Opinion
DOCKET NO. A-5382-13T1
03-17-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PAGE L. FORTH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-05-1288. Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Page L. Forth pled guilty and received a suspended sentence. She appeals the denial of her motion to suppress marijuana found during a warrantless sweep of her home, which the trial court found was justified by an objectively reasonable emergency. We affirm.
I.
The following facts were elicited at the suppression hearing. On November 30, 2012, defendant called 9-1-1 seeking assistance because she had tried to take her own life by ingesting numerous prescription pills. Lieutenant Robert Rubino, Officer George O'Donoghue, and Sergeant William Hoffman responded. Upon arriving at defendant's home, the officers knocked on the front door and announced their presence, opened the door, and entered the home.
Upon entering, the officers observed defendant passed out on the living room couch. When the officers aroused defendant and asked her basic questions, such as her name and date of birth, she had trouble responding because she was slipping in and out of consciousness and was grasping at her stomach in pain. The officers asked what pills she had taken. Defendant said "over there on the [kitchen] floor," where the officers observed at least two or three empty prescription bottles.
In addition, the officers observed marijuana and a glass pipe with marijuana residue on the coffee table, and smelled a strong odor of marijuana. When Lieutenant Rubino told defendant that the house smelled of marijuana, she responded "that's a good possibility." Rubino believed, based on his training and experience and on what he observed, heard, and smelled in the home, that defendant had smoked marijuana shortly before the officers arrived. Soon thereafter, an ambulance arrived with emergency medical technicians (EMTs). The EMTs took the empty prescription bottles, put defendant on a stretcher and into the ambulance, and left the scene.
After defendant was taken away, Lieutenant Rubino observed a stuffed animal and several framed photographs of children in the living room of defendant's home. The pictures depicted young children as well as teenagers. Based on these observations, Rubino thought children might be in the house, so he and the other officers conducted a "protective sweep" of the residence to ensure that no young children were left alone or hurt, and that no children would be coming home to an empty house.
In looking for children, none of the officers opened any drawers or cabinets, looked under furniture, opened any locked doors, or seized any items from the home. Instead, they looked in rooms and a linen closet. In one of the bedrooms, Officer O'Donoghue found a "bong" in plain view. In an "office" with a white sheet hanging in the middle of the room, O'Donoghue and Lieutenant Rubino observed marijuana plants and two bags containing what appeared to be dried marijuana.
Lieutenant Rubino then called a detective. The detective applied for and obtained a warrant to search the premises and seize any drugs or drug paraphernalia.
Later, other officers executed the warrant and seized a total of seven pounds of marijuana, ten marijuana plants, marijuana seeds, grow lights, horticultural supplies, a marijuana grinder, empty plastic bags, empty pill containers, and a prescription bottle containing Prozac pills.
Defendant was charged with first-degree maintaining and operating a controlled dangerous substance (CDS) production facility, N.J.S.A. 2C:35-4; second-degree possession of more than five pounds of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(10)(b); third-degree possession of marijuana with intent to distribute in a school zone, N.J.S.A. 2C:35-7; and fourth-degree possession of 50 grams of marijuana, N.J.S.A. 2C:35-10(a)(3).
Judge Bernard E. DeLury, Jr. held a hearing on defendant's motion to suppress. All three officers testified. In its September 25, 2013 written opinion, the trial court found that the State "demonstrated an 'objectively reasonable emergency' situation [was] underway at the time that the officers swept the premises," that the officers "were concerned that children may have been present," and that "the emergency continued until the officers were able to assure themselves that there were no other persons at immediate risk of harm." The court concluded that "the police acted entirely reasonable to quickly check the premises," and that "the evidence later obtained pursuant to the search warrant is entirely admissible." The court denied defendant's motion to suppress in an October 8, 2013 order.
Defendant then entered into a plea agreement under which she pled guilty to second-degree manufacturing more than five pounds of marijuana, N.J.S.A. 2C:35-5(a)(1) and (b)(10)(b), with a recommendation that it be sentenced as a third-degree offense, resulting in probation or a suspended sentence. The trial court imposed a two-year suspended sentence.
II.
Defendant appeals her judgment of conviction dated April 1, 2014, arguing:
THE WARRANTLESS SEARCH OF MS. FORTH'S APARTMENT WAS NOT JUSTIFIED UNDER THE EMERGENCY-AID EXCEPTION TO THE WARRANT REQUIREMENT AND DID NOT FALL WITHIN ANY OTHER EXCEPTION. THEREFORE, THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.
We must hew to our standard of review. An appellate court is "bound to uphold a trial court's factual findings in a motion to suppress provided those 'findings are supported by sufficient credible evidence in the record.'" State v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). "Deference to those findings is particularly appropriate when the trial court has the 'opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Elders, supra, 192 N.J. at 244). "Nevertheless, we are not required to accept findings that are 'clearly mistaken' based on our independent review of the record." Ibid. (quoting Elders, supra, 192 N.J. at 244). "We owe no deference to a trial . . . court's interpretation of the law, and therefore our review of legal matters is de novo." State v. Hathaway, 222 N.J. 453, 467 (2015).
III.
The Fourth Amendment of the United States Constitution, and Article I, Paragraph 7 of the New Jersey Constitution, both provide that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," and that no warrants shall issue except upon probable cause. U.S. Const. amend. IV; N.J. Const. art. 1, par. 7. "Our constitutional jurisprudence expresses a clear preference for government officials to obtain a warrant issued by a neutral and detached judicial officer before executing a search." State v. Edmonds, 211 N.J. 117, 129 (2012). Moreover, "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." State v. Vargas, 213 N.J. 301, 313 (2013) (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)). "Thus, '[w]arrantless searches, particularly in a home, are presumptively unreasonable' and 'must be subjected to particularly careful scrutiny.'" Edmonds, supra, 211 N.J. at 129 (citation omitted). "Because a warrantless search is presumptively invalid, the State must establish that such a search was justified by one of the 'few specifically established and well-delineated exceptions' to the warrant requirement." Id. at 130 (citation omitted).
The exceptions to the warrant requirement include the emergency-aid and community-caretaking doctrines. Hathaway, supra, 222 N.J. at 468; State v. Keaton, 222 N.J. 438, 452 (2015). Under the community caretaking doctrine,
[c]ourts have allowed warrantless searches . . . when police officers have acted not in their law enforcement or criminal investigatory role, but rather in a community caretaking function. In today's society, police officers perform "dual roles." On the one hand, they carry out traditional law enforcement functions, such as investigating crimes and arresting perpetrators. On the other hand, police
officers perform a wide range of social services, such as aiding those in danger of harm, preserving property, and "creat[ing] and maintain[ing] a feeling of security in the community."
[State v. Bogan, 200 N.J. 61, 73 (2009) (citations omitted).]
In Vargas, supra, our Supreme Court rejected the idea "that the community-caretaking doctrine permits the warrantless entry into or search of a home in the absence of some form of exigent circumstances" or "objectively reasonable emergency." 213 N.J. at 305, 321. However, the Court made clear that "[p]olice officers serving in a community-caretaking role are empowered to make a warrantless entry into a home under the emergency-aid exception to the warrant requirement." Id. at 323 (citations omitted). "'The emergency aid doctrine is derived from the common sense understanding that exigent circumstances may require public safety officials, such as the police, firefighters, or paramedics, to enter a dwelling without a warrant for the purpose of protecting or preserving life, or preventing serious injury.'" Hathaway, supra, 222 N.J. at 469 (quoting State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)) (emphasis in original).
Our Supreme Court has developed and applied "a two-prong test" that considers "the totality of the circumstances" in determining if the emergency-aid doctrine justifies a warrantless search of a home. Hathaway, supra, 222 N.J. at 470, 474. The State has the burden to show that
(1) the officer had an objectively reasonable basis to believe that an emergency require[d] that he provide immediate assistance to protect or preserve life, or to prevent serious injury, and (2) there was a reasonable nexus between the emergency and the area or places to be searched.
[Id. at 470 (quoting Edmonds, supra, 211 N.J. at 132)].
Defendant does not dispute that the police and the EMTs had an objectively reasonable basis to believe that an emergency required their entry into her home to provide immediate assistance to preserve her life. Indeed, defendant called 9-1-1 and summoned the police to her home to provide assistance because she had ingested numerous prescription medications. When the officers arrived, defendant was clearly in need of swift medical attention. See State v. Reece, 222 N.J. 154, 169 (2015) (finding 9-1-1 call justified entry of a residence under the emergency-aid doctrine); Frankel, supra, 179 N.J. at 604 (same).
Nor does defendant contest there was a nexus between that emergency and the officers' presence with her in her living room. It is undisputed that while there, the officers properly observed in plain sight the prescription bottles, marijuana, and glass pipe, as well as the photographs of children and the stuffed animal. See Texas v. Brown, 460 U.S. 730, 738 n.4, 103 S. Ct. 1535, 1541 n.4, 75 L. Ed. 2d 502, 511 n.4 (1983) (plurality opinion); accord Horton v. California, 496 U.S. 128, 133 n.5, 110 S. Ct. 2301, 2306 n.5, 110 L. Ed. 2d 112, 121 n.5 (1990). Moreover, it is uncontested that the officers properly smelled the odor of marijuana, and asked defendant about it.
Based on all of that information, the officers had an objectively reasonable basis to believe that there were illegal and possibly dangerous drugs in the home, that one or more children might be present in the home, and that any children present would be unattended because the suicidal defendant would be hospitalized.
The police have a duty "to protect[] the welfare of children" and "to safeguard children from harm." Bogan, supra, 200 N.J. at 75. In Edmonds, supra, our Supreme Court ruled that the emergency-aid doctrine gave police officers who had received a report of domestic violence against a spouse the right "to enter the home to ensure [the] safety" of [a child allegedly present], and "a duty to ensure that [the child] was safe." 211 N.J. at 138, 140. In Bogan, supra, the Court similarly ruled that an officer who encountered a child "who inexplicably was not in school and was purportedly alone in an apartment where a suspected crime had occurred" had "a right to step into the apartment" and "an immediate duty to ensure [the child's] safety." 200 N.J. at 64-65, 79. The Court in Bogan cited with approval our decision in State v. Garland, 270 N.J. Super. 31, 44-46 (App. Div.), certif. denied, 136 N.J. 296 (1994), where we held that police officers with information that two children had been left alone in a room at a motel known for prostitution could enter the motel room under the emergency-aid doctrine "for the purpose of ascertaining the whereabouts and condition of the children." Ibid.
The Court in Bogan "saw no need to address the applicability of the emergency-aid" doctrine because it relied on the community caretaking doctrine. Vargas, supra, 213 N.J. at 320 (citing Bogan, supra, 200 N.J. at 80). However, nothing in Vargas suggested the search in Bogan would not have been similarly justified under the emergency-aid doctrine. See id. at 319-20; cf. id. at 321 ("expressly disapprov[ing]" language in State v. Kaltner, 420 N.J. Super. 524 (App. Div. 2011), aff'd o.b., 210 N.J. 114 (2012)).
Thus, the police have a role "to protect the welfare of a child, especially one alone and unattended who might be in danger of imminent harm." Vargas, supra, 213 N.J. at 319-20 (citing Bogan, supra, 200 N.J. at 75-76). "It is well-recognized that leaving children unattended may constitute a significant threat to their safety and welfare." Bogan, supra, 200 N.J. at 76. Moreover, "it is generally recognized that the emergency aid doctrine applies where police officers have reason to believe that unattended children require their assistance." Garland, supra, 270 N.J. Super. at 44.
Here, the police officers were in a home where an attempted suicide had just occurred and illegal and dangerous drugs were present. They observed numerous pictures of children and a stuffed animal which gave them an objectively reasonable basis to believe that children may be present and may be in danger of being left unattended and in imminent harm. It was the officers' duty to ensure the children were not left in the home unattended, particularly with illegal and dangerous drugs lying about. Thus, under the emergency-aid doctrine, the officers properly looked through the home to safeguard any children present. See State v. Angelos, 936 P.2d 52, 53-54 (Wash. Ct. App. 1997), certif. denied, 950 P.2d 478 (Wash. 1998) (finding a police officer lawfully searched a home to prevent three unattended children from accidentally ingesting cocaine while their mother was taken to the hospital for an overdose).
Defendant complains that the officers did not first ask her if anyone else was in the home. However, Lieutenant Rubino testified he did not notice the stuffed animal and photos of children until after defendant was taken away by the EMTs. In any event, defendant was slipping in and out of consciousness, was having trouble answering questions, and was suffering from a medical emergency. The trial court found that "[d]efendant was an extremely poor and unreliable informant," and that "the police would have acted unreasonably and even recklessly" had they merely asked defendant if there were children in the house without looking for themselves.
Defendant asserts there was no reasonable basis to believe a child was in the home because the stuffed animal was not within the reach of a child, there was no indication the pictures were of persons who lived there, and the officers heard no sounds of another person in the home. However, "[t]he emergency aid doctrine only requires that public safety officials possess an objectively reasonable basis to believe — not certitude — that there is a danger and need for prompt action." Hathaway, supra, 222 N.J. at 470 (quoting Frankel, supra, 179 N.J. at 599). "The reasonableness of a decision to act in response to a perceived danger in real time does not depend on whether it is later determined that the danger actually existed." Ibid.
Defendant argues that less drastic means could have been used to find if any children were in the residence, such as calling out or asking the neighbors if a child lived there. Calling out would not have worked if a child could not hear the call or was unable to respond. Even if the neighbors were home and responded to police inquiry, they may not be aware of who lived in defendant's house, let alone who might be present with defendant. In any event, "[w]hen determining the propriety of a warrantless seizure, '[t]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'" State v. O'Donnell, 203 N.J. 160, 162 (2010) (quoting Bogan, supra, 200 N.J. at 81), cert. denied, 562 U.S. 1094, 131 S. Ct. 803, L. Ed. 2d 537 (2010).
Defendant asserts that the police "conjure[d] up" and "exploited" the concern that a child may be in the home as an excuse to search the home for marijuana, and that Lieutenant "Rubino was less than forthcoming" in saying they were looking for children rather than searching for drugs. However, the trial court found that Rubino "was very credible and reliable." It found that the officers "had no 'ulterior motive' to search for contraband" but were "simply looking for the presence of other people, particularly children." In any event, our courts do not consider the subjective motivation of an officer in conducting a warrantless search under the emergency-aid doctrine, but instead apply an objective standard. Reece, supra, 222 N.J. at 168; Edmonds, supra, 211 N.J. at 131-34.
Moreover, the second prong of the emergency-aid doctrine test was met because "'there was a reasonable nexus between the emergency and the area or places to be searched.'" Hathaway, supra, 222 N.J. at 470. The officers conducted a narrow search of only locations in which children could be found, such as bedrooms and an office. They did "not extend their search to small compartments such as 'drawers, cupboards, or wastepaper baskets.'" Id. at 470 (quoting Frankel, supra, 179 N.J. at 599).
While appropriately sweeping the rooms looking for children, the officers saw marijuana and paraphernalia in plain sight. Where "contraband is 'observed in plain view by a public safety official who is lawfully on the premises and is not exceeding the scope of the search,' that evidence will be admissible." Id. at 470 (quoting Frankel, supra, 179 N.J. at 599-600). Seeing the marijuana plants and dried marijuana in plain sight gave the police probable cause to obtain the search warrant, under which the officers properly seized the drugs and paraphernalia. See id. at 478-79; Frankel, supra, 179 N.J. at 610; see also Bogan, supra, 200 N.J. at 79-89 & n. 10.
Thus, we need not address the State's other arguments why the search and the warrant were valid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION