State v. Frankel

847 A.2d 561, 179 N.J. 586, 2004 N.J. LEXIS 480
CourtSupreme Court of New Jersey
DecidedMay 12, 2004
StatusPublished
Cited by117 cases

This text of 847 A.2d 561 (State v. Frankel) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Frankel, 847 A.2d 561, 179 N.J. 586, 2004 N.J. LEXIS 480 (N.J. 2004).

Opinions

Justice ALBIN

delivered the opinion of the Court.

In this case, the Freehold Township Police Department received an open line 9-1-1 call from defendant’s residence and dispatched a police officer to that address. Defendant advised the officer that he lived alone, did not make and could not account for the call, and would not consent to a search of his home so that the officer could satisfy himself that no one was in need of assistance. We must decide whether, under the totality of the circumstances, the officer’s limited search of the home for a possible victim was justified under the emergency aid exception to the warrant requirement.

[593]*593I.

At approximately 7:27 a.m. on June 21, 1999, Freehold Township Police Dispatcher Darlene Ecks received a 9-1-1 call from the home of defendant Gary Frankel, but no one was on the other end of the line.1 In response, Ecks dialed back the number from which the open line call2 had originated and received a busy signal.3

Ecks then dispatched Officer Russell Gelber to defendant’s house with the information that she had received a 9-1-1 call from that address and was unable to make contact with a resident. Officer Gelber arrived at defendant’s house at approximately 7:46 a.m., and found a white sheet hanging behind the screen door blocking any view through the door or side windows. Defendant answered the knock at the door by poking his head out from behind the sheet, which he held back with one hand.4 He appeared both surprised and nervous by the officer’s presence. The officer informed defendant that he was responding to a 9-1-1 call and that the dispatcher was unable to make contact with anyone inside the house. With only his head visible, defendant told the [594]*594officer that he did not dial 9-1-1. When Officer Gelber suggested that perhaps someone inside the house dialed the number, defendant became nervous, tripped over his words, and explained that he lived alone. In turn, defendant’s “nervousness was making [Officer Gelber] nervous.” Without a full view of defendant, and out of concern for his own safety, Officer Gelber asked defendant to step out from behind the sheet. He patted down defendant to ensure that he had no weapons. Officer Gelber then asked defendant if he could check inside the house “to make sure everything was okay.” The officer wanted to satisfy himself that a domestic violence victim or an injured person in need of assistance was not inside. Defendant displayed a look of shock and panic at the request, asked the officer whether he had a search warrant, and, learning that he did not, denied him consent to enter his home. Defendant also inquired whether he needed an attorney. Officer Gelber, who had never encountered anyone refusing such a “simple request” in his many responses to 9-1-1 calls and in view of defendant’s agitated state, then radioed for backup out of concern for his own safety and fearing that someone inside the house was in danger.

While waiting for backup, the officer and defendant conversed on the porch. Defendant explained that he had been using his computer that morning and that the computer might have “inadvertently dialed 911.”5 In response to the officer’s question whether he had anything inside that he did not want seen, defendant “indicated that there was some sexual stuff inside the residence and he was embarrassed.” Officer Gelber confirmed the telephone number that generated the 9-1-1 call and then radioed the dispatcher to dial back that number. The dispatcher did so and informed Officer Gelber that all she received was a busy [595]*595signal. This information confirmed in Officer Gelber’s mind that there might be “somebody inside the house.” Defendant, who had overheard the dispatcher’s radio transmission, asked the officer if he could retrieve his cordless telephones from his home. Officer Gelber permitted defendant to enter for that purpose and defendant gave the officer consent to post himself in the foyer while he did so. While in the foyer, Officer Gelber observed two rooms, one unfurnished and the other partially furnished with a couch and television. The officer noted that in the partially furnished room a lawn chair was propped up against a sliding glass door from the outside, creating a possible obstacle to anyone trying to enter or exit the house. Although defendant walked down the hallway out of Officer Gelber’s sight, he reappeared within seconds with two cordless telephones and stated that one was for each line in his house.

Defendant then led the officer back outside the house where he used the telephone purportedly from his computer line to dial the telephone from which the 9-1-1 call originated. The telephone rang, indicating that the line was no longer busy. The demonstration, however, did not lessen Officer Gelber’s suspicions because defendant could have taken the telephone from a person incapacitated in the house.

At approximately 8:00 a.m., after Freehold Township Police Officer Dean Smith arrived at defendant’s house, Officer Gelber decided to enter the house “to make sure that [defendant] was alone and that there was nobody else that really needed help in there.” He based his decision on the totality of the circumstances known to him: the original open line 9-1-1 call, the two callbacks by the dispatcher that elicited busy signals, defendant’s nervous and agitated state, and his general observations of the house. Officer Smith stayed with defendant while Officer Gelber conducted a search limited to those areas where a person or body could be concealed. Officer Gelber did not search through drawers or containers for personal effects. During the search, Officer Gelber discovered in plain view marijuana on a tray inside a closet in one [596]*596room; marijuana plants and an ultraviolet grow light in a bathroom; and marijuana plants, grow lights, and an elaborate watering system in a room in the basement. Officer Gelber did not find anyone in the house. The officers then placed defendant under arrest and secured a warrant to search the house.

Robert Bulthaupt, Bell Atlantic’s team leader for the 9-1-1 control center, testified that between two and five percent of all 9-1-1 calls are generated accidentally by non-human means such as by cordless phones with low batteries, answering machines, computer modems, and repair work on telephone lines. Defendant testified that he did not call 9-1-1 on the morning of June 21. His telephone bill indicated that he was using his computer modem to dial into work at 7:26 a.m., the exact time the dispatcher received the 9-1-1 call from defendant’s primary telephone line. The State did not dispute that the 9-1-1 call was triggered by some accidental, non-human means, probably related to the operation of defendant’s computer.

Defendant was charged in a two-count indictment with possession of marijuana, a fourth-degree offense in violation of N.J.S.A. 2C:35-10a(3), and operation of a premise, place, or facility used for the manufacture of marijuana, a first-degree offense in violation of N.J.S.A. 2C:35-4.

The trial court granted defendant’s motion to suppress related to the discovery of the marijuana evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
847 A.2d 561, 179 N.J. 586, 2004 N.J. LEXIS 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-frankel-nj-2004.