Opinion
DOCKET NO. A-3244-13T1
07-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. QUINTON SMITH, a/k/a TERRANCE SMITH, QUINCE T. MCDOWELL, QUINTON MCDOWELL, CLINTON PITTMAN, MAURICE PITTMAN, QUINTON PITTMAN, TERRANCE PITTMAN, DORAIN SMIT, CLINTON SMITH, DESMOND SMITH, QUINCY T. SMITH, QUINTAN T. SMITH, SALEEM SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Beverly I. Nwanna, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Suter. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 12-08-0574, 12-08-0575, and 13-04-0357. Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Beverly I. Nwanna, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Quinton Smith appeals from an order denying his motion to suppress evidence of a BB gun seized during the execution of a search warrant. We affirm.
After his motion to suppress evidence was denied following an evidentiary hearing, defendant pleaded guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7; second-degree possession with intent to distribute heroin or cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1; third-degree possession with intent to distribute heroin or cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree maintaining a fortified structure to distribute or possess with intent to distribute or dispense a controlled dangerous substance, N.J.S.A. 2C:35-4.1; and third-degree burglary, N.J.S.A. 2C:18-2(a).
The court imposed a ten-year term of imprisonment, with a five-year period of parole ineligibility, on all but the charges for burglary and maintaining a fortified structure. For the latter two charges, the court imposed a five-year term of imprisonment, with no period of parole ineligibility. All sentences are running concurrently. Thus, in the aggregate, the court imposed a ten-year sentence, with a five-year period of parole ineligibility.
The pertinent facts that emerged from the evidentiary hearing were as follows. Defendant occupied the first floor unit of a two-story, two-family residence in Plainfield with his girlfriend. Based upon information provided by a confidential informant and surveillance of the property, Detective Joseph Mulligan of the Plainfield Police Division suspected defendant was selling drugs from his home and applied for a search warrant of defendant's home and person.
In his affidavit in support of a search warrant, Mulligan detailed his background and experience in narcotics investigations, his reasons for having probable cause to believe defendant was engaging in drug trafficking out of his home, why a no-knock search warrant was necessary, and provided details about both defendant's physical appearance and the outside appearance of the building in which he lived. Based upon the affidavit, the court signed a search warrant that provided the specific address of defendant's home and indicated the premises was on the first floor of building. The warrant further provided that it "was for the person of Quinton Smith, and all areas of ingress, egress, and access."
The purpose of a no-knock search warrant is to give the police the benefit and advantage of surprising those inside of the premises to be searched. State v. Watts, 223 N.J. 503, 517 (2015).
We have not disclosed the precise address in order to protect the privacy of the residents in that building. --------
Just before executing the search warrant, the police apprehended and arrested defendant at a location away from his home. After entering the first floor unit and detaining his girlfriend, who was home at the time, the police searched and discovered controlled dangerous substances in the bathroom and bedroom of the unit. While in the living room, the police noticed a door and, suspended horizontally across the door was a wooden board, which was held up in place by two clamps on each side of the door frame.
At the hearing, Mulligan testified the police merely lifted up and removed the board and opened the door. He could not recall if there was a lock on the door, but noted there was no need to pry the door open as it was already "open," indicating the door was unlocked at the time. When the police opened the door, they discovered stairs leading down into the basement. The door, which was made out of wood, opened into the living room and not in the direction of the basement. The police went down the stairs and noticed a duffel bag from which was protruding part of a BB gun at the foot of the stairs. The police seized the gun.
C.M., the girlfriend's mother, also testified. C.M. rented the first floor unit for her daughter's use. Sometime thereafter, defendant moved into the unit. C.M. claimed that when she initially met the landlord, he advised that the basement, where he kept items he needed to maintain the house, was not part of the first floor unit. The landlord accessed the basement through a door that led directly from the basement to the outside of the house.
C.M. also testified that the door between the living room and the basement was locked at all times. Although she had never been in the basement or even through the door, she claimed there was a key hole on only the basement side of the door, suggesting the purpose of the lock was to keep those in the first floor unit from entering the basement. She also noted the door was "bolted" and that there was a board across the side of the door that faced the living room, which was "nailed in." She further testified that when she entered the unit immediately after the search, the door between the living room and the basement had been removed from one of the three hinges and that the deadbolt had "popped off."
At the hearing, defendant did not contend there was insufficient probable cause to issue the warrant, but argued the search of the basement and ensuing seizure of the gun exceeded the permissible scope of the warrant, and that no exigent circumstances existed to justify the search. The trial court disagreed. The court credited Mulligan's testimony, noting that as C.M. had never gone through the door that separated the living room from or had been in the basement, her claim there was a lock on the door and that it was exclusively controlled only from the basement side of the door was unfounded. Thus, although defendant could prevent anyone in the basement from entering the first floor unit by placing the board across the door, he or anyone in the unit could access the basement.
The court reasoned that because the language in the search warrant gave the police permission to search not only the first floor unit but also all areas of ingress, egress, and access, the police officers did not exceed the scope of their authority as provided in the search warrant when they searched the basement, because the basement was accessible from the living room.
On appeal, defendant raises the following point for our consideration.
POINT I - THE SEARCH WARRANT DID NOT INCLUDE THE BASEMENT OF [DEFENDANT'S UNIT], AND THE
TRIAL JUDGE ERRED WHEN HE FAILED TO SUPPRESS THE BB RIFLE THAT THE POLICE FOUND IN THE BASEMENT OF THAT BUILDING DURING AN UNAUTHORIZED SEARCH.
In his brief before us, defendant does not challenge the trial court's factual findings. His primary argument is that because there was no need to enter the basement in order to gain access to the first floor unit, the officers were not permitted to search the basement. Specifically, defendant argued that instead of examining "whether the police needed to access or enter the basement in order to search the first floor — which was the proper focus of the warrant — the trial judge instead . . . concluded that the warrant was valid because the police could enter the basement once they were inside the first floor apartment."
A search warrant is presumed valid and the burden of establishing its invalidity rests upon the defendant. State v. Singleton, 158 N.J. Super. 517, 525 (App. Div. 1978); State v. Schumann, 156 N.J. Super. 563, 565 (App. Div. 1978). Under the Fourth Amendment to the Federal Constitution and Art. I, Par. 7 of the New Jersey Constitution, a search warrant must "particularly" describe the area to be searched both to limit discretion of the executing officer and to sufficiently describe the area so that the executing officer can reasonably ascertain the location and search only those places appropriate under the scope of the warrant. State v. Reldan, 100 N.J. 187, 195 (1985) (citing Harris v. United States, 331 U.S. 145, 152, 67 S. Ct. 1098, 1102, 91 L. Ed. 1399, 1407 (1947)).
The scope of a search warrant is determined by the language in the warrant describing the area and persons to be searched. Reldan, supra, 100 N.J. at 211. Although "pin-point precision" is not required, the warrant must describe the premises to be searched with reasonable accuracy. State v. Wright, 61 N.J. 146, 149 (1972); State v. Bisaccia, 58 N.J. 586, 588 (1971).
Here, the warrant permitted a search of defendant and the first floor unit, as well as "all areas of ingress, egress, and access" to that unit. The wording of the search warrant specified the limit of the warrant's scope to the first floor unit, areas available to a person going to or leaving from the apartment, and areas from which access to the apartment could be obtained.
Although there was evidence the landlord did not permit the occupants of the unit to use the basement, nevertheless, the basement was an area of egress to the first floor unit, as well as an area of ingress from the unit. More important, one could access the basement directly from the inside of the first floor unit. While one in the unit could prevent access from the basement to the unit by hanging the board across the door that separates the two areas, there is no question one in the unit could choose to enter the basement. Accordingly, the police officers' search of the basement did not exceed the scope of the warrant.
To the extent any argument raised by defendant has not been addressed in this opinion, it is because we are satisfied that the argument lacked sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION