Opinion
DOCKET NO. A-1624-14T2
02-29-2016
STATE OF NEW JERSEY IN THE INTEREST OF J.A., Juvenile-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FJ-03-1352-14. Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Juvenile defendant J.A. appeals his adjudication of delinquency for second-degree robbery, arguing that the warrantless search and seizure of a stolen cell phone was not justified by consent or an exception to the warrant requirement. He further argues that his sentence is excessive.
We glean the following facts from the record. On May 30, 2014, Officer Jesus Serrano was dispatched to investigate a report of a "strong arm robbery" at a bus stop in Willingboro. Serrano spoke with the victim, who reported that while he was waiting at the bus stop, a black male wearing a hooded sweatshirt and camouflage shorts asked to use his cell phone. When the victim produced his phone, the suspect punched him in the arm and ran off with it. He described the phone as a gold and white Apple iPhone with a distinctive pink glittery case.
Officer Serrano assisted the victim in activating the phone's "Find my iPhone" feature, an application which tracks the location of a stolen or misplaced Apple device through the use of GPS technology. See Find My iPhone, http://www.apple.com/icloud/find-my-iphone.html. The application indicated the victim's phone was located at a house on Shelbourne Lane, a few blocks away from the bus stop. Officer Serrano called for assistance and proceeded to the address.
Officer Serrano testified that he and the other officers were familiar with the house and believed it to be vacant based on their past experience. Serrano looked through a window on the first floor of the house and noticed a pink glittery phone case, matching the description given by the victim, on a bed. One of the responding officers, Sharif Hewlett, testified he thought the house was vacant because "[t]here was no mail, no cars, no nothing . . . ." He noted there are about 1,500 vacant homes in Willingboro and often it is difficult to determine if a house is vacant because sometimes people just move out, leaving furniture and belongings.
The officers knocked on the door for approximately one minute. After receiving no response, Hewlett and fellow officer William J. Spanier found an unsecured kitchen window and entered the house.
Once inside, they encountered a young woman, later identified as J.A.'s sister, who had apparently been sleeping in another room. The officers explained why they were there and asked if there was anyone else in the house, to which she "shook her head like she didn't know."
Officer Hewlett testified that he wanted to continue searching the house for the young woman's safety, to make sure there was no one hiding there. The officers continued their search, looking in places where someone could be hiding.
Officers Hewlett and Spanier also saw the pink glittery phone case on a bed in one of the back rooms. Officer Hewlett also observed a pair of camouflage shorts on the floor. The officers finally found J.A. hiding in an upstairs bedroom. They handcuffed him and brought him downstairs. J.A. denied involvement in the robbery.
Detective Edward Walker was dispatched to the location. A few minutes after Walker's arrival, J.A.'s brother, R.B., arrived, followed by J.A.'s mother and step-father. Detective Walker testified that J.A.'s mother was irate with her son and gave the officers verbal consent to search the house. J.A.'s mother told Walker she was "sick of [J.A.'s] S-H-I-T" and that she had warned J.A. that "if he comes here acting up he's got to go." After giving her verbal consent to search, J.A.'s mother signed a written consent form.
J.A.'s brother, R.B., then told officers that if the phone was not in J.A.'s room, it would be in the room of their younger brother, T.J. R.B. then proceeded upstairs, followed by Detective Walker, and went to a closet in T.J.'s room, pulled out the phone, and handed it to Detective Walker, saying "is this what you're looking for?" Detective Walker testified he did not ask R.B. to search T.J.'s room or any other room in the house and that R.B. did so of "his own volition." He also confirmed that no evidence was seized until after J.A.'s mother had given consent to search the house.
After J.A. was arrested, the victim was brought to the Shelbourne Lane address, but was not able to identify J.A. J.A. was then taken to the Willingboro police station where he was advised of his Miranda rights by Detective Walker. J.A.'s mother was not present when the rights were read to him and Walker did not realize that J.A. was under eighteen. J.A. admitted to taking the cell phone from the victim.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
J.A. was charged with committing an act that would have constituted second-degree robbery, N.J.S.A. 2C:15-1(a)(1), if committed by an adult. J.A. filed motions to suppress statements made to police and evidence seized during the search. The trial court held a suppression hearing and heard the testimony of Officers Serrano, Spanier, and Hewlett, and Detective Walker.
At the conclusion of the hearing, the judge suppressed J.A.'s confession because the police questioned him without his mother being present. As to the seizure of the cell phone, the judge found that the officers' initial search was within the bounds of a valid "protective sweep," and that J.A.'s mother subsequently consented to the search and her consent was voluntary.
The judge noted that the timing of the search was crucial to his ruling. Because the officers were directed to the location by the iPhone tracking feature immediately after the robbery occurred, they had reason to believe that "since the phone was in the house that perhaps the robber was in the house[.]" After knocking with no answer, the officers entered through an unsecured window "in order to secure the interior of the home, i.e., check to make sure . . . that the robber fleeing from the scene did not burst into the home of innocent civilians and may have been holding them hostage inside." The judge implied this may not have been an acceptable course of action had the officers not arrived at the home immediately after the robbery took place.
The judge qualified his decision by cautioning that the 1,500 abandoned or unoccupied properties in Willingboro did not give the police "carte blanche to run around, look at a house, and if there's no car in the driveway to enter the home on the theory that it is abandoned."
Finally, the judge found that the victim's iPhone cannot be suppressed because it was seized by J.A.'s brother and handed to the police, thus there was no state action in the seizure. Although law enforcement "cannot use civilians as agents to conduct searches or to secure information that the officer could not himself . . . obtain," there is nothing to suggest that J.A.'s brother was acting at the direction of law enforcement when he found the phone and gave it to police.
The judge concluded that "law enforcement did not conduct a search even though they were authorized to do so, and there is nothing in the record to suggest that the actions of [J.A.'s] brother were not totally voluntary."
At trial, the judge heard the testimony of the victim, along with Officers Serrano, Spanier, and Hewlett, and Detective Walker. J.A. did not testify and called no witnesses. The judge determined that the State had proven beyond a reasonable doubt that J.A. committed the robbery.
The judge mistakenly cited the burglary section, N.J.S.A. 2C:18-2(a), rather than the robbery section, N.J.S.A. 2C:15-1(a)(1) in the Juvenile Order of Disposition.
The judge found aggravating factors (c), (d), (g), (i), and (1), and no mitigating factors. He noted J.A. had a long history of prior adjudications, two of which would be crimes if committed by an adult; that J.A. had no respect for authority or the rights of others; and that he needed to be deterred since he had failed to take advantage of the numerous rehabilitative opportunities presented to him. The judge imposed a two-year custodial term at the New Jersey Training School for Boys, followed by an eight-month term of supervised release, fines, and penalties.
On appeal, J.A. raises the following points:
POINT I
THE WARRANTLESS ENTRY INTO J.A.'S HOME VIOLATED HIS RIGHTS UNDER THE 4TH AMENDMENT TO THE FEDERAL CONSTITUTION AND ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION BECAUSE POLICE HAD NO OBJECTIVE BASIS TO FIND THE HOME ABANDONED, NO JUSTIFICATION FOR A PROTECTIVE SWEEP, AND NO CONSENT BEFORE CONDUCTING THE SEARCH.
A. POLICE HAD NO OBJECTIVE, REASONABLE BASIS TO CONCLUDE THAT J.A.'S HOME WAS ABANDONED.
B. POLICE HAD NO REASONABLE BASIS TO CONDUCT A PROTECTIVE SWEEP OF J.A.'S HOME.
C. J.A.'S MOTHER'S CONSENT TO THE SEARCH WAS NOT VOLUNTARY BECAUSE THE POLICE HAD ALREADY COMPLETED THEIR INITIAL SEARCH WHICH REVEALED THE PHONE CASE AND CAMOUFLAGE SHORTS.
D. THE STATE FAILED TO PROVE THAT THE CELL PHONE WAS SEIZED AFTER [J.A.'S] MOTHER CONSENTED TO A SEARCH OF THE HOME.
E. THE FACT THAT J.A.'S BROTHER WAS THE ONE WHO LOCATED THE PHONE IS IRRELEVANT BECAUSE HE WAS ACTING AS AN AGENT OF THE POLICE.
POINT II
THE TRIAL COURT IMPOSED AN EXCESSIVE 2 YEAR DISPOSITION AT THE NEW JERSEY TRAINING SCHOOL FOR BOYS WITHOUT PROPERLY CONSIDERING J.A.'S BEST INTEREST OR MITIGATING FACTORS ON THE RECORD.
In reviewing a decision on a motion to suppress, we must uphold the factual findings of the trial court's decision as long as they are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243 (2007). We accord deference to those findings which are substantially influenced by the trial court's opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy. State v. Johnson, 42 N.J. 146, 162 (1964). We will only disturb a trial court's factual findings if they are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162).
J.A. argues that the officers had no reason to believe the Shelbourne Lane residence was abandoned, and the judge erred in finding the officers' search constituted a protective sweep because that doctrine applies only when law enforcement is already lawfully inside a home.
"A search conducted without a warrant is presumptively invalid, and the burden falls on the State to demonstrate that the search is justified by one of the 'few specifically established and well-delineated exceptions' to the warrant requirement." State v. Frankel, 179 N.J. 586, 598 (2004) (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298-99 (1978)).
Proof of both exigent circumstances and probable cause "may excuse police from compliance with the warrant requirement." State v. Walker, 213 N.J. 281, 289 (2013) (quoting State v. Bolte, 115 N.J. 579, 585-86, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989)). In determining whether the circumstances in a particular case are exigent, courts consider several factors:
(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause[;] and (9) the time of the entry.
[State v. Deluca, 325 N.J. Super. 376, 391 (App. Div. 1999), aff'd, 168 N.J. 626 (2001).]
"[E]xigent circumstances will be present when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." State v. Johnson, 193 N.J. 52 8, 55 3 (2008), certif. denied, 201 N.J. 272 (2010).
In State v. Cassidy, the Court held circumstances are exigent "when they 'preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both.'" 179 N.J. 150, 160 (2004) (quoting State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974)).
Guided by these principles, we are satisfied the record evidence supports the trial court's finding of both probable cause and exigent circumstances for the initial entry of the police into the home without a warrant.
The record presents the novel aspect of cutting-edge technology, which allowed police to track J.A. by following the stolen iPhone's signal to the Shelbourne Lane address within minutes of the robbery. Some corroboration of the phone's presence in the home was immediately obtained when Officer Serrano looked through a window and saw a distinctive pink glittery case matching the description provided by the victim.
Apple introduced the Find My iPhone feature in 2011. https://www.apple.com/pr/library/2011/10/04Apple-to-Launch-iCloud-on-October-12.html --------
Based on the signal transmitted by the stolen iPhone emanating from the Shelbourne Lane residence and the subsequent corroborative observation of the case inside the same residence, the officers had a reasonable and well-grounded belief that the person who robbed the victim minutes earlier was inside the home.
We must also consider whether Officer Serrano's pursuit of J.A., contemporaneously guided by signals emitted from the iPhone, fell under the "hot pursuit" doctrine and constituted a valid warrantless entry into the Shelbourne Lane house. In Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 297-98, 87 S. Ct. 1642, 1645-46, 18 L. Ed. 2d 782, 786-87 (1967), the Supreme Court recognized the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons.
In Hayden, police received information from witnesses that a suspect in an armed robbery had fled to a specific address. Ibid. Within minutes, the police arrived and searched the residence, finding the defendant and his weapons. Ibid. In upholding the warrantless search and seizure, the Supreme Court emphasized the short time between the suspect's flight into the residence and the officers' arrival. Id. at 298, 87 S. Ct. at 1646, 18 L. Ed. 2d at 787. In United States v. Santana, the Court concluded that although hot pursuit required some sort of a chase, "it need not be an extended hue and cry 'in and about [the] public streets.'" 427 U.S. 38, 43, 96 S. Ct. 2406, 2410, 49 L. Ed. 2d 300, 305 (1976).
In State v. Davis, we held the "hot pursuit" exception applied where the victim told officers the suspect in an armed robbery was at a specific address and the officers "within minutes took up [the] pursuit." 204 N.J. Super. 181, 184 (App. Div. 1985), certif. denied, 104 N.J. 378 (1986),
Had Officer Serrano identified J.A. as the suspect and physically followed him to the Shelbourne Lane house, the hot pursuit doctrine, in all likelihood, would have permitted the warrantless entry. Instead of observing J.A.'s retreat to his home, the officer tracked him by following the signals emitted from the victim's stolen phone; those signals led the officer directly to J.A.'s home shortly after the robbery.
J.A.'s juvenile complaint indicates the robbery took place at 9:17 a.m. at the bus stop located at Levitt Parkway and Babbitt Lane. After J.A. was arrested, the victim was driven to the Shelbourne Lane address, three blocks from the bus stop, to attempt to identify J.A. as his assailant. Records indicate this showup occurred at 9:50 a.m. Thus, it took less than thirty-five minutes from the time of the robbery for the police to track J.A. to Shelbourne Lane and arrest him. Clearly, there was a close temporal link between a serious criminal event, during which physical force was used against the victim, and the police pursuit that resulted in a warrantless entry. The record supports the trial court's finding that the officers were directed by the iPhone tracking feature to J.A.'s home immediately after the robbery occurred.
The technology that led police to J.A.'s home provided some of the exigency supporting their entry. As Officer Serrano explained, the Find My iPhone application emitted a tracking signal only when the phone was turned on. Two minutes after Officer Serrano activated the Find My iPhone application, the phone was turned off. Serrano felt immediate action was required because once the phone was turned off, it could be moved and the GPS capabilities would not function.
Serrano's concern was reasonable as the small cell phone could easily have been destroyed or hidden, and was the only physical evidence linking J.A. to the robbery. "Generally, when there is probable cause to believe a defendant has committed a crime and eluded apprehension by the police by retreating into his home, there is authority for the police, who are in immediate or continuous (i.e., 'hot') pursuit, to follow the fleeing felon, and there is a reasonable expectation that a delay in obtaining a warrant would result in the destruction of evidence." State v. Laboo, 396 N.J. Super. 97, 103 (App. Div. 2007). We are satisfied that the police acted reasonably within the meaning of the Fourth Amendment in entering the residence to secure the area, determine whether there was any danger to anyone in the house, and prevent destruction of the proceeds of the robbery.
J.A. next argues that the evidence recovered after his mother gave consent to search the house should be suppressed because her consent was not given voluntarily. He reasons that his mother's consent was irrelevant because the officers had observed the items that were eventually seized while they were conducting their initial search, before obtaining consent. Thus, he argues that his mother's consent was not knowing and voluntary because she "might well have deemed it pointless to refuse . . . ."
Preliminarily we note that Officers Serrano, Spanier, and Hewlett all testified that the phone case was observed during their initial search, and Officer Spanier stated that the phone case was not seized during the initial search for the suspect. Similarly, the camouflage shorts were observed during the initial search, but not seized.
Our Supreme Court has instructed that protective sweeps are permissible where "(1) law enforcement officers are lawfully within the 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." State v. Davila, 203 N.J. 97, 125 (2010). When those conditions are met, the sweep must be cursory, and "limited in scope to locations in which an individual could be concealed." Ibid.
Here, the officers were legally within the premises because of the doctrine of exigent circumstances, and had a reasonable articulable suspicion that the robbery suspect was inside as well. Due to the nature of the crime, it was reasonable for officers to assume that the suspect could pose a danger to themselves or others.
The officers only looked in locations where a person could be hiding and did not search for evidence of the robbery at this time. Therefore, their observation of the phone case on a bed and the camouflage shorts on the floor was incidental, and not improper.
Notwithstanding exigent circumstances, to justify a warrantless consent search, the State is obligated to prove that the person who provided consent did so voluntarily and that she knew of her right to refuse consent to the search. State v. Johnson, 68 N.J. 349, 354 (1975). Consent must be unequivocal and specific, and freely and intelligently given. State v. King, 44 N.J. 346, 352 (1965).
A written consent is the most effective way for the State to meet its burden of showing a voluntary and knowing consent. State v. Daley, 45 N.J. 68, 76 (1965) (The existence of a written waiver points strongly to the fact that the waiver was specific and intelligently made.).
Detective Walker testified that J.A.'s mother gave verbal consent to search the house upon her arrival and later signed a written consent, which provided that she had the "right to refuse to allow the search," and that if she did refuse, her "refusal will be respected."
The trial judge found that J.A.'s brother arrived two to three minutes after Detective Walker, and J.A.'s mother arrived shortly thereafter, and "initially gave verbal consent and then she was provided with the consent form . . . ." The judge also found that, prior to the execution of the written consent, neither Detective Walker nor any other officer had at that point conducted a search of the residence.
There is no evidence in the record to suggest that J.A.'s mother was hesitant in giving consent to the search. On the contrary, Detective Walker testified that she seemed "very upset, very irate." The trial judge found "[t]here is no evidence whatsoever in the record to suggest that the consent of [J.A.'s mother] was, A, not voluntary; that, B, [she] did not have a full opportunity to read the document in question; and that when she signed it, she intended to permit law enforcement to search the residence . . . ."
J.A. next argues that because the record reflects that J.A.'s brother arrived before his mother, it is unclear whether the phone was seized before or after his mother gave her consent. He places emphasis on the following passage from Detective Walker's testimony, concluding that there is evidence in the record that the cell phone was retrieved before consent was given:
THE COURT: — just to clarify, Detective Walker . . . you arrived at the scene. Again there were other fellow law enforcement officers there. [R.B.], the brother of [J.A.], arrives two or three minutes thereafter. [J.A.'s mother] arrives shortly after that, correct?
THE WITNESS: Yes, sir.
. . . .
THE COURT: Okay. Having obtained consent to search the residence, do I understand that [R.B.] was then sent into the residence and returned with the pink glittery cell phone that he claimed he found in the second floor
closet belonging to one of his other brothers, T.J., correct?
THE WITNESS: That would not be correct, Your Honor.
. . . .
THE WITNESS: [R.B.] arrived on the location, said hey, guys. What's going on. He was explained an ongoing investigation was being conducted where his brother — it was alleged that his brother robbed somebody of their cell phone. . . . He said [did] you guys find the phone? I said nope. He goes and then [R.B.] stated, oh, if it's not in his room, it's probably in T.J.'s room cause they're like that. . . . And he walked upstairs and he proceeded to look in, I guess . . . T.J.'s room . . . and he says is this what you're looking for? . . . Might have been all but a minute if that.
J.A. claims that the phone was found "well before J.A.'s mother arrived at the home and consented to the search." However, this testimony does not support that conclusion. Rather, it appears that Detective Walker intended to clarify that J.A.'s brother was not "sent" in to find the phone, but rather acted of his own volition.
The trial judge's factual findings reflect the testimony of the officers and Detective Walker; the judge found that J.A.'s mother "gave verbal consent to search the residence and subsequent to that . . . a signed consent form [was] executed by [J.A.'s] mother." At this point, Detective Walker was about to execute a consent search when J.A.'s brother voluntarily retrieved the cell phone and handed it to him.
The judge found the officers' testimony established a timeline consistent with a valid search. We are satisfied that there is adequate evidence in the record to support these findings.
Finally, J.A. claims that, given the minimal nature of the robbery, J.A.'s expressed commitment to turning his life around, and the fact that the trial judge misunderstood J.A.'s detention history, the judge erred in sentencing him to two years at the New Jersey Training School for Boys.
"The rehabilitation of juvenile offenders is the goal of the juvenile justice system." State in Interest of K.O., 217 N.J. 83, 92 (2014). The Juvenile Code "balances its intention to act in the best interests of the juvenile and to promote his or her rehabilitation with the need to protect the public welfare." Ibid. "While rehabilitation of juveniles has historically been at the heart of juvenile justice, modern experiences with serious juvenile crimes have elevated the importance of punitive sanctions in juvenile dispositions." Ibid. (citations omitted).
The trial judge first found aggravating factor (c), the character and attitude of the juvenile indicate he is likely to commit another offense. N.J.S.A. 2A:4A-44(a)(1)(c). The judge relied on J.A.'s past history, describing it as "one juvenile act after another, one juvenile court type intervention, then another act of delinquency," and the fact that the victim would have been visibly vulnerable to J.A., making the offense "predatory" in nature.
The judge also found factor (d), the juvenile's prior record and the seriousness of any acts for which the juvenile has been adjudicated delinquent, and factor (g), the need for deterring the juvenile and others from violating the law. N.J.S.A. 2A:4A-44(a)(1)(d),(g). These factors were accorded "overwhelming weight" because the judge found J.A. "has been to every place he could be in the juvenile justice system," including the Training School for Boys at Jamesburg, and nothing has succeeded in deterring him. The judge noted that J.A. previously received a suspended sentence of two years at Jamesburg and a two-year probation, but he never actually served time at Jamesburg.
The judge also found factor (i), the juvenile was adjudicated on two separate occasions of acts which, if committed by an adult, would constitute crimes, and factor (1), the threat to the safety of the public or any individual posed by the child. N.J.S.A. 2A:4A-44(a)(1)(i),(1). The court determined that "based on his behaviors the court cannot help but conclude that he is a threat to the safety of the public and that is where this court finds itself when it reaches a point where it has to deviate from the mantra and again act consistent with public safety."
The judge found no mitigating factors and concluded that "eventually the hour glass runs out, that [J.A. has had] each and every opportunity presented to [him] and [he did] not take advantage of it." The judge's decision finds ample support in the record.
As the judge mistakenly cited the burglary section, N.J.S.A. 2C:18-2(a), rather than the robbery section, N.J.S.A. 2C:15-1(a)(1) in the Juvenile Order of Disposition, we remand for the correction of this clerical error.
The adjudication of delinquency is affirmed and the matter is remanded for correction in conformity with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION