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State v. Huston

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 22, 2016
DOCKET NO. A-5141-14T2 (App. Div. Dec. 22, 2016)

Opinion

DOCKET NO. A-5141-14T2

12-22-2016

STATE OF NEW JERSEY, Plaintiff-Respondent, v. MATTHEW HUSTON, Defendant-Appellant.

Escandon, Fernicola, Anderson & Covelli, attorneys for appellant (David A. Gardner, on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Keri-Leigh Schaefer, Assistant Prosecutor, of counsel and on the brief).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Lihotz and Whipple. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 15-004. Escandon, Fernicola, Anderson & Covelli, attorneys for appellant (David A. Gardner, on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Keri-Leigh Schaefer, Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant appeals from the Law Division's June 3, 2015 judgment denying defendant's motion to suppress evidence, which was entered in a trial de novo. We affirm.

On May 22, 2014, at approximately 2:30 a.m., an officer of the Shrewsbury Borough Police Department, observed an individual inside a parked vehicle on a lawn adjacent to his residence. After backup was called, a second officer arrived to assist. The officers observed an individual either asleep or unconscious in the driver's seat of the vehicle while the lights were on. The first officer knew the individual to be defendant's brother. The first officer was familiar with the man in the truck and his family and knew the front door was usually locked and no one used it, so the best way to contact someone inside was through the rear entrance. Once defendant's brother woke up, the first officer requested the second officer to walk to the rear entrance of the residence and alert a family member to escort defendant's brother safely inside.

Parties have cited to exhibits such as police reports submitted to the trial court which were not provided to this court. We rely upon the record as submitted. --------

The second officer walked to the back door of the residence, and as he knocked on the door, he heard a loud noise behind him. The officer observed defendant standing next to patio furniture. He asked defendant to display his hands, but defendant placed his hands inside the pockets of his shorts. Defendant pulled out his cell phone, but because the cell phone's flashlight application was illuminated, the officer observed a metal object in defendant's pocket. The officer reported, based upon his training and experience, he believed the metal object was a knife. Defendant was instructed to place his hands on the table, and the officer reached into defendant's pocket. The officer removed a pair of nail clippers and a glassine bag of marijuana from defendant's pocket. Defendant was arrested for possession of under fifty grams of marijuana contrary to N.J.S.A. 2C:35-10(a)(4).

A suppression hearing was held at the Shrewsbury Municipal Court on November 4, 2014. On January 6, 2015, the municipal court judge heard testimony from the officers and denied defendant's motion to suppress. Defendant entered into a conditional guilty plea, reserving the right to appeal the denial of the suppression motion. Defendant appealed to the Superior Court. The Law Division judge considered the testimony de novo on June 3, 2015, and denied defendant's motion. This appeal followed.

On appeal defendant argues:

POINT I.
THE COURT ERRED IN CONCLUDING THAT THE ARRESTING OFFICER HAD JUSTIFICATION FOR BEING
IN THE UNLIT BACKYARD OF DEFENDANT'S RESIDENCE AT 2:30 AM.

POINT II.
REMOVING A GLASSINE BAG FROM DEFENDANT'S POCKET TO CONDUCT A SEARCH OF ITS CONTENTS WAS NEITHER SUPPORTED BY PROBALE CAUSE, NOR ANY WARRANT OR EXIGENCY, AND SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE IN THIS CASE.

POINT III.
DEFENDANT'S INVESTIGATORY STOP AND FRISK WERE ILLEGAL BECAUSE NOTHING REASONABLY INDICATED THAT CRIMINAL ACTIVITY WAS AFOOT IN DEFENDANT'S BACKYARD AND THE SCOPE OF THE FRISK EXCEEDED TERRY [2] PARAMETERS.

POINT IV.
DEFENDANT'S MOMENTARY SEIZURE WAS NOT SUPPORTED BY PROBABLE CAUSE TO BELIEVE CRIMINAL OR OTHER ILLEGAL BEHAVIOR HAD OCURRED, WAS OCCURING OR WAS ABOUT TO OCCUR.

POINT V.
REACHING INTO DEFENDANT'S POCKETS TO GRAB FOR A KNIFE WAS BEYOND THE SCOPE OF A TERRY FRISK.

When reviewing a trial court's de novo decision of a municipal conviction, we must determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). We defer to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Because the trial court's determination is based on an application of law to established facts, we review the trial court's determination de novo. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

Defendant argues the police officer's presence in his backyard was an unjustified intrusion in violation of the Fourth Amendment. We disagree.

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, 313-14 (2014) (citing State v. Johnson, 193 N.J. 528, 541 (2008)). 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 United States Supreme Court has held 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, 565 U.S. 400, 407, 132 S. Ct. 945, 951, 181 L. Ed. 2d 911, 920 (2012) (citing United States v. Knotts, 460 U.S. 276, 286, 103 S. Ct. 1081, 1087, 75 L. Ed. 2d 55, 65 (1983) (Brennan, J., concurring)). 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, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576, 587-88 (1967) (Harlan, J., concurring)).

Protection of the home is the "chief evil" the wording of the Fourth Amendment aims to protect. 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)).

Curtilage is the area surrounding the home that is considered "part of the home itself for Fourth Amendment purposes." Jardines, supra, ___ U.S. at ___, 133 S. Ct. at 1414-15, 185 L. Ed. 2d at 501 (citing Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 1742, 60 L. Ed. 2d 214, 225 (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 "[t]he front porch is the classic exemplar of an area adjacent to the home and 'to which the activity of home life extends,'" and thus, the front porch is a constitutionally protected area. Ibid.

Whether a part of the curtilage is afforded Fourth Amendment protection depends on

the proximity of the area . . . to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

[United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35 (1987).]
Importantly, portions of the curtilage that serve as the method of access for visitors to the location is only considered a "semi-private area," so police officers on the property for a legitimate purpose can make observations from "places visitors could be expected to go" and their observations would not violate the Fourth Amendment. State v. Johnson, 171 N.J. 192, 209 (2002) (quoting 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 2.3(f) (3d ed. 1996)).

For those reasons, the "police may enter upon portions of private property normally open to the public, such as a front porch, and attain a plain view observation through a window." State v. Alexander, 170 N.J. Super. 298, 304 (Law Div. 1979), aff'd o.b., 173 N.J. Super. 260 (App. Div. 1980) (citing United States v. Hersh, 464 F.2d 228 (9th Cir. 1972)). Viewed in that context, the backyard in this case, even if considered part of the curtilage, has a diminished expectation of privacy because it was the generally understood access to the residence. The record demonstrates when the second officer approached the back door of defendant's residence, the officer had a reasonable belief that visitors ordinarily used that door because the first officer had advised him the back door was the best way to make contact with a family member.

Moreover, the record also demonstrates the officers were lawfully on the property pursuant to the community caretaking exception to obtain assistance for defendant's brother. See State v. DiLoreto, 180 N.J. 264, 275-76 (2004). The community caretaking exception excuses the warrant requirement when police officers are acting "to ensure the safety and welfare of the citizenry at large" in a way that is unrelated to their criminal investigatory duties. Id. at 276 (recognizing police serve dual roles: law enforcement and community caretaking). Courts should use a reasonableness standard to determine whether police conduct was appropriate or not in such circumstances. Ibid. In this case, the officer approached the house to seek assistance from family members and was not motivated by any search for evidence. While doing so, he then encountered defendant who appeared intoxicated and was unresponsive to the officer's requests to identify himself. Thus, the officer's presence in the yard was reasonable and did not violate the Fourth Amendment.

We further reject defendant's argument the subsequent frisk and search of defendant's pockets was unsupported by a warrant, probable cause, or exigency, and exceeded the scope necessary to protect the officer. The officer testified he was concerned for his safety because of the late hour, defendant's intoxicated unresponsive demeanor, and his observation of what he believed to be a weapon. To determine the existence of an objectively reasonable suspicion, we apply a totality of the circumstances test, "balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions." State v. Valentine, 134 N.J. 536, 546 (1994) (citation omitted). The standard governing protective searches is "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 543 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). A Terry search ordinarily consists of a pat down of exterior clothing. State v. Privott, 204 N.J. 16, 31 (2010).

Here, the officer observed a metal knife-like object because of the illumination of a cell phone from defendant's pocket. Under those circumstances, reaching into defendant's pocket was reasonable. We therefore conclude the officer's actions were reasonably limited to conduct that would "neutralize the threat of physical harm," Terry, supra, 392 U.S. at 24, 88 S. Ct. at 1881, 20 L. Ed. 2d at 908, and constitutionally permissible in the totality of the circumstances.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Huston

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 22, 2016
DOCKET NO. A-5141-14T2 (App. Div. Dec. 22, 2016)
Case details for

State v. Huston

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. MATTHEW HUSTON…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Dec 22, 2016

Citations

DOCKET NO. A-5141-14T2 (App. Div. Dec. 22, 2016)