Opinion
DOCKET NO. A-3986-12T4
12-02-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DONTAE HATHAWAY, Defendant-Respondent.
James P. McClain, Acting Atlantic County Prosecutor, attorney for appellant (Richard E. McKelvey, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Law Offices of Joseph A. Levin, LLC, attorneys for respondent (Melissa Rosenblum-Pisetzner, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Harris, and Guadagno.
On appeal from an interlocutory appeal of the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-08-2008.
James P. McClain, Acting Atlantic County Prosecutor, attorney for appellant (Richard E. McKelvey, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Law Offices of Joseph A. Levin, LLC, attorneys for respondent (Melissa Rosenblum-Pisetzner, on the brief). PER CURIAM
We granted the State leave to appeal an order of the Law Division suppressing evidence of a handgun obtained during a warrantless search of a hotel room registered to defendant Dontae Hathaway on March 28, 2012. We affirm.
On March 28, 2012, Atlantic City Police Officer James Armstrong was working special employment detail at the Taj Mahal Hotel and Casino. In the early morning hours, between approximately 3:00 a.m. and 4:00 a.m., Taj Mahal security radioed Armstrong and asked him to respond to the hotel's security podium. When he arrived, Taj Mahal security officers told Armstrong that an unknown white male had earlier approached the podium, and told them "he was robbed at gunpoint on the 70th floor[,]" that "he was taken inside of a room, . . . forced to undress, and then . . . robbed of $400 in cash." The alleged victim described his assailants as "two black males wearing dark clothing." The security officers on duty told Armstrong that the complainant appeared "animated" and "upset."
"Special employment detail," is detail outside the scope of normal police duties, working for a private contractor. The Taj Mahal hired a permanent full-time police officer after a series of homicides occurred on the property.
On cross-examination, Armstrong testified he was told the suspects were wearing black hoodies.
The alleged victim never mentioned the room number where the incident occurred. By the time Armstrong had arrived at the security podium, the complainant had already departed the scene and did not return. To date, he has never been identified.
Armstrong then asked the security officers to radio Taj Mahal's surveillance department and have them review the videotape "to confirm the presence of the alleged victim on the 70th floor of the casino [hotel]." According to Armstrong:
[t]he purpose of [his] request was . . . to confirm that an incident actually occurred on the 70th floor to match what [the victim] had told security . . . to see . . . if [the victim] was there with the two people that he described, if he was there at all[,] . . . what his demeanor was and possibly what had happened.
Armstrong did not personally review the tape at that time, because the casino hotel's surveillance system was located in the "Chairman's Tower" about a ten-to-fifteen minute walk from the security podium, and he "wanted to get up to the room to possibly contain it if there was somebody in there from the outside."
Armstrong, however, did not immediately proceed to the 70th floor. Instead, he waited to hear back from surveillance. In the meantime, he alerted Atlantic City's special weapons and tactics — SWAT — team to report to the Taj Mahal "because [he] didn't really know the rest of the circumstances . . . whether [there was] an armed gunman on the 70th floor . . . [or] if somebody was still in the room."
During the five minutes it took for the SWAT team to respond, the Taj Mahal surveillance officer who reviewed the videotape reported back to the security officer, who, in turn, relayed to Armstrong that the tape "confirmed that [the victim] . . . was seen on the elevator with two black males and [Armstrong] believe[d] . . . a white female. When the elevator [] stopped at the 70[th] floor," they all exited and entered Room 7023. After a period of time, "[t]he victim left the room quickly, he ran out, he was pushing the elevator buttons several times while he was looking over his shoulder back at the room, [and] he appeared frantic as if something had happened." The surveillance officer, however, never reported seeing anyone with a gun during his review of the tape.
On cross-examination, Armstrong testified that he was told by security that the people on the elevator were the victim, a white male, a black male and two women.
The motion judge reviewed the surveillance tape and found the information relayed by surveillance, through security, to Armstrong was not entirely accurate. For instance, while the victim appeared nervous on the tape, he was not in a panic. Instead, the videotape showed the victim exit the hotel room, walk to the elevator, light a cigarette, and push the elevator button.
Armstrong also viewed the videotape but only after having written his report based on what he was told by Taj Mahal security that the tape depicted. When questioned by the motion judge, Armstrong admitted that the videotape did not confirm everything he had previously been told. For instance, the tape depicts a white male exiting the hotel room with another white male and a black male.
Based on this third-hand information, Armstrong "was led to believe something had occurred in the room." At that point, Armstrong, along with four members of the SWAT team and three casino hotel security officers, assembled and positioned themselves outside Room 7023. They first employed the "call-out" tactic, placing a call into the room to instruct the suspects to come out in a "surrender position." This approach is "tactically safer [] as opposed to [] going in and bursting into the room." When they received no response, the team then "moved up closer to the door. . . . [and] noticed the door was left open as if somebody had left in a hurry. . . and the light was on inside the room." The door was cracked open with the hotel door's security latch. "[B]ecause the light was on, [they] were unsure i[f] there [was] somebody tied up, [or] i[f] there [was] somebody in the bathroom, i[f] somebody ha[d] been shot . . . unconscious, [if] they need[ed] help, [or] if there [was] an armed gunman in the[] [room]." Armstrong and the SWAT team made efforts to call into the room, but no one answered.
Next, the team proceeded to "pin the door," a procedure where the officers jam open the door, using a "doorjamb," allowing them to see inside the room. After again calling into the room to see if anyone was inside, Armstrong observed the room to be a suite, with two beds. Off to the right, there was a bathroom door, which was closed. A closet to the left was also visible. At this point, the officers were unable to see anything beyond the bathroom and closet.
The officers then entered the room, with guns drawn, "to see if there w[ere] any victims or suspects [inside]." Once inside the room, they observed "to the deep right" a bed on which there appeared to be women's clothing. At the bottom of the bed there was a cabinet, on which there was a "wide-open" black duffle bag. Inside the bag, a small caliber Beretta black automatic handgun was visible. The officers did not have to open the bag, or move anything out of the way, to see the gun. No one was found inside the room.
After discovering the gun, Armstrong learned from hotel security that Room 7023 had been reserved under defendant's name. Security then "locked the room out," and later that day, defendant was arrested when he returned to his hotel room.
A "lock out" refers to the hotel's policy in circumstances such as those occurring on March 28, 2012, that prevents a guest from reentering his or her room.
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Defendant was indicted on one count of unlawful possession of a handgun, N.J.S.A. 2C:39-5b. At the conclusion of the evidentiary hearing, the judge granted defendant's motion to suppress evidence of the weapon. The judge reasoned in part:
In viewing the totality of the circumstances as to what Officer Armstrong knew at the time, I am not satisfied that he
had a reasonable and articulable suspicion that there was an ongoing crime in this room. He didn't even have a suspicion that there was a gun in the room. His reason is there may have been hostages in the room. In view of the totality of the circumstances, I reject that because I think that very well could have been determined, and even on the information that Officer Armstrong had, I'm satisfied that the conclusion that should have been drawn is there were no hostages in that room. Certainly, if there were, the victim would have said something even if he didn't want to get involved and give his name. And then he takes off. Is it a concern that an allegation of an armed robbery took place? Absolutely. Should they have gone up to the 70th floor to search? Absolutely. But there is no reason that I can think of under any of the exigent factors set forth in State [v.] Alvarez, [238 N.J. Super. 571 (App. Div. 1990),] that would have prevented these police officers from securing the room and obtaining a search warrant. The factors, the degree of urgency involved, the amount of time necessary to obtain a search warrant, a telephonic search warrant could have been obtained within maybe a half an hour, more than enough time for the police to secure the room.
. . . .
I do not find that the police have probable cause to enter the room. I don't find that they even had a reasonable suspicion or articulable belief that any contraband or crime was being committed in the room and, therefore, I am going to grant the motion to suppress and the gun will be suppressed.
This appeal follows, in which the State raises the following issues:
I. THE INTEREST OF JUSTICE WARRANTS IMMEDIATE REVIEW OF AND RELIEF FROM THE LOWER COURT'S MARCH 7, 2013 ORDER.
II. THE DECISION OF THE TRIAL COURT TO SUPPRESS EVIDENCE IN THIS CASE WAS AN ERROR REQUIRING REVERSAL UNDER WELL-ESTABLISHED EXCEPTIONS TO THE WARRANT REQUIREMENT.
a. The Exigency Exception To The Warrant Requirement Necessitated Entry Of The Hotel Room.
b. Alternatively, The Evidence Is Admissible Under The Inevitable Discovery Doctrine.
I.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We must "uphold the factual findings underlying the trial court's decision so long as [they] are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal citations omitted); State v. Diaz-Bridges, 208 N.J. 544, 565 (2011). Furthermore, particular deference should be given "to those findings of the trial judge which are substantially influenced by his 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, 161 (1964); State v. Davila, 203 N.J. 97, 109-10 (2010). Therefore, a trial court's findings should not be disturbed unless they are so clearly mistaken "that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162. By the same token, we owe no special deference to any legal conclusions reached from the established facts. State v. Brown, 118 N.J. 595, 604 (1990). If the trial court acts under a misconception of the applicable law, we need not defer to its ruling. The trial court's application of the law is subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
II.
Consistent with both the United States and New Jersey Constitutions, U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7, "police officers must obtain a warrant . . . before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)); see also Robinson, supra, 200 N.J. at 3 ("[t]he warrant requirement embodied in both" the State and Federal Constitutions "limits the power of the sovereign to enter our homes and seize our persons or our effects"). Indeed, it has been said that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. U.S. Dist. Ct., 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972). Accordingly, a warrantless search is presumptively unreasonable and invalid. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980); State v. Pineiro, 181 N.J. 13, 19 (2004). The burden rests with the State to prove that the search "'falls within one of the few well delineated exceptions to the warrant requirement.'" Pineiro, supra, 181 N.J. at 19 (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).
While "the reasonable privacy expectations in a hotel room differ from those in a residence[,]" United States v. Agapito, 620 F.2d 324, 331 (2d Cir.), cert. denied, 449 U.S. 834, 101 S. Ct. 107, 66 L. Ed. 2d 40 (1980), occupants of a hotel room are nevertheless entitled to the protection of the Fourth Amendment. See Hoffa v. United States, 385 U.S. 293, 301, 87 S. Ct. 408, 413, 17 L. Ed. 2d 374, 381 (1966). "[A]n individual's Fourth Amendment rights do not evaporate when he rents a [hotel] room. . . ." United States v. Jackson, 588 F.2d 1046, 1052 (5th Cir.), cert. denied, 442 U.S. 941, 99 S. Ct. 2882, 61 L. Ed. 2d 310 (1979). Thus, such warrantless searches are prohibited by the Fourth Amendment absent probable cause and exigent circumstances. Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 743 (1984); Alvarez, supra, 238 N.J. Super. at 571.
III.
Probable cause, although an elusive concept, has been described as a "well grounded" suspicion that a crime has been committed. State v. Waltz, 61 N.J. 83, 87 (1972); State v. Burnett, 42 N.J. 377, 387 (1964). It is a fact sensitive determination, dealing with probabilities. Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890 (1949); Alvarez, supra, 238 N.J. Super. at 565.
While, "[i]nformation related by informants may constitute a basis for probable cause," State v. Jones, 179 N.J. 377, 389 (2004) (citation omitted), there must be a "substantial basis for crediting that information." Ibid. Indeed, an anonymous tip, without more, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity. Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990). Rather, "'[i]ndependent corroboration is necessary to ratify the informant's veracity and validate the truthfulness of the tip' and is considered 'an essential part of the determination of probable cause.'" Jones, supra, 179 N.J. at 390 (quoting State v. Smith, 155 N.J. 83, 95, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998)). Relevant to this analysis are the informant's "veracity" and "basis of knowledge." State v. Zutic, 155 N.J. 103, 110 (1998).
For such "anonymous" information to give rise to probable cause, police officers must not only corroborate its benign elements, e.g. its tendency to identify a determinate person, Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 261 (2000), but also must determine that the information is reliable in its "assertion of illegality." State v. Rodriguez, 172 N.J. 117, 129-32 (2002). In other words, some indicia of criminality must be present in order for such information to be considered reliable and to provide the probable cause necessary to justify a warrantless search.
In Rodriguez, supra, police received an anonymous tip that two men would be leaving Ocean City, traveling to Philadelphia to purchase narcotics, and then returning to the Atlantic City bus terminal. Id. at 121. Additionally, the tipster provided a specific description of each man. The first man was Hispanic, 5'10", wearing white shorts, a white tee shirt and gold rimmed glasses. Id. at 121-22. The second man was a heavy-set white male, 6'0" tall, with a receding hairline and mustache, and wearing a black tank top and dark shorts. Ibid. Based upon the information provided by the anonymous tipster, the officers established surveillance at the Atlantic City bus terminal at the time that the officers believed the men to be returning from Philadelphia. Id. at 122. There, the officers observed men who matched the description. Ibid. The men got off the bus and proceeded to a public telephone. Ibid. One of the men was carrying a bag. Ibid. The officers approached the men, asked the men to accompany them to the terminal's patrol office, and eventually garnered consent to search, after which narcotics were discovered. Id. at 122-23.
The Court held that the information provided by the anonymous tipster was insufficient; it did not provide reasonable and articulable suspicion of criminal wrongdoing to justify stopping the men. Rodriguez, supra, 172 N.J. at 129-32. The Court reasoned that the anonymous information did nothing more than describe the appearance of two men and accurately predict their location at the bus terminal. Id. at 131. Based upon "those benign elements of the . . . [anonymous] tip," it was not probable to conclude the tip would be reliable in "its assertion of illegality." Ibid. Moreover, there was nothing to corroborate that the men would be engaged in illegal drug activity and there was no information regarding the anonymous tipster's basis of knowledge to arrive at the conclusion that the men would be engaging in drug activity. Ibid.
Similarly, in State v. Richards, 351 N.J. Super. 289 (App. Div. 2002), we held that an anonymous tip did not provide reasonable and articulable suspicion to justify an investigative stop. Id. at 308. In Richards, the anonymous tipster stated that three "black males" were selling narcotics, that two of the males would be in front of a particular building, and that the third male would be near a pay telephone. Id. at 294. The tipster also claimed that one of the males was armed with a handgun. Ibid. About forty-five minutes elapsed between the tip and police arrival at the location. Id. at 294-95. When the officers arrived, they observed a black male at the pay phone, but did not observe any handgun or any bulges. Id. at 295. The man's silence made the officers uneasy, so the officers patted him down and discovered narcotics. Id. at 296-97. We held that the unverified and uncorroborated tip did not justify the police action. Id. at 308.
Here, we find the facts insufficient to support a finding of probable cause, as did the motion judge. Officer Armstrong had received information from a casino hotel security guard that an unknown male reported being robbed at gunpoint on the 70th floor by two black males. The credibility and reliability of the complainant, however, is completely unknown, see Illinois v. Gates, 462 U.S. 213, 237, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983), since the individual remains unidentified to date. As the motion judge noted, this "unknown individual [] wasn't serious enough about pursuing the perpetrator of the crime because he walked off and left."
Just as significant, the police did not corroborate this information in any of its essential elements. Armstrong did not personally review the videotape, but instead relied on a description of its contents by casino hotel surveillance personnel, who in turn relayed their version to the security guard, who ultimately reported to Officer Armstrong. Not only did the actual events depicted on the videotape ultimately prove the surveillance department's account to be less than accurate, but even that version failed to verify any criminal wrongdoing so as to render the alleged victim's information reliable in its "assertion of illegality."
In fact, surveillance did no more than verify that the alleged victim went to the 70th floor with several people, entered a room for a period of time, then left the room and proceeded to the elevator in a "panic." Surveillance never viewed anyone with a gun, and did not observe two black males wearing hoodies on the 70th floor, much less notice them possessing any type of weapon. Neither did Officer Armstrong receive information that the persons seen entering the hotel room with the alleged victim remained in that room. In fact, Officer Armstrong candidly admitted that he did not know what he was dealing with:
Because at the time I wanted [SWAT] en route there because I didn't really know the rest of the circumstances,[] I didn't know whether we had an armed gunman on the 70th floor, I didn't know if somebody was still in the room on the 70th floor . . . I really didn't know what happened.When questioned by the motion judge, Officer Armstrong stated, "[w]ell, our initial concern, your Honor, was we didn't know what we didn't know, and I didn't know. . . ."
The facts and circumstances available to the police, viewed in their totality and including the unverified information reported by the alleged victim, are not, in our opinion, sufficient to establish probable cause to support the warrantless search in this instance.
IV.
We agree with the motion judge that the State also failed to demonstrate exigent circumstances justifying the warrantless entry into the hotel room. "[C]ircumstances 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.'" DeLuca, supra, 168 N.J. at 632 (quoting State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974)). In order to sustain a search under this exception, the police must demonstrate that emergent circumstances existed, and, as previously noted, they must clearly show that probable cause existed at the time of the search. State v. Hutchins, 116 N.J. 457, 476 (1989). The issue in cases claiming exigency is whether an objectively reasonable officer, under the circumstances, would determine that there was insufficient time to obtain a warrant. See Alvarez, supra, 238 N.J. Super. 560; Hutchins, supra, 116 N.J. 457; State v. Johnson, 193 N.J. 528 (2008). "[T]he term 'exigent circumstances' is, by design, inexact. It is incapable of precise definition because, by its nature, the term takes on form and shape depending on the facts of any given case." Cooke, supra, 163 N.J. at 676.
Nevertheless, in Alvarez, we had occasion to apply the factors identified by the Court in State v. Hutchins, 116 N.J. 457 (1989), in determining whether an exigency existed to support the warrantless search of a suspect's hotel room. Alvarez, supra, 238 N.J. Super. at 567-68. Those factors are:
(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 contrabandWhile these factors define the parameters of the "exigent circumstance" exception to the warrant requirement, the determination in each case is "highly fact-sensitive." State v. Lewis, 116 N.J. 477, 487 (1989).
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.
. . . .
Another factor is whether the exigent circumstance can properly be characterized as 'police-created,' and, if so, whether it arose as a result of reasonable police investigative conduct intended to generate evidence of criminal activity.
[Alvarez, supra, 238 N.J. Super. at 568 (internal citations omitted).]
Here, the motion judge analyzed each factor, and found that virtually none applied. The judge found that: 1) the urgency was not that high, and that the officers had enough time to obtain a "telephonic search warrant . . . within maybe a half an hour," leaving the police with "more than enough time" to secure the room; 2) the officers did not have a reasonable belief that the gun or any other evidence was about to be removed, as they "had no idea anything was in the room"; 3) the hotel room "absolutely could" have been placed under surveillance while the officers waited for a search warrant and the officers could have "line[d] the hall"; 4) the police put themselves in more danger by charging into the room, rather than waiting outside for a warrant and attempting to call into the room; 5) the police had no information that the suspect was aware that police were on his trail; and 6) as previously noted, the facts establishing probable cause were extremely weak.
In support of its warrantless entry into the hotel room, the State relies on Alvarez. There, the police received a tip from a citizen that there was drug activity occurring on the fourth floor of a hotel. Alvarez, supra, 238 N.J. Super. at 563. The police then proceeded to the fourth floor, where they found only one occupied room, heard voices loudly discussing drug sales, and knocked on the door pretending to be the maid. Ibid. After the door was opened, the police saw drugs in plain view. Ibid. We upheld the search, finding the police had a reasonable belief that contraband would be destroyed. Id. at 568-70 (finding that drugs "can be rapidly secreted or destroyed.").
In contrast here, the police were concerned with the possibility of a weapon, which cannot be as easily destroyed or secreted. In fact, the police had no reliable information that a gun was probably located in Room 7023. And, in any event, its existence would not, in and of itself, establish an exigency. State v. De La Paz, 337 N.J. Super. 181, 188 (App. Div.), certif. denied, 168 N.J. 295 (2001); see also State v. Witczak, 421 N.J. Super. 180, 197 (App. Div. 2011); State v. Jefferson, 413 N.J. Super. 344, 354-55 (App. Div. 2010). In addition, unlike the police in Alvarez who knew the room was occupied and overheard the occupants discussing drugs, here the location of the suspect was unknown, and it was likely that the room was empty. The room was left unlocked and the door was ajar, no one responded to any of the officers' calls, and the officers did not report hearing anyone in the room. Moreover, Armstrong twice explained that "when people are robbed at gunpoint in a room and they're made to undress, it's actually a delay tactic so that they have to get dressed before they contact the police," so as to allow the suspect to get away.
Another factor militating against a finding of urgency is that it was possible, as the motion judge found, for the police to have secured the hotel room while making an application for a telephonic warrant, given the extant circumstances and the number of police present. See De La Paz, supra, 337 N.J. Super. 181 (holding that a warrantless entry is not valid when police can adequately secure the premises); see also, State v. Lashley, 353 N.J. Super. 405 (App. Div. 2002) (finding that the "ingress and egress" of the suspect could have been prevented when the police had the ability to secure the set up outside of the suspect's home). In this regard, an application for a warrant "may be communicated to the judge by telephone, radio or other means of electronic communication," provided that the conversations are recorded or otherwise memorialized in writing by the judge's contemporaneous notes. R. 3:5-3(b); State v. Fariello, 71 N.J. 552, 560 (1976). A telephonic search warrant may be issued only after the police show that they have probable cause to search, and that exigent circumstances exist which are sufficient to excuse them from appearing personally before the judge and obtaining a written warrant. State v. Valencia, 93 N.J. 126, 137 (1983). On the other hand, when circumstances are "sufficiently exigent that appearing before a judge to obtain a written warrant is either impossible or impracticable, but not so exigent that there is insufficient time to stabilize the situation and call for a warrant, police officers must obtain a telephonic warrant rather than conduct a warrantless search or seizure." State v. Johnson, 193 N.J. 528, 556 (2008) (holding that no exigent circumstances existed when, after the arrest of another man, police confiscated and then searched defendant's duffel bag without a warrant, simply because defendant was trying to carry it away from the area they were preparing to search); State v. Dunlap, 185 N.J. 543, 550-51 (2006) (holding that no exigent circumstances existed when officers searched defendant's parked car after his arrest on drug offenses because police had the ability to secure the vehicle pending issuance of a warrant and "underscor[ing] the availability of the telephone warrant" as a well-established procedure); State v. Lewis, 116 N.J. 477, 486-89 (1989) (finding no exigent circumstances when the warrantless entry was based on an uncorroborated tip that defendant had narcotics in his apartment and was preparing to leave, because there was "no practical impediment to the officers securing the premises and maintaining surveillance until a written or telephonic warrant was procured"). As the motion judge expressed, Armstrong could have applied for a warrant before entering the room.
Thus, application of the Hutchins factors to the facts of this case convinces us that the State has failed to carry its heavy burden of demonstrating exigent circumstances justifying the warrantless entry into defendant's hotel room. Absent both probable cause and exigent circumstances, the search of the hotel room was constitutionally impermissible and consequently the fruits of such a search were properly suppressed.
V.
Lastly, the State proffers for the first time on appeal an alternative basis for admitting the weapon, arguing the evidence would have been inevitably discovered by hotel staff. Because the issue was not raised below it may not be considered on appeal as it is neither jurisdictional in nature nor of substantial public importance. State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006). In any event, the State produced no evidence below to substantiate this claim. We therefore reject the argument as without merit.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION