STATE OF NEW JERSEY VS. JERVONE W. BROOKS (17-03-0617, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 8, 2020
• Docket: A-0977-18T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0977-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERVONE W. BROOKS, a/k/a MIKE JONES,

Defendant-Appellant. ________________________

Submitted October 13, 2020 – Decided December 8, 2020

Before Judges Hoffman and Smith.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 17-03-0617.

Joseph E. Krakora, Public Defender, attorney for appellant (Whitney Flanagan, First Assistant Deputy Public Defender, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Debra G. Simms, Deputy Attorney General, of counsel and on the brief).

PER CURIAM Following the denial of his motion to suppress evidence, defendant

Jervone Brooks pleaded guilty to second-degree possession of a firearm while

committing a controlled dangerous substance (CDS) offense, in violation of

N.J.S.A. 2C:39-4.1(a). In accordance with a plea agreement, the trial court

sentenced defendant to a five-year prison term with a forty-two month period of

parole ineligibility. Defendant now appeals from the trial court's November 13,

2017 order denying his motion to suppress. We affirm.

I.

We derive the following facts from the suppression motion record. On

November 10, 2016, Officer Girard Tell, an officer for three and one-half years

with the Pleasantville Police Department, and his partner, Officer VanSyckle,

were assigned to the street crimes unit, a proactive patrol, where the officers

generated their own work and assisted in investigations. On this date, Officer

Tell was attired in green tactical pants and an outer vest carrier with the words

"Police Street Crimes" shown in large reflective lettering; in addition, he

displayed a metallic badge on his right hip.

At approximately 8:33 p.m., the officers were positioned in an unmarked

patrol vehicle when Officer Tell observed a hunter green Jeep traveling west on

Washington Avenue in Pleasantville. Officer Tell immediately recognized the

A-0977-18T4 2 vehicle as belonging to Brian Gould, whom Officer Tell had arrested on a prior

occasion for possession of cocaine. During questioning that followed the

previous arrest, Gould disclosed to Officer Tell that he had purchased the

cocaine in the area near the Pleasantville police station.

Officer Tell decided to follow Gould's vehicle, which eventually stopped

outside a residence on Fourth Street, located near the Pleasantville police

station. The officers parked their vehicle about four car lengths behind Gould's,

on the opposite side of the street, and turned off their headlights. According to

Officer Tell, the area was well-lit, and he had an unobstructed view of Gould's

car and the residence.

Officer Tell watched as two men exited the front door of the residence,

one staying within the fence surrounding the residence, while the other, later

identified as defendant, approached the driver's side of Gould's vehicle. Officer

Tell observed defendant and the driver of Gould's vehicle make a hand-to-hand

exchange, and then observed defendant walk back to the other man standing

behind the fence and make another hand-to-hand exchange. Defendant then

walked back to Gould's vehicle.

Based on his training in drug recognition and distribution, his past

participation in numerous arrests of individuals involved in drug transactions ,

A-0977-18T4 3 and Gould's prior statement to him, Officer Tell believed he observed defendant

engaged in a narcotics transaction. Consequently, Officer Tell activated the

patrol vehicle's siren and emergency lights and exited the vehicle to initiate a

pedestrian stop of defendant. After Officer Tell identified himself, defendant

immediately ran towards the residence, leading the two officers to chase after

him. During this chase, Officer Tell yelled, "police, stop," to no avail, as

defendant entered the front door of the residence, closed it, and locked it behind

him.

Officer Tell forcibly opened the door and followed defendant upstairs,

again identifying himself and ordering defendant to stop. Defendant ran into a

dark bedroom, and Officer Tell stationed himself in the hallway outside where

he ordered defendant to come out of the bedroom with his hands up. Defendant

did not immediately comply with this order, and Officer Tell could hear "some

shuffling around" inside the bedroom. After "a short time," defendant appeared

in the doorway with his hands up, and Officer Tell ordered him to the ground.

Defendant complied, laying down partially in the bedroom and partially in the

hallway. At this point, Officer Tell stood behind defendant in the bedroom and

placed handcuffs on defendant. Officer Tell asked defendant if he was alone,

and defendant informed him somebody else was in the house.

A-0977-18T4 4 Officer Tell then turned on the bedroom lights for "officer safety ." He

observed cash and clear sandwich baggies on top of a dresser as well as a pink

metallic handgun in the open bottom drawer of the dresser. Officer VanSyckle

reported observing cocaine in plain view on the first floor and also discovered

defendant's brother hiding in another bedroom in the residence. Collectively,

the officers seized the following items: a .38 caliber revolver, five cartridges

from the handgun, three hollow point bullets, a clear cylindrical container

containing suspected cocaine, eighty sandwich baggies, and a digital scale with

drug residue. After his arrest, defendant waived his Miranda rights and admitted

to police that he had engaged in a narcotics exchange before running from police

and that the gun and drugs belonged to him.

In March 2017, an Atlantic County Grand Jury returned Indictment No.

17-3-0617, charging defendant with the following offenses: 1) second-degree

unlawful possession of a weapon, to wit, a Charter Arms Revolver, .38 Special

Caliber, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b)(1) (count one); 2) second-

degree possession of a firearm while committing a CDS/Bias crime, N.J.S.A.

2C:35-5(b)(3) and N.J.S.A. 2C:39-4.1(a) (count two); 3) third-degree possession

of cocaine, N.J.S.A. 2C:35-10(a)(1) (count three); third-degree possession of

cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(3) (count

A-0977-18T4 5 four); third-degree distribution of cocaine within 1,000 feet of school property,

N.J.S.A. 2C:35-7 (count five); fourth-degree possession of dum-dum bullets,

contrary to N.J.S.A. 2C:39-3(f) (count six); fourth-degree receiving stolen

property, to wit, a revolver, contrary to N.J.S.A. 2C:20-7(a) (count seven); and

fourth-degree eluding, contrary to N.J.S.A. 2C:29-2(a)(2) (count eight).

Defendant filed a motion to suppress the evidence seized by Officers Tell

and VanSyckle, which the trial court denied in a written decision dated

November 13, 2017. On March 22, 2018, defendant pleaded guilty to second-

degree possession of a firearm while committing a controlled dangerous

substance offense, contrary to N.J.S.A. 2C:39-4.1(a). On July 27, 2018, the trial

court sentenced defendant to five years imprisonment with a forty-two month

period of parole ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).

This appeal followed, with defendant presenting the following argument:

EVIDENCE SHOULD HAVE BEEN SUPPRESSED WHERE IT WAS SEIZED FROM A HOME WITHOUT A WARRANT, PROBABLE CAUSE, OR AN EXCEPTION TO THE WARRANT REQUIREMENT.

A-0977-18T4 6 II.

We apply a highly deferential standard of review to a trial judge's

determination on a motion to suppress. State v. Gonzales, 227 N.J. 77, 101

(2016). We will

uphold the motion judge's factual findings so long as sufficient credible evidence in the record supports those findings. Those factual findings are entitled to deference because the motion judge . . . has the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."

[Ibid. (citation omitted) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).]

"[U]nder . . . the Fourth Amendment to the United States Constitution and

Article I, Paragraph 7 of our State Constitution, searches and seizures conducted

without warrants issued upon probable cause are presumptively unreasonable

and therefore invalid." State v. Elders, 192 N.J. 224, 246 (2007). Searches and

seizures conducted without a warrant, "particularly in a home, are presumptively

unreasonable." State v. Edmonds, 211 N.J. 117, 129 (2012) (quoting State v.

Bolte, 115 N.J. 579, 585 (1989)). Indeed, entry into the home is the "chief evil

against which the wording of the Fourth Amendment is directed." State v.

Lamb, 218 N.J. 300, 314 (2014) (citation and internal quotation marks omitted).

Therefore, "our jurisprudence expresses a clear preference for police officers to

A-0977-18T4 7 secure a warrant before entering and searching a home." State v. Brown, 216

N.J. 508, 527 (2014).

Where a search of a home is challenged, the State has the burden of

proving by a preponderance of the evidence the search is "justified by one of the

'well-delineated exceptions' to the warrant requirement." State v. Shaw, 213

N.J. 398, 409 (2012) (quoting State v. Frankel, 179 N.J. 586, 598 (2004)). One

such exception is the presence of exigent circumstances. State v. Johnson, 193

N.J. 528, 552 (2008).

Courts have "identified several exigencies that may justify a warrantless

search of a home" including "the need 'to prevent the imminent destruction of

evidence.'" Kentucky v. King, 563 U.S. 452, 460 (2011) (quoting Brigham City

v. Stuart, 547 U.S. 398, 403 (2006)); see also State v. Lewis, 116 N.J. 477, 484

(1989); State v. Hutchins, 116 N.J. 457, 467 (1989). This is "the most frequently

relied on exigent circumstance in drug cases." Lewis, 116 N.J. at 484. "[D]rugs

may be easily destroyed by flushing them down a toilet or rinsing them down a

drain." King, 563 U.S. at 461.

The question of whether exigent circumstances exist is evaluated on a

case-by-case basis considering the totality of the circumstances. In re J.A., 233

N.J. 432, 448 (2018). Police safety and the preservation of evidence are primary

A-0977-18T4 8 considerations in such an inquiry. Ibid. When a defendant retreats or causes

some elements of a chase, and thereby causes a "hot pursuit" by police, the

United States Supreme Court has stated the situations may create a "realistic

expectation that any delay would result in destruction of evidence[,]" thus

justifying a warrantless entry. Bolte, 115 N.J. at 589 (quoting United States v.

Santana, 427 U.S. 38, 43 (1976)). Likewise, a "hot pursuit" may justify a

warrantless entry into a home provided the police had sufficient probable cause

when they "first sought to arrest [the suspect] . . . in a public place." Santana,

427 U.S. at 42.

If the State seeks to justify a warrantless entry of a residence because of

exigent circumstances, it must also make "a clear showing of probable cause."

State v. Lewis, 116 N.J. 477, 486 (1989). Probable cause is "a reasonable basis

for a belief that a crime has been or is being committed." State v. Williams, 117

N.J. Super. 372, 375 (App. Div. 1971) (citing State v. Contursi, 44 N.J. 422, 429

(1965)). In determining whether there was probable cause, the court considers

the totality of circumstances. State v. Basil, 202 N.J. 570, 585 (2010) (citing

Illinois v. Gates, 462 U.S. 213, 238 (1983)).

The trial court found "there was exigency and probable cause for Officer

Tell to believe that there were drugs [in the residence,]" and that defendant's

A-0977-18T4 9 immediate flight in response to the officers turning on their emergency lights

and siren indicated "there was a high likelihood that defendant would destroy

the discovered CDS evidence if not immediately apprehended[.]"

Defendant contends the trial court erred in finding the officers had

probable cause to enter his home, arguing that Officer Tell's observation of an

unspecified "exchange" between defendant and the two other men only created

a "mere hunch that a drug sale had occurred." In turn, defendant claims the

officers' forced entry into the residence "was not justified by exigent

circumstances" because there was no reason to believe [defendant] possessed

drugs on his person or in the [residence], and therefore no reason to believe

evidence would be destroyed." We do not agree.

A consideration of the totality of the circumstances here supports the

trial court's finding of probable cause. Officer Tell followed a vehicle that he

recognized from a past drug possession arrest involving the vehicle's owner.

The vehicle drove to and stopped at an address near the Pleasantville police

station, which was within the area where the vehicle's owner had purchased the

drugs underlying that previous drug possession arrest. At this location. Officer

Tell observed defendant and the vehicle's driver participate in a hand-to-hand

A-0977-18T4 10 exchange. And when Officer Tell activated his lights and siren and identified

himself as a police officer, defendant immediately fled on foot.

All these facts establish the officers had probable cause to believe

defendant engaged in a drug transaction and was in possession of contraband.

Because the officers had probable cause to arrest the defendant upon witnessing

this transaction and attempted to apprehend defendant while he was standing in

the public roadway, they were justified in following defendant in "hot pursuit"

into the residence without a warrant. Moreover, defendant's sudden flight upon

encountering the officers created the realistic expectation that he would destroy

any evidence of contraband in the residence if the officers did not immediately

follow him. Therefore, the trial court's finding that exigent circumstances

justified the officers' warrantless entry into the residence was supported by

sufficient credible evidence in the record and was not in error.

Defendant also challenges the trial court's determination that the officers'

discovery and seizure of the handgun once inside the residence was justified by

the plain view exception to the warrant requirement. This challenge lacks merit.

The plain view doctrine, another exception to the warrant requirement,

applies when the following requirements are met: (1) the officer must be

"lawfully in the viewing area"; (2) it must be "immediately apparent" to the

A-0977-18T4 11 officer that the items in plain view "were evidence of a crime" or are contraband;

and (3) the evidence must be discovered "inadvertently." 1 State v. Earls, 214

N.J. 564, 592 (2013) (quoting State v. Mann, 203 N.J. 328, 341 (2007)). The

rationale for the plain view doctrine is that "a police officer lawfully in the

viewing area" need not "close his [or her] eyes to suspicious evidence in plain

view." State v. Johnson, 171 N.J. 192, 207 (2002) (quoting State v. Bruzzese,

94 N.J. 210, 237 (1983), overruled in part by State v. Gonzales, 227 N.J. 77

(2016)).

Defendant contends the plain view exception did not justify the officers'

seizure of the handgun because it was not immediately apparent to Officer Tell

that the gun was evidence of a crime or contraband. Defendant argues "[n]one

of the attendant circumstances suggested that the weapon itself was illegal or

illegally possessed" and that "[Officer] Tell did not testify as to why he believed

that the handgun he observed was contraband. We disagree.

1 The New Jersey Supreme Court recently eliminated the "inadvertence prong" from the plain-view exception to the warrant requirement in State v. Gonzales, 227 N.J. 77, 101 (2016). However, the Court applied this new rule of law prospectively. Since Gonzales was decided on November 15, 2016, and the search of defendant's residence at issue here took place on November 10, 2016, Gonzales is inapplicable to the matter under review. A-0977-18T4 12 Officer Tell observed the handgun in an open drawer of the same dresser

where he located the cash and plastic baggies, which "through [his] training and

experience," he "associated with the distribution of narcotics[.]" Additionally,

Officer Tell heard defendant "shuffling around" inside the bedroom before

defendant surrendered himself, which put Officer Tell on notice that the room

may contain contraband. Finally, it is worth noting that defendant informed

Officer Tell that another individual was present in the house, so seizure of the

handgun would also have been justified to protect the safety of the two officers.

We are convinced that the evidence presented at the suppression hearing

fully supports the trial court's determination that the officers' entry into the

residence and seizure of the evidence were justified under the exigent

circumstances and plain view exceptions to the warrant requirement. We

accordingly affirm the denial of defendant's motion to suppress.

Affirmed.

A-0977-18T4 13