Opinion
DOCKET NO. A-1100-15T3
04-22-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. GIOVANNI RODRIGUEZ AND JOSE LOVETT, Defendants-Respondents.
Jason Magid, Assistant Prosecutor, argued the cause for appellant (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief). Solmaz F. Firoz, Assistant Deputy Public Defender, argued the cause for respondent Jose Lovett (Joseph E. Krakora, Public Defender, attorney; Lauren Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Respondent Giovanni Rodriguez has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman, Leone and Whipple. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 15-01-0210. Jason Magid, Assistant Prosecutor, argued the cause for appellant (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief). Solmaz F. Firoz, Assistant Deputy Public Defender, argued the cause for respondent Jose Lovett (Joseph E. Krakora, Public Defender, attorney; Lauren Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Respondent Giovanni Rodriguez has not filed a brief. PER CURIAM
The State appeals from the July 31, 2015 order granting defendants' motion to suppress. We affirm.
We summarize the following facts from the record. On July 22, 2014, Trooper David Daniels was working with several officers in Camden conducting a "sneak and peak," which is an attempt to observe hand-to-hand narcotics transactions with the goal to make narcotics-related arrests. While conducting surveillance on Tulip Street, the trooper specifically observed what he believed to be two separate hand-to-hand narcotics transactions occurring from a residence's enclosed porch. After observing the transactions, Trooper Daniels and a team of officers entered the enclosed porch to arrest defendants. Defendant Lovett was inside the doorway, and defendant Rodriguez was sitting on a couch inside the structure. The officers searched defendants incident to arrest, and discovered a handgun, money, and drugs, which the State sought to use at trial. The defendants remained in place as the officers conducted the arrest. The officers had no warrant before entering, no consent to enter, and no knowledge of weapons in the house before entering.
Defendants were indicted for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3); third-degree possession of CDS with the intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7; third-degree conspiracy to possess CDS with the intent to distribute, N.J.S.A. 2C:5-2, 2C:35-5b; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(2); second-degree possession of a weapon during a CDS offense, N.J.S.A. 2C:39-4.1; and, as to defendant Lovett, second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.
Defendants moved to suppress the seized items. At the suppression hearing, the State called Trooper Daniels. He testified that he twice observed individuals approaching the house, engaging in a conversation with those inside the porch, and then exchanging currency for a small bag. Trooper Daniels testified that he observed the two defendants in the porch, and that Lovett was "just inside the doorway, kind of hanging inside and out of the doorway," and that Rodriguez was sitting on a couch inside the porch. Trooper Daniels testified that the porch was attached to the house, contained a door and windows, and was fully enclosed.
On July 31, 2015, the motion judge granted defendants' motion to suppress, issuing his ruling from the bench. Pursuant to Rule 1:7-4(a) and (b), at the State's request, the judge issued a written decision on September 28, 2015. This appeal followed.
On appeal the State argues:
POINT I:
THE TRIAL COURT IMPROVIDENTLY GRANTED DEFENDANTS' MOTION TO SUPPRESS EVIDENCE WARRANTING REVERSAL IN THIS INSTANCE.
When reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence on the record." State v. Rockford, 213 N.J. 424, 200 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which the reviewing court cannot enjoy." Ibid. "To the extent that the trial court's determination rests upon a legal conclusion, we conduct a de novo, plenary review." Ibid. (citing State v. J.D., 211 N.J. 344, 354 (2012); State v. Gandhi, 201 N.J. 161, 176 (2010)).
The Fourth Amendment to the United States Constitution and Article One, Paragraph Seven of the New Jersey Constitution provide protection to citizens against unreasonable searches and seizures. State v. Lamb, 218 N.J. 300, 314-15 (2014). A search of a person's home or effects is presumed unreasonable if it is conducted without a warrant. State v. Brown, 216 N.J. 508, 516 (2014). The unreasonableness of a warrantless search derives from the protection of two related interests. First, the United States Supreme Court has held that a physical intrusion upon "a constitutionally protected area," including homes, constitutes an unreasonable search or seizure when performed without a warrant. United States v. Jones, ___ U.S. ___, 132 S. Ct. 945, 951, 181 L. Ed. 2d 911, 920 (2012). Second, the Court has held that a Fourth Amendment violation occurs when there is an unwarranted search or seizure in a place where the subject of the search maintains a reasonable expectation of privacy, both subjectively (meaning the defendant personally has an expectation of privacy) and objectively (meaning society is prepared to recognize that expectation as reasonable). Kyllo v. United States, 533 U.S. 27, 32-33, 121 S. Ct. 2038, 2042, 150 L. Ed. 2d 94, 101 (2001) (citing Katz v. United States, 389 U.S. 347, 360-61, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576, 587 (1967) (Harlan, J., concurring)).
Both the United States Supreme Court and our Supreme Court have noted that, in particular, the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Lamb, supra, 218 N.J. at 314 (quoting State v. Vargas, 213 N.J. 301, 313 (2013)). The United States Supreme Court has explained in no uncertain terms that "when it comes to the Fourth Amendment, the home is first among equals. At the Amendment's 'very core' stands 'the right of a man to retreat into his own home and there be free from unreasonable government intrusion.'" Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 1414, 185 L. Ed. 2d 495, 501 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 683, 5 L. Ed. 2d 734, 739 (1961)).
In opposition to defendants' motion to suppress, the State originally argued that, pursuant to the "hot pursuit" doctrine, the officers were lawfully permitted to follow defendants into the home to effectuate an arrest, and once inside were permitted to arrest both men and seize the contraband that was within the officers' plain view.
In his decision from the bench, the trial court rejected the State's argument that the troopers lawfully entered the porch based on "hot pursuit," finding the doctrine did not apply because the trooper's testimony did not establish that defendants ever stepped outside the enclosed porch into a public place, but were inside the porch at all times during the operation. Additionally, defendants did not flee when police approached, but rather "remained where they were and complied with the trooper's instructions." Moreover, as the trial court noted, the hot pursuit doctrine is not available when defendant's first encounter with police is in his own home rather than a public place. State v. Jefferson, 413 N.J. Super. 344, 357 (App. Div. 2010). Specifically adopting the analysis of United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35 (1987), and Jardines, the judge found that the enclosed porch was curtilage to the home and subject to protection under the Fourth Amendment and that no exigencies, such as destruction of evidence or flight, were demonstrated in this case.
During the hearing, the Court admitted a photograph of the front of the house which was authenticated by Trooper Daniels. The photograph depicted a two-story residence with a first level front porch that spans the entire width of the buildings front facing side, and is completely enclosed. In his written decision the trial judge found "[t]he enclosure is of solid construction, has a front door, as well as front facing windows that appear to be covered by curtains. The rust color of the enclosure matches the rust color of the house, and appears to meet with the exterior walls of the house on either side. Based on the evidence and testimony presented, one could easily conclude that the interior of the enclosure was part of the interior of the house."
In his written decision, the trial judge reiterated his findings and addressed the State's arguments in support of additional exceptions to the warrant requirement. The trial judge rejected the State's argument that the plain view exception to the warrant requirement offered license to the troopers to enter the house. The trial judge also rejected the State's arguments that the search was lawful under the search incident to arrest exception.
Curtilage is the area surrounding the home that is considered "part of the home itself for Fourth Amendment purposes." Jardines, supra, 122 S. Ct. at 1414-15, 183 L. Ed. 2d at 501 (citing Oliver v. United States, 466 U.S. 170, 178, 104 S. Ct. 1735, 1741, 60 L. Ed. 2d 214, 224 (1984)). A court's determination of what constitutes curtilage and where the boundaries of curtilage are located are informed by "our daily experience." Ibid. (citation omitted). The United States Supreme Court has recognized that "the front porch is the classic exemplar of an area adjacent to the home and to which the activity of home life extends," and that it is thus a constitutionally protected area. Ibid.
The State asserts that the porch in this case was only a "semi-private area," which receives less Fourth Amendment protection than a private area inside the home. See State v. Johnson, 171 N.J. 192, 208-09 (2002) (citations omitted). The primary reason that such area receive reduced Fourth Amendment protection is because residents or visitors in such areas expose their activities to the public, thus reducing their expectation of privacy. Ibid. (citations omitted).
This case is distinguishable from Johnson because, as the judge found and as the photograph indicates, the structure here was not an open porch or a "semi-private area," but an enclosed addition to the house. In Johnson, the officers were conducting surveillance on possible narcotics activity, and entered defendant's porch. Id. at 209-10. However, the porch in Johnson was public, and was only demarcated with posts and steps. Id. at 200. The court found here, the structure in this case contained a door that forbade others access from the outside, and windows curtained off from the inside, and contained a couch. As opposed to the porch in Johnson, the trial court found that the porch in this case contained a private living area enclosed with solid walls that was inaccessible to the public. We discern no reason to disturb that finding.
Here, Trooper Daniels' testimony demonstrated that both defendants were inside the enclosed porch at the time of arrest, and that the troopers "went in the front door of the house" and arrested Lovett and Rodriguez. Because the police officers both violated defendants' reasonable expectation to privacy and intruded upon a constitutionally protected area by entering, the police officers conducted an illegal, warrantless search. Because the arrest took place inside the home without a warrant, and no exigent circumstances were demonstrated in this case, the trial court correctly suppressed the evidence obtained as a result of the warrantless search.
We note that a footnote in the State's brief cites State v. Nikola, 359 N.J. Super. 573, 582 (App. Div.), certif. denied, 178 N.J. 30 (2003), and asserts that defendant Lovett was standing in the doorway. This directly contradicts the court's finding that both defendants were inside the porch when the arrest occurred. Accordingly, Nikola is inapplicable here for two reasons: first, because police initiated the arrest sometime after the illegal activity had taken place, and secondly, because the police initiated arrest while inside the porch. Because the defendants were inside the doorway and because the police had to walk through the doorway to effectuate the arrests, Nikola is inapplicable. See id. at 583 (explaining that an arrest can take place within a private place as long as the arrest was initiated in a public place, such as a doorway). In any event, we will not consider arguments raised only in a footnote. See Almog v. Israel Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div. 1997), certif. dismissed as improvidently granted, 152 N.J. 361, cert. denied, 525 U.S. 817, 119 S. Ct. 55, 142 L. Ed. 2d 42 (1998). --------
The plain view doctrine does not apply, contrary to the State's argument. In order for the doctrine to apply, an officer must lawfully be in the viewing area. Johnson, supra, 171 N.J. at 208 (citations omitted); see also Kentucky v. King, 563 U.S. 452, 462-63, 131 S. Ct. 1849, 1858, 179 L. Ed. 2d 865, 876 (2011) (providing that "[i]t is . . . an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." (quoting Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301, 2308, 110 L. Ed. 2d 112, 123 (1990))). Because the officers in this case were not lawfully inside the viewing area, the enclosed porch, the State's plain view arguments are without merit.
The State did not demonstrate that any exigent circumstances applied in this case. Exigent circumstances, such as the need to prevent the destruction of evidence, the need to render emergency aid, and the "hot pursuit" exception are valid exceptions to the warrant requirement as long as the police do not "create" an exigency. King, supra, 563 U.S. at 462-64, 131 S. Ct. at 1858-59, 179 L. Ed. 2d at 876-77. Here, there was no exigent circumstance permitting the officers to conduct a search leading to the evidence the State sought to introduce at trial. The defendants did not attempt to retreat when officers initiated the arresting process, and thus the "hot pursuit" exception does not apply. See United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300, 305-06 (1976). Indeed, though the State argued "hot pursuit" below, it does not raise that argument on appeal.
The State does raise other exigent circumstances arguments on appeal, but it did not raise them below; we accordingly decline to consider them. State v. Robinson, 200 N.J. 1, 20 (2009). In any event, there was no testimony that defendants attempted to destroy the evidence. The trial court found that "defendants were wholly unaware of police presence [until] the arrest team began its raid on the residence," thus leaving no opportunity for defendants to destroy evidence of criminal activity. The police officers also observed that defendants were unaware of their presence during the sneak and peek, and there was thus no reasonable belief that defendants would destroy any evidence. See State v. Walker, 213 N.J. 281, 296 (2013). There is also no indication that police attempted to render emergency aid by entering the home or taking necessary steps to secure the premises. See State v. Fartera, 330 N.J. Super. 527, 532-33 (App. Div.), certif. denied, 165 N.J. 530 (2000). The State has thus not overcome its burden in demonstrating that any exigent circumstances existed that would have allowed them to bypass the warrant requirement.
The State also relies on the "search incident to arrest" exception to the warrant requirement. An officer is entitled to "search an arrestee's person in order to protect himself and to insure that evidence is not destroyed." State v. O'Neal, 190 N.J. 601, 632 (Riviera-Soto, J., concurring) (quoting State v. Sims, 75 N.J. 337, 352 (1978)). As explained supra, however, no valid arrest occurred in this case. Without a valid arrest, this exception does not apply. Sims, supra, 75 N.J. at 352-53.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION