NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2457-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH L. MILLER JR., a/k/a JOSEPH L. MILLER,
Defendant-Appellant. _________________________
Submitted December 9, 2019 – Decided March 4, 2020
Before Judges Messano and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Accusation No. 14-02- 0067 and Indictment No. 15-07-0803.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sarah D. Brigham, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendant, Joseph L. Miller, Jr., appeals from his convictions for unlawful
possession of a firearm, N.J.S.A. 2C:39-5(b), and possession of a controlled
dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3). Defendant pled guilty to these offenses as part of a plea
agreement. The sole issue on appeal is whether the trial court properly denied
defendant's Fourth Amendment motion to suppress a handgun, crack cocaine,
and drug distribution paraphernalia found inside his grandmother's house.
Defendant had fled into the house after police officers told him there was an
outstanding warrant for his arrest.
We have reviewed the record and the parties' arguments in view of the
applicable legal principles and affirm the denial of defendant's motion to
suppress. The officers were duty-bound to execute the outstanding warrant and
were authorized to follow defendant into his grandmother's home under the hot
pursuit-exigent circumstances exception to the search warrant requirement.
Once inside, that exception authorized police to look throughout the ho use for
defendant. When they found him upstairs, they saw a revolver and crack cocaine
in plain view. Defendant's grandmother thereafter gave consent for the officers
to conduct a subsequent search of the residence. The officers found additional
evidence during that consent search. We conclude that each police action
A-2457-17T1 2 leading to the discovery of the firearm, crack cocaine, and other evidence was
objectively reasonable and lawful.
I.
A Middlesex County Grand Jury indicted defendant on eight counts,
including weapons and drugs offenses. Defendant filed a motion to suppress the
evidence found at his grandmother's house. After a hearing, the trial judge
denied the motion in a written opinion. Defendant and the State then entered
into a plea agreement that recommended a three-year prison term with a one-
year period of parole ineligibility. The court sentenced defendant in accordance
with the plea agreement. Defendant now challenges the denial of his
suppression motion pursuant to Rule 3:5-7(d).
II.
Defendant raises the following contention for our consideration:
BECAUSE OFFICERS FAILED TO OBTAIN A SEARCH WARRANT BEFORE ENTERING A THIRD PARTY'S HOME IN ORDER TO EXECUTE AN ARREST WARRANT, THIS COURT SHOULD REVERSE THE DENIAL OF THE MOTION TO SUPPRESS.
III.
The following facts were adduced at the suppression hearing. New
Brunswick Police Officers Martinez and Runoff were patrolling a high-crime
A-2457-17T1 3 neighborhood in uniform and in a marked police vehicle around 12:30 a.m. They
observed defendant sitting on the front steps of 191 Seaman Street wearing a
black "puffy vest," and they saw defendant's car parked in front of the house.
Officer Martinez recognized defendant and his vehicle from a previous arrest.
The officers requested the police dispatcher to run a computer check on
defendant and the vehicle. That query revealed that there was an active arrest
warrant pending against defendant. It was later learned that the warrant had
been issued for failure to pay a license restoration fee, N.J.S.A. 39:3-10a. The
police dispatcher relayed the existence of the arrest warrant to the officers but
did not tell them the basis for the warrant.
Two additional officers in another patrol car were dispatched to support
the impending arrest. The four officers approached defendant and told him there
was a warrant for his arrest. Martinez testified that defendant's eyes "widened."
Defendant stood up, clutched his waistband with his right hand, and turned and
fled into the home, slamming the front door in Officer Runoff's face. The
officers kicked in the door and three of them entered the home. The other officer
went around the rear of the house to ensure defendant did not escape via a back
door.
A-2457-17T1 4 Once inside, the officers began searching for defendant, starting on the
first floor. There they encountered defendant's grandmother. They instructed
her to stay in her first-floor bedroom for her own safety.
The officers heard noises coming from the second floor and proceeded
upstairs, service weapons drawn. The upstairs hallway was dark and Officer
Martinez called for defendant to surrender. Defendant announced that he was
"coming out." Martinez saw defendant in the hallway with his hands raised.
Defendant was standing a few feet from the open door of a bedroom near the
stairs. The light in the bedroom was on.
Martinez noticed that defendant was no longer wearing the puffy vest he
had been wearing when he fled into the house. Martinez handcuffed defendant.
While still standing in the hallway, Martinez looked into the lit bedroom and
observed the vest on top of the bed. Next to the vest was a plastic bag that
contained a substance that Martinez immediately recognized to be crack cocaine.
The officer also observed the brown and silver handle of a revolver sticking out
between the box spring and mattress.
After defendant was arrested, defendant's grandmother, who owned the
home, signed a consent-to-search form granting police permission to search the
residence for additional evidence. That search resulted in the seizure of a digital
A-2457-17T1 5 scale, $2850 in cash, a Pyrex cup with cocaine residue, and fifty-two clear
plastic baggies.
The trial court found that Officer Martinez "was a credible witness. He
was forthright in his answers."
IV.
We begin our analysis by acknowledging general legal principles
governing this appeal. When reviewing a trial court's decision in a motion to
suppress, we defer to the court's factual findings so long as they are "supported
by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412,
424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). "By contrast, the
task of appellate courts generally is limited to reviewing issues of law. Because
legal issues do not implicate the fact-finding expertise of the trial courts,
appellate courts construe the Constitution, statutes, and common law 'de novo—
"with fresh eyes" . . . .'" State v. S.S., 229 N.J. 360, 380 (2017) (emphasis
omitted) (quoting State v. Morrison, 227 N.J. 295, 308 (2016)). We need not
defer, in other words, to a trial court judge's interpretive conclusions "unless
persuaded by their reasoning." Morrison, 227 N.J. at 308 (citing State v.
Goodwin, 224 N.J. 102, 110 (2016)).
A-2457-17T1 6 A. Police Entry into the Home
We first address defendant's contention that the police unlawfully pursued
him as he fled into his grandmother's home. Defendant asserts the municipal
court arrest warrant based on his failure to pay a fee was insufficient to justify
the police entry into the dwelling. He argues that police may pursue a fleeing
suspect into a home only if they have probable cause to believe a serious offense,
i.e., an indictable crime, has been committed. Defendant also contends that
police needed a search warrant to enter the home of a third party—his
grandmother—to look inside. We disagree with defendant's contentions. The
officers were allowed to pursue defendant into the house because of the exigency
created by his flight to prevent execution of a valid arrest warrant.
It is a foundational principle of search and seizure law that "the 'physical
entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed.'" Payton v. New York, 445 U.S. 573, 585 (1980)
(quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972)). As our
Supreme Court recently reaffirmed in State v. Cope, "[o]ur constitutional
jurisprudence expresses a decided preference that government officials first
secure a warrant before conducting a search of a home or a person." 224 N.J.
530, 545–46 (2016) (quoting State v. Watts, 223 N.J. 503, 513 (2015)). The
A-2457-17T1 7 issue presented in this case focuses on the type of warrant that is needed to
justify intrusion into the sanctity of a home when a wanted person flees into it
with police in hot pursuit.
Defendant relies on State v. Bolte, 115 N.J. 579, 597 (1989), for the
proposition that police in hot pursuit of a suspect may not barge into a home if
there is only probable cause to believe the fleeing suspect committed a minor,
non-indictable offense. Defendant's reliance on Bolte is misplaced for two
reasons. First, at the moment police crossed the threshold of 191 Seaman Street,
just after defendant ran inside and slammed the door shut, they had probable
cause to believe defendant committed the indictable crime of resisting arrest as
defined in N.J.S.A. 2C:29-2(a)(2). That statute provides in pertinent part that
"a person is guilty of a crime of the fourth degree if he, by flight, purposely
prevents or attempts to prevent a law enforcement officer from effecting an
arrest." N.J.S.A. 2C:29-2(a)(2). Thus, the officers' pursuit into the residence
did not involve a minor offense as in Bolte.1
1 At the time Bolte was decided, fleeing from a motor vehicle stop was classified as a disorderly persons offense. Bolte, 115 N.J. at 597. That statute has since been amended to make motor vehicle eluding either a third- or second-degree crime, depending on whether such flight creates a risk of death or injury to any person. N.J.S.A. 2C:29-2(b).
A-2457-17T1 8 Furthermore, in Bolte, police were not executing an arrest warrant.
Rather, the pursuit that ended inside the defendant's home was based on the
officer's observation of a motor vehicle offense. Id. at 581–82. The probable
cause to arrest for motor vehicle eluding, in other words, had not been
determined by a neutral and detached magistrate. Bolte simply does not address
whether and in what circumstances police may pursue a suspect fleeing from
execution of an outstanding arrest warrant.
Defendant also relies on Steagald v. United States for the proposition that
police need a search warrant, not an arrest warrant, to arrest a suspect in a third -
party's home.2 451 U.S. 204, 213 (1981); accord State v. Miller, 342 N.J. Super.
474, 479–80 (App. Div. 2001) ("These findings, in view of the absence of a
2 An arrest warrant suffices to authorize police to enter a suspect's own residence to effectuate his or her arrest. Payton, 445 U.S. at 603. The State argues that the officers in this case could reasonably have believed defendant resided in his grandmother's house because it was the registered address for his vehicle. The trial court, however, found that while it was undisputed that defendant's grandmother owned the house, "[t]he Court has no actual evidence before it to determine whether Defendant lived in a room at his grandmother's residence or merely stored his possessions there." Thus, there is no factual foundation to support the State's argument that defendant resided there for purposes of the Payton rule. Although we conclude that the arrest warrant was sufficient in this case to authorize the police entry, we do so because there were exigent circumstances arising from defendant's flight from the execution of the warrant, not because police were executing an arrest warrant at the residence of the person named in the warrant. A-2457-17T1 9 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."); State v. Bell, 388 N.J. Super. 629, 636 (App. Div. 2006) ("[T]he police
had no authority to enter his aunt's house to search for defendant without a
search warrant.").
Defendant's reliance on Steagald and the New Jersey cases that follow it
is misplaced because those cases did not involve the hot pursuit of a fleeing
suspect. Indeed, the Court in Steagald framed the issue before it as "whether an
arrest warrant—as opposed to a search warrant—is adequate to protect the
Fourth Amendment interests of persons not named in the warrant, when their
homes are searched without their consent and in the absence of exigent
circumstances." 451 U.S. at 212 (emphasis added). Likewise, in Miller, we
recognized that an arrest warrant generally furnishes no authority to the police
to intrude on the privacy of a home or to engage in a search therein "[i]n the
absence of appropriate exigency, such as hot pursuit into the home." 342 N.J.
Super. at 490 (emphasis added).
Although the cases defendant relies upon are easily distinguished, there is
authoritative precedent that specifically addresses whether police may enter a
dwelling forcibly when there is both an arrest warrant for a minor offense (e.g.,
A-2457-17T1 10 failure to pay an assessment) and exigent circumstances generated when the
suspect flees into the dwelling to frustrate execution of that warrant. As the trial
court correctly noted, the outcome of defendant's motion to suppress is governed
by our Supreme Court's unanimous decision in State v. Jones, 143 N.J. 4 (1995).
The Court framed the critical issue in the very first sentence of its opinion:
In this appeal, the issue is whether it was reasonable, under the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution, for a police officer, following the fleeing subject of an outstanding arrest warrant, to enter a private residence using force if the officer did not know the offense underlying the warrant.
[Id. at 7.]
We confront essentially the same issue in the case before us.
In Jones, police were conducting surveillance of an apartment complex
following a report of a car break-in and theft. Id. at 8. The reason for the
surveillance was unrelated to Jones. Ibid. "[O]fficers observed a vehicle
containing Jones and a companion, Lonzie Collier, pull into the parking lot" of
the apartment complex. Ibid. One of the officers recognized Collier from
previous encounters. Ibid. The officer also remembered that he had seen an
outstanding warrant for Collier's arrest earlier that evening. Ibid. The officer
did not know the offenses underlying the issuance of the warrant. Subsequently,
A-2457-17T1 11 the officer learned that the warrant was issued for Collier's failure to pay fines
assessed for two prior convictions for possession of drug paraphernalia. Ibid.
The officers exited their vehicle and approached Jones and Collier. Ibid.
The two men fled into an apartment building and then into apartment 312. Id.
at 9. The officers gave chase and were not far behind the fleeing suspects. Ibid.
The police tried the apartment door, found it locked, and kicked it down. Ibid.
On those facts, the Court upheld the forcible police entry into the
apartment. Id. at 17. The Court explicitly rejected the defendant's claim that an
arrest warrant for a minor offense such as failing to pay a court-imposed
assessment is different from a warrant issued for a "non-minor" offense such as
an indictable crime. Ibid. The Court reasoned it is not for police to second-
guess a neutral magistrate's decision to issue a warrant. Ibid. Accordingly, the
Court concluded that law enforcement officers are required to execute duly
issued warrants and would be derelict in their duty if they fail to do so. Id. at
14 (citations omitted). The Court acknowledged, moreover, that police rarely
know the underlying offense on which an arrest warrant is issued. Id. at 16. The
Court therefore rejected as unworkable and unreasonable the defendant's
contention that police may not chase fleeing suspects into private residences
unless armed with a warrant for a "non-minor" offense. Ibid.
A-2457-17T1 12 Defendant argues that the holding in Jones is limited to situations where
police execute an arrest warrant of a defendant who is fleeing into his or her
own home. In support of that interpretation, defendant relies on language in the
opinion that quotes Payton. See id. at 13 ("'[A]n arrest warrant founded on
probable cause implicitly carries with it the limited authority to enter a dwelling
in which the suspect lives when there is reason to believe the suspect is within.'
Thus, the police have the right to execute an arrest warrant on a defendant at his
or her home . . . ." (emphases added by defendant) (quoting Payton, 445 U.S. at
603)).
We do not read the opinion or its rationale to apply only to situations
where police are chasing the subject of a warrant into his or her own residence.
Rather, we believe the Court's holding in Jones is set forth in the first sentence
of the final section of the opinion: "Police officers acting pursuant to a valid
arrest warrant have the right to follow a fleeing suspect into a private residence."
Id. at 19 (emphasis added). The choice of "a" to describe the residence
seemingly indicates that there is not a requirement that it be the defendant's
residence. The Court's definitive statement, moreover, directly answers the
legal question the Court framed in the first sentence of the opinion, which also
A-2457-17T1 13 refers to "a" private residence and makes no mention of who resides there. Id.
at 7.
We add that just as it would be unworkable and unreasonable to require
pursuing police officers to determine the underlying offense on which an arrest
warrant is issued, id. at 16, it would be unworkable and unreasonable to require
pursuing officers to determine whether a suspect is fleeing into his or her own
residence or is instead invading the residence of another, perhaps to take a
hostage. The inherent exigency of a true hot pursuit—one where police are
literally on the tail of a fleeing suspect—presupposes the need to make a split-
second decision. That decision must be made based on limited information at
hand and without an opportunity for patient investigation into why a defendant
is fleeing from police or why he or she has chosen a particular premises in which
to take refuge.
In sum, we conclude that Jones stands for the proposition that when a
suspect flees from the execution of an active, lawfully issued arrest warrant,
regardless of the reason for its issuance, police may pursue the suspect into a
private residence without regard to whether the fleeing suspect is the
homeowner, lawful resident, guest, or unwelcome intruder. See Kentucky v.
King, 563 U.S. 452, 460 (2011) ("Police officers may enter premises without a
A-2457-17T1 14 warrant when they are in hot pursuit of a fleeing suspect."); Steagald, 451 U.S.
at 211–12 (noting police entry of a third-party's residence to search for a person
named in an arrest warrant "here took place in the absence of . . . exigent
circumstances," indicating the hot pursuit exception applies to third-party
premises); U.S. v. Santana, 427 U.S. 38, 42–43 (1976) (holding a warrantless
entry pursuant to hot pursuit was valid); State v. Thomas, 124 P.3d 48, 54–55
(Kan. 2005) (applying Santana when a suspect flees into the dwelling of a third
party). Applying that principle to the case before us, the police entry into 191
Seaman Street was reasonable and lawful.
B. The Police Search for Defendant Once Inside the Home
We turn next to defendant's contention that the police violated his Fourth
Amendment rights because of the manner in which they searched for him inside
his grandmother's house. Specifically, defendant contends the pursuing officers
conducted an unlawful "protective sweep search" in violation of Maryland v.
Buie, 494 U.S. 325 (1990), State v. Davila, 203 N.J. 97 (2010), and State v.
Cope, 224 N.J. 530 (2016).
The protective sweep search doctrine is one of several recognized
exceptions to the warrant requirement. Davila, 203 N.J. at 125. Defendant
asserts that the State failed to establish that the officers were lawfully within the
A-2457-17T1 15 residence for a legitimate purpose and that the officers had reasonable
articulable suspicion to believe that defendant posed a danger to them. Buie,
494 U.S. at 327; Davila, 203 N.J. at 102 (conditioning police officers' ability to
perform a protective sweep on whether "(1) police officers are lawfully within
private premises for a legitimate purpose . . . and (2) the officers on the scene
have a reasonable articulable suspicion that the area to be swept harbors an
individual posing a danger").
We have already determined that the pursuing officers lawfully entered
the private premises for the legitimate purpose of executing a valid arrest
warrant from which defendant fled. On these facts, we also do not hesitate to
conclude the pursuing officers had ample reason to believe defendant posed a
danger to them while he was on the loose inside the house, especially because
he had reached towards his waistband before fleeing. See State v. Privott, 203
N.J. 16, 29–30 (2010) (noting the fact a suspect walked away from the officer
and moved one hand towards his waistband—an area commonly used by armed
persons to conceal a weapon—was part of the totality of the circumstances that
would lead an officer to have objectively reasonable concern for his or her
safety). Thus, the facts presented by the State would easily satisfy both elements
of the Buie protective sweep search exception.
A-2457-17T1 16 In the interest of analytical precision, we note defendant's argument
suffers from a more fundamental flaw. His contention proceeds from an
incorrect characterization of the house search in this case as a protective sweep
under Buie and its progeny. 3 In reality, this was not a "protective" sweep search
within the meaning of Buie but rather a search for a specified person named in
an arrest warrant. Accordingly, that search was authorized under a distinct
exception to the warrant requirement—exigent circumstances.
We appreciate that the manner in which the officers methodically
proceeded through the house in search of defendant outwardly resembles the
technique police might use to conduct a Buie sweep search. After all, as with a
Buie sweep search, the officers in this case were only authorized to search for a
person, not for weapons, contraband, or other evidentiary objects. Under both
warrant exceptions because the object of the search is a living person rather than
an inanimate object, the sweep is "narrowly confined to a cursory visual
3 We note that the trial court, and the prosecutor, addressed the lawfulness of the house search in this case as if the Buie doctrine applied. We are not bound to the trial court's legal analysis or its specification of the applicable exceptions to the warrant requirement. As we have noted, although we defer to the fact - finding expertise of the trial court, we construe the Constitution de novo, with "fresh eyes." S.S., 229 N.J. at 380. A-2457-17T1 17 inspection of those places in which a person might be hiding." State v. Bryant,
227 N.J. 60, 70 (2016) (quoting Buie, 494 U.S. at 327).
In other respects, however, these two warrant exceptions are quite
different. As our Supreme Court explained in Cope, a Buie sweep search
follows an arrest and is designed to protect officers from other persons in the
home who may present a danger to officers present in the house by launching a
surprise attack. Cope, 224 N.J. at 535, 538, 545. Furthermore, the so-called
"radius of danger" that defines the geographic scope of a protective sweep
search, see id. at 547 (articulating places officers can and cannot search during
a Buie sweep search), is conceptually and analytically distinct from the scope of
a search for a specified person named in an arrest warrant.
Although defendant unquestionably posed a danger to the pursuing
officers in this case, their authority to search the house was not based solely on
that danger, as would be true for a Buie protective sweep search. 4 Rather, under
the hot pursuit doctrine, the geographic and temporal scope of a sweep search is
defined by the purpose for the police intrusion, which is to find and capture a
4 Our Supreme Court explained that "[t]he rationale for the protective sweep is officer safety," Cope, 224 N.J. at 546, recognizing that "police officers who make an arrest in a home face a great 'risk of danger' because they are 'at the disadvantage of being on [their] adversary's 'turf.'" Ibid. (quoting Buie, 494 U.S. at 333) (second alteration in original). A-2457-17T1 18 specific person who had fled into the premises. Accordingly, the pursuing
officers in this case were permitted to remain in the house until they had either
taken defendant into custody or developed reason to believe he escaped from the
premises.5 While inside, the officers were authorized to search any room or
closet within the house where defendant might have been hiding.
Under the Buie protective sweep search doctrine, in contrast, police are
not permitted to access and search an area of the dwelling unless they reasonably
believe one or more persons are present in that area. See Bryant, 227 N.J. at 70
(noting under the protective sweep search doctrine that "[v]isual or auditory cues
are certainly sufficient to establish that another person may be present" (citing
Davila, 203 N.J. at 128)). In this instance, it happens that "rustling noises" and
the sound of footsteps drew the officers' attention to the second floor. Those
"auditory clues" would have authorized the officers to ascend the stairs under
the protective sweep search doctrine. The point, however, is that under the hot
pursuit exception, police were authorized to look for defendant on the second
floor even if he had been completely silent because that is a place where he
might have sought refuge from execution of the arrest warrant.
5 As noted, one officer was assigned to go to the rear of the house to guard against any such escape.
A-2457-17T1 19 It also bears noting that under the Buie protective sweep doctrine, the
second element—that the officers have reasonable suspicion that the area to be
searched harbors an individual posing danger—requires proof of an
"individualized" suspicion of a risk of danger. As the Court recognized in
Bryant, "[t]here is no mathematical formula to determine" whether the police
possess an "individualized, rather than generalized, suspicion." 227 N.J. at 70
(first citing State v. Pineiro, 181 N.J. 13, 27 (2004), then quoting Davila, 203
N.J. at 129).
In contrast, under the hot pursuit exception, all persons who flee from the
impending execution of an arrest warrant must be deemed to be dangerous to the
officers tasked to chase after them. When a person flees into a dwelling to avoid
execution of a warrant, pursuing officers need not speculate on the suspect's
motivation for flight. Nor do they need to speculate as to the fleeing suspect's
planned future course of action once inside the premises. Rather, under the hot
pursuit doctrine, the risk of danger to police arises automatically from the same
circumstances that justify pursuing a person who is fleeing from the execution
of an arrest warrant.
It bears emphasis that our Fourth Amendment jurisprudence has long
recognized that custodial arrests by their inherent nature present a danger to
A-2457-17T1 20 police officers, which is only magnified when the arrestee has already resisted
police authority by flight. The inherent danger to officer safety that arises from
all custodial arrests is one of the reasons why officers are automatically
permitted to conduct a search incident to an arrest, even for minor, nonviolent
offenses. See State v. Dangerfield, 171 N.J. 446, 462–63 (2002) (authorizing
police to conduct a search incident to arrest regardless of the nature or
seriousness of the offense for which the defendant is lawfully arrested); see also
United States v. Robinson, 414 U.S. 218, 226 (1973) ("When an arrest is made,
it is reasonable for the arresting officer to search the person arrested in order to
remove any weapons that the latter might seek to use in order to resist arrest or
effect his escape. Otherwise, the officer's safety might well be endangered . . .
.'" (quoting Chimel v. California, 395 U.S. 752, 762–63 (1969))).
For all of the foregoing reasons, we hold that, at least until defendant was
captured,6 the Buie doctrine is simply inapposite in this case. Rather, the search
of the house for defendant was authorized by the same exception to the warrant
6 We note that the Buie doctrine did eventually ripen in this case after police found and arrested defendant. At that moment, the arrest warrant was effectuated and its implicit authority to conduct a search of the premises for defendant expired. The trial court found that the visual inspection of the bedroom from which defendant exited just before he surrendered falls within the ambit of the Buie doctrine. We agree since that area might have harbored a person that defendant went to for aid in resisting arrest. A-2457-17T1 21 requirement that authorized the initial police entry—exigent circumstances in
the form of a hot pursuit. Indeed, the significant Fourth Amendment privacy
intrusion authorized by Jones would be pointless if police could not search the
residence for the fleeing suspect. The authority to intrude upon Fourth
Amendment privacy rights under the hot pursuit type of exigent circumstances
does not suddenly evaporate at the moment law enforcement officers cross the
threshold of a residence. Rather, the authority to conduct a warrantless search
for the fleeing suspect inside the residence is coextensive and coterminous with
the exigency and thus continues until that suspect is apprehended.
C. Police Discovery of the Firearm and Crack Cocaine
Defendant next contends that police had no authority to seize the crack
cocaine on top of the bed and the revolver that was partially concealed between
the mattress and box spring. The trial court concluded that the discovery and
seizure of the firearm and cocaine were authorized under two distinct exceptions
to the warrant requirement: the plain view doctrine and the search-incident-to-
an arrest doctrine.
To lawfully seize an item in plain view, a three-prong test must be
satisfied: (1) the officer must have been lawfully in the viewing area; (2) the
A-2457-17T1 22 officer must have discovered the evidence "inadvertently;" 7 and (3) the
criminality of the item must have been immediately apparent to the officer. State
v. Earls, 214 N.J. 564, 592 (2013) (quoting State v. Mann, 203 N.J. 328, 341
(2010)).
Defendant on appeal challenges only the first prong of the three-part test,
claiming the pursuing officers had no authority to enter the house, and once
inside, had no authority to be the second floor. We have already held in the
preceding sections of this opinion that the police officers were authorized to
enter the home and to look for him on the second floor. We therefore conclude
that for purposes of the plain view exception as well, the State has established
that Officer Martinez was lawfully present in the upstairs hallway when he
looked into the open bedroom from the hallway and immediately recognized the
criminal nature of the packaged crack cocaine and the handle of a revolver. 8 We
7 In State v. Gonzales, 227 N.J. 77 (2016), our Supreme Court embraced the United States Supreme Court's decision in Horton v. California, 496 U.S. 128 (1990), and eliminated the "inadvertence" prong. Gonzales, 227 N.J. at 82. However, Gonzales applies only prospectively. Ibid. In this instance, the search was conducted before Gonzales was decided on November 15, 2016. 8 The trial court determined that after Officer Martinez placed defendant under arrest in the hallway, the officer was permitted to conduct a limited prot ective sweep of the bedroom. We agree the bedroom was "immediately adjoining the place of arrest from which an attack could be immediately launched." Cope,
A-2457-17T1 23 also agree with the trial court that it was objectively reasonable for Officer
Martinez to peer into the room from which defendant had just emerged. We
therefore affirm the trial court's conclusion that:
The seizure of the gun and drugs met the plain view exception to the warrant requirement as Officer Martinez was lawfully in the hallway when he first saw the items on the bed; his discovery of the items was inadvertent in that he did not know in advance that the gun and drugs would be found in the bedroom nor intended to seize them beforehand; and it was immediately apparent to him, based on his experience, that the items were contraband.
The trial court also found that the revolver and crack were lawfully seized
incident to defendant's arrest pursuant to Chimel. In Chimel, the Court held that
when an officer effectuates an arrest, he or she may search the "arrestee's person
and the area 'within his immediate control'—construing that phrase to mean the
area within which he might gain possession of a weapon or destructible
evidence." 395 U.S. at 763; see also State v. Eckel, 185 N.J. 523, 535 (2006)
("New Jersey's traditional approach to [a] search incident to arrest parallels
Chimel.")
224 N.J. at 547 (quoting Buie, 494 U.S. at 334). The officer in these circumstances could reasonably believe that defendant had retreated to that bedroom to get assistance from another person. A-2457-17T1 24 In this case, the record indicates that defendant was already outside the
bedroom when he surrendered to police, was ten feet away from the bed when
he was arrested, and was already handcuffed when police entered the bedroom
to retrieve the weapon and contraband. Because we conclude the revolver and
crack cocaine in the bedroom were lawfully seized under the plain view doctrine,
we need not address whether those items were within defendant's immediate
control within the meaning of Chimel at the time of his arrest.
D. Consent Search
Finally, we address defendant's contention that the consent to search given
by his grandmother was involuntary. 9 The gravamen of defendant's argument is
that police obtained her consent by coercion. Specifically, defendant argues that
she was emotionally upset by the manner in which the officers forcibly entered
her home and told her to stay in her first-floor bedroom for her own safety as
they searched the house for her son.
After reviewing the record in light of the legal principles relating to the
consent search doctrine, we agree with the trial court that her consent was given
9 The police found and seized the digital scale, $2856 in cash, plastic baggies, and the Pyrex cup with cocaine residue pursuant to the consent doctrine. The firearm and crack cocaine were seized before defendant's grandmother signed the consent-to-search form and so the admissibility of the gun and cocaine does not depend on the consent doctrine. A-2457-17T1 25 knowingly and voluntarily. See State v. Johnson, 68 N.J. 349 (1975) (generally
explaining the consent doctrine under the New Jersey Constitution); Elders 192
N.J. at 246 (requiring the State establish the applicability of the consent search
doctrine by a preponderance of the evidence). Aside from the explanation of
rights set forth in the body of the consent form, an officer advised her orally of
her right to refuse consent, her right to revoke consent at any time, and her right
to be present while the search was conducted. She signed the form indicating
that the consent was given "voluntarily and without threat or promises of any
kind." This was all done after the exigencies of the forcible entry and arrest had
passed and the stresses associated with the pursuit had calmed down. Defendant
had surrendered and was taken into custody without resort to violence and was
already out of the house when his grandmother signed the consent form. On the
record before us, we are thus persuaded by the trial court's interpretive
conclusion with respect to the voluntariness of the consent search. See
Morrison, 227 N.J. at 308 (permitting deference to the trial court when
persuaded by its reasoning).
Affirmed.
A-2457-17T1 26