State v. Radel
| Decision Date | 20 October 2020 |
| Docket Number | DOCKET NO. A-2503-18T3 |
| Citation | 465 N.J.Super. 65,239 A.3d 1055 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Christopher RADEL a/k/a Christoph R. Radel, Christpoh R. Radel, and Christohe R. Radel, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Stefan Van Jura, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Stefan Van Jura, of counsel and on the brief).
Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Deborah Bartolomey, of counsel and on the brief).
Before Judges Fisher, Moynihan and Gummer.
The opinion of the court was delivered by
FISHER, P.J.A.D.
After being indicted and charged with numerous weapons and drug offenses, defendant moved in the trial court for the suppression of evidence seized from his home. The evidence – guns, ammunition, drugs, and drug paraphernalia – was seized pursuant to a search warrant supported by information police had obtained during a warrantless entry into defendant's home. The State persuaded the trial judge that the warrantless entry did not run afoul of the Fourth Amendment because the police were justified in conducting a protective sweep. Because the evidence and the judge's findings do not support that conclusion, we vacate the order denying suppression and remand for further proceedings. In light of this disposition, we find it unnecessary at this time to consider the other issues defendant raised in this appeal.
The record reveals that after the judge's denial of defendant's suppression motion, defendant reached a plea agreement with the State and entered a conditional guilty plea to one count of second-degree being a certain person not permitted to possess weapons, N.J.S.A. 2C:39-7(b)(1), and one count of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1). As part of the plea agreement, the State dismissed the other eighty-six counts of the indictment. Defendant was later sentenced, within the plea agreement's parameters, to a ten-year prison term, subject to a five-year period of parole ineligibility, on the certain-persons conviction and a fifteen-year prison term, subject to a seven-and-one-half-year period of parole ineligibility, on the unlawful-possession-of-a-weapon conviction; both terms were ordered to run consecutively.
Defendant appeals, arguing:
We agree with defendant that the police were not entitled to conduct a protective sweep under the circumstances. For that reason, we vacate the order denying the suppression motion and remand for further proceedings without reaching or deciding the other four issues.1
Three police officers and defendant testified at the suppression hearing. The State's evidence revealed that police interest in defendant started with an assistant prosecutor's January 7, 2016 call to local police about an October 27, 2015 order, which apparently sprang from defendant's March 2015 conviction for unlawful possession of a weapon. The order directed "members of Little Falls Police Department [to] respond to the [d]efendant's home, located at 103 Browertown Road [, Little Falls] ... for the limited purpose of retrieving from said home any and all firearms, including one Beretta [handgun]." One of the officers testified that after the phone call from the prosecutor's office he did some research and learned defendant was the target of two outstanding municipal arrest warrants. He also learned that defendant lived at 81 Browertown Road, not 103 Browertown Road where his parents lived. The officer called and briefly spoke to defendant's mother, who, the officer asserted, wasn't helpful in assisting his attempts to get in touch with defendant.
The police assembled a team of six officers for the purpose of going to defendant's neighborhood and arresting him on the outstanding municipal arrest warrants. 81 Browertown and 103 Browertown are on the same side of the street and separated by a driveway that runs off Browertown and into a Passaic Valley High School parking lot. The officers were stationed around the premises; some watched the backs of the homes, and others sat in the driveway to the high school between 81 and 103 Browertown. Before long, one officer noticed a figure in blue in the backyard of 81 Browertown entering the rear of that home; that officer also heard a "loud bang." Within a few minutes, other officers saw a person, who matched their photos of defendant, wearing a blue jacket as he exited the front door of 81 Browertown carrying a laundry basket. As defendant placed the laundry basket in the backseat of a vehicle parked in the driveway, an officer – in his words – was "on" him, seizing defendant and placing him face down as he applied handcuffs. Defendant did not resist. Once defendant was in custody, the police concluded a protective sweep of 81 Browertown was necessary out of a concern there might be others inside, along with the handgun they had come to retrieve.
After entering the dwelling at 81 Browertown, police observed in plain sight a black handgun in a glass cabinet, a ballistics vest, and drug paraphernalia. No other person was inside. Some officers then left to seek out a search warrant while others remained behind to secure the premises until the warrant was obtained. A judge issued a search warrant and the subsequent search led to the seizure of weapons and other evidence that were the subject of defendant's unsuccessful suppression motion. The linchpin of the judge's denial of the motion was his finding that the officers engaged in a legitimate protective sweep of 81 Browertown.
In considering defendant's argument about the challenged protective sweep, we start with broad principles. The Fourth Amendment protects individuals from unreasonable searches and seizures, and "the chief evil against which the wording of the Fourth Amendment is directed" is an unwarranted physical intrusion into the home. United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). So, the officers' entry into 81 Browertown after defendant's arrest outside was presumptively unlawful absent the State's demonstration that the entry fell into one of the specific exceptions acknowledged by the Supreme Court of the United States. State v. Davila, 203 N.J. 97, 111-12, 999 A.2d 1116 (2010). The only exception argued by the State was based on the protective-sweep doctrine.
Despite Buie's declaration that the search of the premises must be "incident to an arrest," ibid., our Supreme Court has recognized that this doctrine has been "extended," State v. Bryant, 227 N.J. 60, 70, 148 A.3d 398 (2016), and the warrantless sweep is permitted, when:
Even though a protective sweep does not have to be "incident to an arrest," Buie and Davila presuppose that law enforcement officers who believe themselves or others in potential danger would actually be in the premises or location to be swept.
In both cases, officers were properly inside the defendant's home either to execute an arrest warrant or by consent, thus presenting the heightened concern for their safety that the protective-sweep doctrine requires.
This case differs. No one disputes that defendant was outside his home, under arrest, and in handcuffs before police made the decision to enter his home, ostensibly for their protection. Despite this distinguishing fact, the judge found that Davila's first prong "can be extended to the circumstances of this case" and he then justified that extension by reference to facts he found supportive of the second prong. We reject the judge's legal analysis.
The first prong requires that the officers have a legitimate purpose for being within the private area to be swept. The officers were in the vicinity to either obtain the handgun described in the October 27 forfeiture order or to execute the municipal warrants calling for defendant's arrest. The October 27 order only directed them to 103 Browertown, not 81 Browertown; it did not explicitly authorize a search of the former, let alone the latter. And, the municipal...
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State v. Radel
...trial judges presiding over those cases denied defendants’ motions to suppress the evidence uncovered during the protective sweeps. In the Radel case, the Appellate Division reversed, finding that the protective sweep did not pass constitutional muster. In the Terres case, the Appellate Div......