State v. Smith

Decision Date16 July 1998
Citation713 A.2d 1033,155 N.J. 83
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Shawn SMITH, Defendant-Appellant.
CourtNew Jersey Supreme Court

Mark H. Friedman, Assistant Deputy Public Defender, for defendant-appellant (Ivelisse Torres, Public Defender, attorney).

Frank Muroski, Assistant Prosecutor, for plaintiff-respondent (Thomas V. Manahan, Union County Prosecutor, attorney).

Leslie Stolbof Sinemus, South Orange, for amicus curiae Association of Criminal Defense Lawyers-New Jersey.

Gerard C. Sims, Jr., Deputy Attorney General, for amicus curiae Attorney General of New Jersey (Peter Verniero, Attorney General, attorney).

The opinion of the Court was delivered by

HANDLER, J.

This is a search and seizure case. In this case, and in State v. Zutic, 155 N.J. 103, 713 A.2d 1043 (1998), also decided today, the central issue is whether incriminating evidence that was used to secure a defendant's conviction for drug offenses was obtained as the result of an unreasonable warrantless search of the defendant's person. The more specific issue is whether a confidential informant's tip, together with some corroboration of the information contained in the tip, established probable cause to justify the search of defendant's person. An additional issue relates to whether the ultimate seizure of the incriminating drugs was tainted by the initial personal search of defendant without probable cause.

I

On February 23, 1993, a confidential informant told Detective Robert Hilongos, an experienced member of the Narcotics Bureau of the Elizabeth Police Department, that a man was selling drugs in the lobby of the Oakwood Plaza Apartments, located at 400 Ivington Avenue in Elizabeth. The informant described the man as a black man wearing a three-quarter length jacket and a yellow cap. The informant said the man was taking orders from people in the lobby and then retrieving drugs from apartment # 2L. The informant also said that the man was using a red Datsun parked across the street with license plate number HIO 33D.

Hilongos knew the informant and believed him to be reliable. The informant had done "one job" for Hilongos in the past, and the informant's information resulted in an arrest and conviction. A few minutes after receiving the tip, Hilongos and two other police officers proceeded to Oakwood Plaza in an unmarked vehicle. Two uniformed officers were also called to the scene. Upon arrival, Hilongos saw a black man wearing a three-quarter length black coat and a yellow cap and standing on the sidewalk approximately fifty or sixty feet from the lobby entrance. There was a red Datsun parked across the street from the apartments, but Hilongos could not remember if he saw the car before or after stopping defendant.

Hilongos stopped and searched the man who was later identified as defendant, Shawn Smith. He seized a pair of keys from defendant. Hilongos testified that he was searching for drugs and that he knew the keys were not a weapon. None of the keys were imprinted with an apartment number or any other distinguishing marks. When asked what he was doing in the area, defendant told Hilongos that he lived in Newark but was visiting relatives in the area. Hilongos testified that he did not attempt to conduct surveillance or otherwise verify the informant's tip because it was impracticable.

After seizing the keys, Hilongos had the two uniformed officers detain defendant while he went upstairs and knocked on apartment # 2L. He also called the apartment manager, Kathy Ryan, to the scene. While waiting for Ryan, Hilongos knocked on the door to # 2L, but no one answered. A neighbor, Andrea Smith, informed Hilongos that someone named Stacy Walker lived in the apartment but Walker was in the hospital. According to Hilongos's testimony, Andrea Smith told him that Walker was her sister and defendant was her brother. Andrea Smith testified, however, that defendant is not related to her.

Either Andrea Smith or another neighbor, Patricia Wright, called Walker at the hospital. The phone was passed from Smith to Ryan and then to Hilongos. Eventually, Walker gave Hilongos permission to enter the apartment. Ryan testified that she "told [Walker] that the cops wanted to get into her unit because apparently they had somebody that had keys or something to her unit." Hilongos testified that he could not remember if he told Walker that she had a right to refuse permission to enter the apartment. Walker testified that Ryan told her that police needed access to Walker's apartment and they wanted permission to enter the apartment. Ryan advised Walker that she had a right to refuse access to her apartment, but warned Walker that her refusal would cause the police to obtain a search warrant and "if the police had to get a warrant to get in, [Walker] would be responsible for damages because normally they break the door." Walker testified that the police told her that they needed to enter her apartment to retrieve defendant's wallet.

Ryan and Andrea Smith described Walker, who was pregnant and was hospitalized because of high blood pressure, as being "upset," "crying," and "hysterical" during their telephone conversations with her. Andrea Smith testified that "[Ryan] was trying to calm her down and I heard her telling Stacy something to the effect, no, you're not going to lose your apartment and you have nothing to worry about and you don't have to let them go into the house." Walker gave Hilongos permission to enter her apartment after Ryan assured her that she would not be evicted.

After Walker consented to the entry, Hilongos entered apartment # 2L by using one of the keys he had seized from defendant. The police found inside the refrigerator a plastic bag containing fifty-nine vials of what looked like cocaine. Hilongos then "notified the officers that were holding [defendant] to place him under arrest."

On July 1, 1993, a Union County Grand Jury indicted defendant, charging him with third degree possession of a controlled dangerous substance (CDS) (count one), third degree possession of a CDS with intent to distribute (count two), and third degree possession of a CDS with intent to distribute within 1000 feet of a school (count three).

The trial court denied defendant's motion to suppress the keys and the cocaine. The court held that whereas the seizure of the keys was unlawful, the discovery of the cocaine was lawfully based on Walker's consent. The court held that once the cocaine was discovered, the keys would have inevitably been discovered. Therefore, the court denied the suppression motion in respect of both the keys and the cocaine. After losing the suppression motion, defendant pled guilty.

Defendant appealed the denial of his motion to suppress, and the Appellate Division affirmed. 291 N.J.Super. 245, 677 A.2d 250 (1996). The Appellate Division ruled that the search of defendant was justified by probable cause to arrest him. Id. at 258, 677 A.2d 250. The court sustained the search of the apartment based on Walker's consent. Ibid. In the alternative, the court held that defendant had no expectation of privacy in the apartment to support a claim that the search violated his constitutional rights. Id. at 261, 677 A.2d 250. We granted certification on March 4, 1997. 149 N.J. 33, 692 A.2d 47.

II

Our analysis of Smith's suppression motion begins with a consideration of whether the on-the-street search which yielded the keys was constitutional. Probable cause is ordinarily needed in order to justify a search. See State v. Novembrino, 105 N.J. 95, 106, 519 A.2d 820 (1987) ("The probable-cause requirement is the constitutionally-prescribed standard for distinguishing unreasonable searches from those that can be tolerated in a free society."). The State's constitutional standard parallels that of the United States Constitution. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L. Ed.2d 419, 428 (1970) ("In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.").

In limited circumstances, police may conduct a protective search of a suspect without probable cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889 (1968). A protective search does not entail a general search of the person for evidence of crime; rather it is "designed to discover weapons that could be used to assault the officer." State v. Arthur, 149 N.J. 1, 14, 691 A.2d 808 (1997). A protective search may be based on reasonable articulable suspicion that a suspect is armed and dangerous. Ibid. Hilongos's search of defendant was for contraband and not for weapons; thus, the protective search exception to probable cause does not apply, and probable cause was required to justify the search of defendant.

The Appellate Division held that Hilongos had probable cause that served as a basis for Smith's arrest and, therefore, the ensuing personal search of Smith was undertaken as an incident to that arrest. 291 N.J.Super. at 258, 677 A.2d 250. However, the police must have contemporaneous subjective intent to arrest in order to justify a search incident to arrest. State v. Sims, 75 N.J. 337, 353, 382 A.2d 638 (1978). There is no evidence that Hilongos had a subjective intent to arrest Smith when he stopped and subjected him to a search. Nonetheless, because probable cause to arrest is the functional equivalent of probable cause to search, the test for determining probable cause must still be met. The basic issue, therefore, was whether there was probable cause to justify the personal search of defendant.

Hilongos's suspicions were primarily based on a tip from a confidential informant. Information related by informants may constitute a basis for probable cause. Such information, though hearsay, may provide a sufficient basis for probable cause, "so...

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