Opinion
DOCKET NO. A-0756-10T3
12-16-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY WEBB, Defendant-Appellant.
Alan Dexter Bowman argued the cause for appellant. Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-10-03383.
Alan Dexter Bowman argued the cause for appellant.
Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief). PER CURIAM
Defendant Gregory Webb appeals from his August 20, 2010 conviction for second-degree possession of a controlled dangerous substance with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1, for which he was sentenced, as a third-degree offender, to three years probation conditioned on serving 364 days in the county jail. In the following point, defendant contends that the trial court erred in denying his motion to suppress evidence:
POINT I: THE COURT ERRED IN REFUSING TO SUPPRESS ALL OF THE EVIDENCE SEIZED AS A PRODUCT OF THE CLEARLY UNREASONABLE WARRANTLESS ENTRY AND SEARCH OF THE THIRD PARTY DWELLING.Finding no basis to disturb the trial court's decision, which was cogently explained in Judge John T. Kelley's July 10, 2009 oral opinion, we affirm.
I
This was the most pertinent evidence introduced at the suppression hearing. The State's first witness was Investigator Jerome Scott of the Department of Corrections Fugitive Unit. He had extensive experience in apprehending fugitives and executing arrest warrants at residences. On April 10, 2008, he was assigned to apprehend Michael Webb, an escapee for whom Scott had an arrest warrant. Because Ashante Johnson was on Michael's visitors list at the halfway house from which he had absconded, and she was also listed as his emergency contact, Scott went to Johnson's house in Camden to look for Michael.
We refer to the parties and witnesses by their last names, except for Michael Webb and Gregory Webb. We use their first names to avoid confusion
Scott had also received information that Johnson's boyfriend, Gregory Webb, who was Michael's nephew, might be at Johnson's house. The prior year, Scott had arrested Gregory, who was a suspect in a shooting. When Scott and several back-up officers went to Johnson's house in Camden, they wore body armor and took significant precautions for their safety. On approaching the house, Scott looked in the front window and saw a black male, whom he did not recognize, walking "from the front of the residence to the rear of the residence." He alerted his team that "there was someone on the first floor." Then he knocked on the front door.
At that point, the same person whom Scott had observed walking to the rear of the house appeared at the front door and opened it. At that moment, Scott recognized the person as Michael Webb. Michael "was startled" to see the police and "resisted[,] trying to close the door." When the police forced their way in the door, Michael "tried to resist apprehension." According to Scott, the officers were finally able to take him into custody in the "front living room area" of the house.
While they were apprehending Michael, they heard "a lot of people walking around" upstairs. Scott walked over to the stairs leading to the second floor and saw Gregory Webb "looking down the stairs." He ordered Gregory to come downstairs, but Gregory instead retreated further into the second floor, and Scott heard banging and knocking noises coming from upstairs. After being repeatedly ordered to come downstairs, Gregory finally complied, at which point the officers handcuffed him and searched him for weapons. During that search, they found "about $4000" in his pocket. Gregory told Scott that Johnson was upstairs, and she came downstairs after being ordered to do so.
Scott testified that, for their safety, the police needed to order Gregory to come downstairs instead of going up after him. He described the staircase as "a fatal funnel" and explained that if the police went up the stairs "anyone from either" of the upstairs rooms "could come down and do us harm" or could attack them from one upstairs room while they were in the other room. Once Johnson came downstairs, the police also arrested her, and then "did . . . a protective sweep to make sure that there was no other persons upstairs or any place in the house." Scott testified that during the protective sweep of the first floor, the officers found a duffle bag with a scale, a heating element, and drug paraphernalia. The duffle bag "was open" and "in plain view." They also found some ammunition in the kitchen.
Scott testified that the officers found a bag of drugs during a search of the upstairs. However, the judge suppressed this evidence because it was not found in plain view, and the State did not cross-appeal from that decision. Hence it requires no discussion here.
On cross-examination, Scott admitted that Michael had no criminal history of violence. However, he explained that escaped prisoners are "always considered armed and dangerous." Hence, the officers went to the Johnson house clothed in body armor and armed. They also believed there might be firearms in the house, because Gregory was a suspect in a shooting. He clarified that four officers entered the house to arrest Michael, while three other officers stayed outside to cover the front and rear entrances. He explained that once they subdued Michael, the officers needed to search the rest of the house to ensure there was no one else who could attack them while they were removing Michael. They knew there were other occupants but did not know if they were armed. It would not have been safe to take Michael to the police car and leave two officers in the house, without knowing who else was in the premises. He also did not necessarily believe Johnson and Gregory when they told him that there was no one else in the house.
The State also presented testimony from Sergeant Christopher Leone of the State Police, who participated in the arrest. He explained that anytime the police executed an arrest warrant at a house, they had "no idea who's in the house or . . . whether it's fortified, there's weapons involved, what escape routes they have." At the time he went to the Johnson house, Leone was also aware that Gregory Webb might be in the house, and that he had previously been arrested for a shooting. Leone described Michael's resistance and his efforts to subdue him, using a ballistics shield. Leone later used the shield to protect Scott at the foot of the stairs, as Scott was calling to Gregory to come down. After arresting the Webbs and Johnson, the officers secured the first floor for their safety, and then turned to securing the second floor.
In an oral opinion placed on the record immediately after the suppression hearing, Judge Kelley found the officers' testimony credible. Distinguishing State v. Miller, 342 N.J. Super. 474, 351 (App. Div 2000), in which the police entered a third party dwelling without knowing whether the defendant was inside, the judge found that in this case "the officers had an objectively reasonable belief that the defendant, Michael Webb, could be found at [the Camden house]." He noted that not only was Johnson on Michael's visitors list, but Michael's nephew Gregory was Johnson's boyfriend. Additionally, when they knocked on the front door, they recognized Michael as the person who opened the door. Once they identified Michael and he tried to slam the door, they officers acted "properly" in forcing their way into the house. He also found that it was necessary for the officers to enter the house in order to arrest Michael, and that the arrest in fact took place after a struggle in the living room. "Accordingly, the officers were properly inside the residence that time."
Relying on Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990), and State v. Lane, 393 N.J. Super. 132 (App. Div.), certif. denied, 192 N.J. 600 (2007), the judge accepted the officers' testimony that they were concerned for their safety and "that was the fundamental concern they had." He found the officers had a concern that someone else could have been hiding in the house and since "they were there properly executing the warrant" they also could conduct a protective sweep of the house for their own protection. He found that "it was necessary to go through the dining area to look into the kitchen, because, clearly, that is an area in which someone could be secreted and could provide a danger to the officers." He also concluded that, during such a sweep, the officers had the right to seize materials that they recognized as contraband, and which they saw in plain view in the kitchen and dining room.
The judge concluded that it was not clear whether the money in Gregory's pocket was found after the police found the other contraband. He did not consider the officers' right to arrest Gregory for harboring a fugitive, because the issue "wasn't raised." The judge, however, found that the officers would have conducted the protective sweep in any event, would have found the contraband in the dining room and kitchen, and then would have had probable cause to arrest everyone in the house. Once arrested, Gregory would have been searched for weapons incident to the arrest. Accordingly, the judge concluded that, under the doctrine of inevitable discovery, the evidence found in Gregory's pocket would not be suppressed.
II
Our review of the trial judge's decision on a motion to suppress is limited. We will not disturb the judge's factual findings so long as they are supported by sufficient credible evidence. State v. Davila, 203 N.J. 97, 109 (2010); State v. Elders, 192 N.J. 224, 243 (2007). Nor will we overturn the judge's decision unless his findings "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Judged by that standard, in light of this record, Judge Kelley's decision is legally correct, and we affirm substantially for the reasons stated in his opinion. We add the following comments.
Relying on State v. Miller, supra, and Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981), defendant argues that because Michael did not reside at Johnson's house and the police had no "reasonable anticipation" that Michael would be in the house, the police had no right to look for Michael there. He further argues that the police had no right to enter the house when Michael answered the door, because they had no right to knock on the door in the first place. He also argues that the police had no right to look in the front window of the house before knocking on the door. He further contends that, because the State's witnesses were not credible, there was no factual basis to conduct a protective sweep, and the sweep was also unlawful because the police were not lawfully inside the house. We find no merit in any of these contentions.
Defendant's arguments are premised on a misreading of Miller and Steagald. Those cases do not preclude the police from approaching and knocking on the door of a home in which they have reason to believe a suspect may be located. The issue in those cases was whether the police had the right to enter the dwellings.
In Steagald, the Supreme Court held that absent consent or exigent circumstance, the police must obtain a search warrant in order to legally enter and search a third party's home for the subject of an arrest warrant. 451 U.S. at 210, 101 S. Ct. at 1650, 68 L. Ed. 2d at 50. In that case, after receiving information that a suspect was living as a guest in a third party's house, the police forced their way into the third party's home without the owner's consent or a search warrant. The Court held that the search was invalid and evidence of the drugs found during that search must be suppressed.
In Miller we addressed "the nature and extent of knowledge an arresting officer must have regarding a suspect's presence in a third-party's dwelling before executing an arrest warrant therein." Miller, supra, 342 N.J. Super. at 478. However, the term "executing" as used in Miller, did not refer to the officers' knocking at the front door of the dwelling and asking if the suspect was within. It referred to the officers' forcibly entering the dwelling — without a search warrant, or the owner's consent, or exigent circumstances — to search for the suspect. Id. at 478.
In Miller, we adopted the following two-part test to justify the search of a third-party dwelling based on an arrest warrant:
As a matter of State law, therefore, we adopt a two-part standard governing the execution of an arrest warrant in circumstances such as those at hand: in theIn Miller, the police went to a third party's residence to execute an arrest warrant. They had insufficient evidence that he resided there, and when they knocked on the front door, the owner of the house told them defendant was not there. However, they forced their way in, searched the house, found defendant and arrested him. In those circumstances, we found the search was invalid:
absence of consent or exigency, an arrest warrant is not lawfully executed in a dwelling unless the officers executing the warrant have objectively reasonable bases for believing that the person named in the warrant both resides in the dwelling and is within the dwelling at the time.
[Id. at 479]
The trial court here found that defendant was not a resident of the premises in question, that the arresting officers had no adequate basis to believe defendant was a resident of that third-party's home, and that the third-party did not consent to the arresting officers' entry into her home. These findings, in view of the absence of a search warrant and the State's concession that no exigent circumstances existed, compel us to affirm the order suppressing the evidence found incident to the arrest.
[Id. at 479-80.]
However, both Steagald and Miller, as well as many other cases, recognize that under exigent circumstances, the police may enter a dwelling to search for the subject of an arrest warrant. In particular, the police may chase a fleeing suspect into a dwelling to execute an arrest warrant. See State v. Jones, 143 N.J. 4, 19 (1995). Likewise, the police may enter a dwelling where they observe a suspect, in plain view, through an open door. State v. Cleveland, 371 N.J. Super. 286, 300-01 (App. Div.), certif. denied, 182 N.J. 148 (2004). That is essentially what happened here. The investigators knocked on the door of Johnson's house, and Michael Webb opened the door, revealing himself to police in plain view. He then attempted to slam the door in their faces and flee. That created an exigent circumstance which justified the officers in entering the dwelling to apprehend him before he escaped.
Once the officers were lawfully in the house and had arrested Michael, they had the right to perform a quick protective sweep of the remaining portions of the first floor to be sure that there was no one else present who could threaten their safety. Buie, supra, 494 U.S. at 334, 110 S. Ct. at 1098, 108 L. Ed. 2d 276. The Supreme Court explained the need for such a brief search for the officers' protection:
In the instant case, there is an analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside
investigatory encounter. A Terry or Long frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's "turf." An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.
[Buie, supra, 494 U.S. at 333, 110 S. Ct. at 1098, 108 L. Ed. 2d at 285 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983)).]
As Judge Kelley properly concluded, those reasons were present here. The officers were lawfully within the house. They were in a strange environment, in which they had already found not only Michael, but his nephew Gregory, who was a suspect in a shooting. They had the right to make a quick protective sweep through the dwelling to make sure no one else was present. See Buie, supra, 494 U.S. at 334, 110 S. Ct. at 1098, 108 L. Ed. 2d at 286; Davila, supra, 203 N.J. at 115-16.
Finally, Scott had the right to approach the front of Johnson's house in order to knock on the door. See State v. Domicz, 188 N.J. 285, 301-03 (2006). From his vantage point outside the closed front door, Scott had the right to briefly look into a front window of the house to determine if anyone appeared to be at home. See State v. Johnson, 171 N.J. 192, 2 09 (2002); State v. Alexander, 170 N.J. Super. 298, 304 (Law Div. 1979), aff'd o.b., 173 N.J. Super. 260 (App. Div. 1980). However, even if he did not, at that point, Scott did not recognize the man he saw through the window as being Michael Webb, and there is simply no connection between Scott's looking in the window and his eventual entry into the house. The investigators did not enter the house because Scott saw a man through the window. They entered because the fugitive for whom they had an arrest warrant appeared in plain view at the open door. See Cleveland, supra, 371 N.J. Super. at 300-01. Affirmed.
Defendant has not briefed or argued the validity of the search of his person and the discovery of the money. Hence, that issue is waived. Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2012). But even if it were not, we would agree with Judge Kelley that the doctrine of inevitable discovery applied. Defendant was lawfully subject to arrest either for possession of the drug paraphernalia and ammunition, or harboring a fugitive, or both.
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I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION