State v. Rice
| Decision Date | 10 October 1991 |
| Citation | 251 N.J.Super. 136,597 A.2d 555 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. William B. RICE, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Wilfredo Caraballo, Public Defender, for defendant-appellant (Alan Flexer, Designated Counsel, of counsel and on the brief).
Robert J. Del Tufo, Atty. Gen., for plaintiff-respondent (Arthur S. Safir, Deputy Atty. Gen., of counsel and on the letter brief).
Before Judges PRESSLER, SKILLMAN and D'ANNUNZIO.
The opinion of the court was delivered by
D'ANNUNZIO, J.A.D.
Tried by a jury under Essex County Indictment No. 3016-9-88, defendant was convicted of possession of cocaine and possession of cocaine with intent to distribute it. The trial court sentenced defendant to three years imprisonment for possession with intent to distribute, into which the charge of simple possession was merged. Defendant now appeals contending that the trial court erred in denying his motion to suppress evidence and that his sentence was manifestly excessive. We now reverse the conviction.
Anthony Ricci, an Essex County Sheriff's Officer on loan to the prosecutor's office, was the sole witness at the suppression hearing. He testified that before 1:00 p.m. on June 8, 1988, the prosecutor's office received an anonymous tip that drugs were being sold out of 50 Oraton Street. Ricci and two other officers immediately went to the scene and placed the house under surveillance. They were not in uniform. Ricci observed a male approach the house and enter a screened vestibule-porch. A door to the interior of the house opened for approximately one minute and thereafter the male left the premises. Ricci and the State contend that what Ricci observed was a drug transaction. It is clear, however, that Ricci never saw anything pass from the person in the house to the male who was standing on the porch. Ricci and the State contend that the visiting male took currency from his pocket, giving it to the person within the house. However, the uncertain and equivocal nature of Ricci's testimony is revealed by the following excerpt:
Like I stated before, I observed a black male entering the house, apparently going into his pocket, taking apparently what appeared to be some currency out. Went through the first door, knocked on the second door like a transaction or something transpired. He just turned and walked back out.
Subsequently, Ricci also observed a couple, a male and a female, enter the house and leave shortly thereafter. Nothing else was observed regarding that couple.
After the couple left the house, the police decided to investigate more closely. They walked up to the house and knocked on the door. When the door was opened they announced they were the police. According to Ricci, he heard scurrying inside the house and someone shout police. Contemporaneously a person inside attempted to push the door closed. Ricci and his partners pushed the door open, entered the house, found drugs in an upstairs sewing room and made arrests.
The motion judge determined that the anonymous tip, the surveillance which revealed activity consistent with drug trafficking and "that additional furtive conduct or activity ... on behalf of the defendants" when they reacted to the presence of police at the door, constituted probable cause. Relying on State v. Royal, 115 N.J.Super. 439, 280 A.2d 201 (App.Div.1971), certif. denied, 59 N.J. 294, 281 A.2d 807 (1971), and State v. Boswell, 115 N.J.Super. 253, 279 A.2d 125 (App.Div.1971), the motion judge denied the motion to suppress. The judge did not address the issue of exigent circumstances. See State v. Hutchins, 116 N.J. 457, 561 A.2d 1142 (1989).
On appeal, defendant contends that the police lacked probable cause and, even if probable cause existed, exigent circumstances did not exist to justify a warrantless entry.
We observe at the outset that Royal and Boswell are distinguishable from the present case. Both cases involved actual flight by the premises' inhabitants. In Royal, "two or three individuals ran out of the back of the house and fled over a fence in the rear yard." 115 N.J.Super. at 441, 280 A.2d 201. In Boswell, defendant "ran back into the building, down the stairs and into the basement." 115 N.J.Super. at 255, 279 A.2d 125. Moreover, neither Royal or Boswell involved an attempt to bar the police from entering the premises by closing the door.
The police did not have probable cause to believe that drugs were being sold from 50 Oraton Street when they approached the house and knocked on the door. Their information at that time was limited to an anonymous telephone tip and the visits to the house by a couple and an unaccompanied male. The police observed no exchange between the visitors and occupants of the house. Recognizing the lack of probable cause up to the knock on the door, the motion judge found that the occupants' reaction to the announced police presence provided additional information which ripened reasonable suspicion into probable cause. According to the motion judge, "occupants inside began fleeing, yelling police and attempting to close the door to prevent any entry." We note that the trial court incorrectly determined that the occupants "began fleeing" when Ricci identified himself as a policeman. Ricci testified that "there was a little scurry in the back." There was no evidence of flight as in Royal and Boswell, and the word scurry is too general to have much probative significance. Cf. State v. Lund, 119 N.J. 35, 47, 573 A.2d 1376 (1990) (). We suggest that the presence of three policemen at their threshold would excite many innocent occupants of a residence. Cf. State v. Schlosser, 774 P.2d 1132, 1137 (Utah 1989) ().
Warrantless searches are prima facie invalid. The present case involves police entry of a private residence, the protection of which is at "the very core" of the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734, 739 (1961) (). Recently, in State v. Hutchins, 116 N.J. 457, 561 A.2d 1142 (1989), our Supreme Court emphasized the privileged position of the home.
In State v. Bolte, 115 N.J. 579 (1989), a case involving application of the exigent circumstances exception to a warrantless entry into the home of a defendant suspected of various motor vehicle offenses, we recently reiterated the principle that "warrantless searches or arrests in the home must be subjected to particularly careful scrutiny." Id. at 583 . 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, 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), and hence "prohibited by the Fourth Amendment, absent probable cause and exigent circumstances." Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 743 (1984).
Id. at 462-463, 561 A.2d 1142.
The narrow issue in the present case is whether the occupants' attempt to bar the police by closing the door may provide the missing ingredient to convert suspicion into probable cause. We conclude that in the circumstances of this case it may not.
In Tompkins v. Superior Court, 59 Cal.2d 65, 378 P.2d 113, 27 Cal.Rptr. 889 (1963), the San Francisco Police Department had grounds to suspect Tompkins' involvement in drug trafficking. Inspector Martin went to Tompkins' apartment without a warrant to arrest or search. When Martin identified himself as a police officer, Tompkins "made a motion with his arm to the left and slammed the door shut." Id., at 67, 378 P.2d at 115, 27 Cal.Rptr. at 891. Martin kicked in the door, entered the apartment and observed drug contraband.
The California Supreme Court reversed the denial of Tompkins' motion to suppress the evidence. In an opinion by Justice Traynor, the Court recognized the anomaly inherent in allowing the assertion of a constitutional right to provide the basis for abrogation of that right.
Petitioner's apparent motioning of someone away from the door and closing it in Inspector Martin's face did not provide the missing elements of reasonable cause to believe that petitioner was guilty of a felony. There are many reasons other than guilt of a felony why an occupant of an apartment may not wish himself or others present exposed to the immediate view of a stranger, even if the stranger is a police officer. If refusal of permission to enter could convert mere suspicion of crime into probable cause to arrest the occupant and search his home, such suspicion alone would become the test of the right to enter, and the right to be free from unreasonable police intrusions would be vitiated by its mere assertion. Although hindsight indicates that petitioner's motive in closing the door was to conceal evidence of guilt, Inspector Martin had no reasonable cause so to believe until he kicked the door open. It is settled, however, that a search cannot be justified by what it turns up.
Ibid. See also People v. Gaines, 265 Cal.App.2d 642, 71 Cal.Rptr. 468 (1968), cert. denied, 394 U.S. 935, 89 S.Ct. 1212, 22 L.Ed.2d 467 (1969) (); People...
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State v. Berlow
...in allowing the assertion of a constitutional right to provide the basis for abrogation of that right." State v. Rice, 251 N.J.Super. 136, 140-41, 597 A.2d 555 (App.Div.1991). The State argues that public safety considerations require that citizens not have the ability to impede police offi......