announcement by police had elicited no response. This doctrine requires that the officer have an objective, reasonable belief that his swift and immediate action is required to avert a crisis. State v. Gonsalves, 553 A.2d 1073, 1075 (R.I.1989); Duquette, 471 A.2d at 1363 (citing State v. Benoit, 417 A.2d 895, 900 (R.I.1980)). The impetus of the entry is to preserve life and property. For this reason, the more stringent standard of probable cause is not required. That said, it is important to ensure that the intrusion was not merely a pretext to make an arrest or a search to seize evidence. Duquette, 471 A.2d at 1363.

In the instant matter, entry into the apartment was made only after the police officers' presence had been repeatedly announced and ignored, a male occupant was seen attempting to exit from the rear of the apartment and then retreating back inside, and upon information from the neighbor that she had heard a commotion coming from the apartment. Based on the totality of the circumstances before them, and based on an inability to discern what situation had prompted the emergency call, the police acted rationally and properly in the interest of protecting citizens from bodily harm and property destruction. We agree with the trial justice's statements at the hearing on the motion to suppress the evidence:

"I think the police would have been derelict in their duty not to enter those premises * * *. I'm satisfied that under the circumstances presented, there were exigent circumstances; that the officer had every right to get into that residence to insure that there was not foul play going on in there. * * * And I think that the officer did the appropriate thing."

This Court is mindful that police are in the emergency service business and they usually have little or no time to leisurely consider their options or engage in protracted evaluation. Indeed, in this case it would have been unreasonable for the...