Opinion
DOCKET NO. A-5197-09T1
09-28-2011
STATE OF NEW JERSEY, Plaintiff-Appellant, v. CESAR ALBERT VARGAS and CARMELO MARTINEZ, Defendants-Respondents.
Steven A. Yomtov, Deputy Attorney General, argued the cause for appellant (Paula T. Dow, Attorney General, attorney; Mr. Yomtov, of counsel and on the brief). Wayne Powell argued the cause for respondent Cesar Albert Vargas (Law Office of Wayne Powell, LLC, attorneys; Mr. Powell, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-06-00118-S.
Steven A. Yomtov, Deputy Attorney General, argued the cause for appellant (Paula T. Dow, Attorney General, attorney; Mr. Yomtov, of counsel and on the brief).
Wayne Powell argued the cause for respondent Cesar Albert Vargas (Law Office of Wayne Powell, LLC, attorneys; Mr. Powell, on the brief). PER CURIAM
We granted the State leave to appeal from an order suppressing evidence that was seized from defendant's apartment in a warrantless search and now reverse.
The testimony at the suppression hearing can be summarized as follows:
Defendant lived in an upstairs apartment in Vineland in a building owned by Henry Olaya. According to Olaya, defendant was a good tenant who paid his rent on time, "was quiet, kept to himself, [and] kept the place clean." On March 2, 2008, Olaya placed a notice in each of his tenants' mailboxes, including that of defendant, to inform them that he would be entering their premises "for the purpose of allowing a[n] appraisal to evaluate the property." On March 5, 2010, Olaya entered the apartment with the appraiser. Defendant was not home at the time.
The rent was due on the first of every month and was late after the fifth day of the month. When defendant had not paid his rent by March 5, 2008, Olaya made several attempts to contact him by phone and in person, all of which were unsuccessful.
Approximately two weeks later, on March 17, 2008, Olaya went to the building with his girlfriend to do some "spring cleaning." He again attempted to contact defendant by phone and by knocking on the door of his apartment, but received no answer. Olaya spoke with some of the other tenants in the building who said they had not seen or heard defendant coming in or out of the building for a couple of weeks and that his car had not been moved for "several days or a week or so[.]" There was a bag of trash left outside defendant's apartment on the front porch. His car was covered in pollen, and the back tires had deflated. Defendant's mailbox was filled with mail, including the letter Olaya had dropped off on March 2.
Concerned for defendant's well-being, Olaya called the police. Three police officers from the Vineland Police Department, including Sergeant Louis Carini and Patrolman John Calio, arrived in response to Olaya's call to 911. Olaya told the officers about his concern, stating he had not heard from defendant for over two weeks and that it was unusual for his calls to defendant to go unanswered. He informed the officers that the other tenants in the building had not seen defendant and that a letter he had placed in defendant's mailbox on March 2 had not been retrieved. Olaya also told the officers he did not have any contact information for defendant.
Calio testified about his observations at the scene, which were consistent with what Olaya had told them. Defendant's car had a flat tire, was dirty, and "looked like it hadn't been moved in several weeks." The mailbox was also full and "looked like [the mail] hadn't been taken out in several weeks." Calio said the officers did not speak to any of the other tenants in the building because no tenants were home at that time of day.
The officers contacted the Vineland police dispatcher and asked whether there had been any service calls from defendant's apartment in the prior weeks. Calio testified that "service calls" include calls for an ambulance, for help, and whether the resident had been arrested. Carini testified that the police dispatcher checked patient lists to determine if defendant was hospitalized.
The officers knocked on the door to defendant's apartment and identified themselves as Vineland police officers. There was no response. The officers looked through the windows of defendant's apartment. They could not see much through the windows and could not determine if defendant was inside. Carini testified that under the circumstances — Olaya not having any contact information for defendant, the mail piling up, the vehicle not being moved from the driveway, no one having seen or heard from defendant, no response at the door, and seeing no one in the window — the "protocol" under such circumstances was to "go inside somebody's house to find out if they're injured, possibly deceased."
Olaya used his keys to open the back door and entered the apartment with the officers. The officers called out for defendant and identified themselves. They searched the rooms for signs of defendant but did not open any drawers or containers. They did open closets because of the possibility that a person could be inside. In the living room, the officers observed a glass jar about six to eight inches high with green vegetation inside that appeared to be marijuana. The officers saw nothing in the apartment to indicate foul play.
Without being asked to do so, Olaya opened one of the drawers in the kitchen, where he found "two canning jars full of marijuana." Upon seeing the marijuana, one of the officers asked everyone to leave the apartment.
The officers left and obtained a search warrant for the apartment. The search conducted pursuant to the warrant resulted in the seizure of various items, including $47,001 in U.S. currency, a shotgun, a rifle, ammunition, two ballistic vests, a clear plastic bag containing white powder, eight mason jars with green vegetation, a clear bag containing one white pill, a clear bag containing vegetation, two digital scales, and measuring cups and pots with white powder residue.
As it turns out, defendant was absent because he had been arrested by the New Jersey State Police on March 6, 2008, after being the subject of a State Police investigation. At the suppression hearing, Detective Keith Moyer of the State Police testified that the Vineland Police Department was never informed of this investigation. Carini and Calio also testified that they were unaware of any such investigation.
The State argued that the officers' initial entry into defendant's apartment without a warrant was justified pursuant to the community caretaking doctrine. The trial court found the officers testimony that they were unaware of the State Police investigation credible and found that their actions were "divorced from the detection, investigation or acquisition of evidence relating to criminal activity." However, the court viewed the facts that raised the landlord's concern to also be explained by alternative reasons that did not implicate the safety of defendant or the community at large. Finding that, from an objectively reasonable standpoint, the officers "had no reason to conclude" that the safety of defendant or the community at large was in jeopardy, the court granted the motion to suppress the evidence found in defendant's apartment.
The State filed a motion for reconsideration, which was denied. In this appeal, the State argues that the trial court erred in requiring an immediate and emergent need for the police to act pursuant to the community caretaking doctrine.
After the trial court's decision in this matter, the United States Court of Appeals for the Third Circuit rendered a decision in Ray v. Twp. of Warren, 626 F.3d 170 (3d Cir. 2010), finding that the community caretaking exception to the warrant requirement does not apply to searches of residences. Id. at 177. The trial court supplemented its findings in a letter, citing Ray as further support for its granting the suppression motion.
There is a split of authority among the federal courts of appeals concerning the applicability of the exception in the home context, see United States v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006); United States v. McGough, 412 F.3d 1232, 1239 (11th Cir. 2005); United States v. Rohrig, 98 F.3d 1506, 1509 (6th Cir. 1996); United States v. Bute, 43 F.3d 531, 535 (10th Cir. 1994); United States v. Erickson, 991 F.2d 529, 533 (9th Cir. 1993); United States v. York, 895 F.2d 1026, 1029-30 (5th Cir. 1990); United States v. Pichany, 687 F.2d 204, 207 (7th Cir. 1982), a conflict not yet resolved by the United States Supreme Court. After Ray was decided, we continued to find the exception applicable to warrantless searches of residences "on a case-by-case, fact-sensitive basis." State v. Kaltner, 420 N.J. Super. 524, 539 (App. Div. 2011); see also State v. Witczak, 421 N.J. Super. 180, 195 (App. Div. 2011).
When reviewing the decision of a motion judge on a motion to suppress, we defer to the judge's findings "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. Elders, 192 N.J. 224, 244 (2007) (citing State v. Johnson, 42 N.J. 146, 161 (1964)), and "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." Id. at 244 (internal quotations omitted). We therefore defer to the motion judge's finding that the officers were unaware of the ongoing criminal investigation and that their actions were "divorced from the detection, investigation or acquisition of evidence relating to criminal activity." However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). For the reasons that follow, we are satisfied that the motion judge erred in concluding that the facts in evidence failed to satisfy the requirements of the community caretaking exception to the warrant requirement.
The Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution act to deter "unreasonable governmental intrusion into a person's home[.]" State v. Bogan, 200 N.J. 61, 72 (2009). Under these constitutional provisions, police officers must secure "a warrant from a neutral judicial officer before searching a person's property," State v. Diloreto, 180 N.J. 264, 275 (2004). Because the officers first entered defendant's home without obtaining a search warrant, the search is presumed to be invalid unless the State demonstrates that the search "is justified by 'one of the few specifically established and well-delineated exceptions to the warrant requirement.'" Bogan, supra, 200 N.J. at 73 (quoting State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 135 S. Ct. 108, 160 L. Ed. 2d 128 (2004)).
In Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), the United States Supreme Court found that such an exception existed when a police officer is engaged in "community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Id. at 441, 93 S. Ct. at 2528, 37 L. Ed. 2d at 715. Our Supreme Court has recognized this exception, Diloreto, supra, 180 N.J. at 275, and applied it to residences. Bogan, supra, 200 N.J. at 74-75.
The standard applied to the review of a warrantless search on community caretaking grounds reflects the recognized difference in the officers' pursuit of an objective that is separate and apart from that involved in enforcing the law. Diloreto, supra, 180 N.J. at 276.
The difference between the two stems from the officers' underlying motives. The law enforcement function includes conduct that is designed to detect or solve a specific crime, such as making arrests, interrogating suspects, and searching for evidence. Community caretaking, on the other hand, is based on a service notion that police serve
to ensure the safety and welfare of the citizenry at large.
[Ibid. (quoting John F. Decker, Emergency Circumstances, Police Responses, and Fourth Amendment Restrictions, 89 J. Crim. L. & Criminology 433, 445 (1999)).]
Because of the difference between the two roles, the officer performing a community caretaking function need not "demonstrate probable cause or an articulable suspicion to believe that evidence of a crime will be found." Ibid. To the contrary, for a warrantless search to fall within the community caretaking doctrine exception to the warrant requirement, the conduct of police must be "unconnected to a criminal investigation and objectively reasonable under the totality of circumstances." Id. at 278. Rather, the search must be "for the primary purpose of providing safety and protection from immediate harm to either a person or the public[,]" and this motive "must be a real one, and not a pretext to conduct an otherwise unlawful warrantless search." Bogan, supra, 200 N.J. at 75, 77.
In this case, the trial court found that the police officers' actions were unconnected to any criminal investigation, and defendant concedes that their initial entry into his apartment was not a pretext to conduct an otherwise unlawful search. However, the court concluded that the search could not be justified on community caretaking grounds because there was "no reason to conclude that" the safety of defendant or the community at large "was in jeopardy." (Emphasis added).
The notion that there must be an immediate need for police action before the community caretaking exception may apply stems in part from the fact that this exception has been used interchangeably with "variously formulated 'exigent circumstances,' 'emergency' or 'rescue' exceptions to the warrant requirement." Kaltner, supra, 420 N.J. Super. at 540. However, the community caretaking exception and the emergency category of exceptions are separate and distinct. Ibid.; Witczak, supra, 421 N.J. Super. at 192.
"[T]he relevant question in community caretaking situations focuses not on the compelling need for immediate action or the time needed to secure a warrant, but instead on the objective reasonableness of the police action in executing their service function." Kaltner, supra, 420 N.J. Super. at 541; see also Bogan, supra, 200 N.J. at 80. In Kaltner, we stated that, when a search is justified under the community caretaking exception, "courts must balance the nature of the intrusion necessary to handle the perceived threat to the community caretaking concern, the seriousness of the underlying harm to be averted, and the relative importance of the community caretaking concern." Kaltner, supra, 420 N.J. Super. at 542.
As to the first component of the "reasonableness" approach, the nature of the privacy interest invaded is of obvious concern, as is the degree of invasiveness of the intrusion. Most significant in this regard is the recognition of the constitutional distinction between searches of automobiles and searches of dwellings, and the special protections we afford the latter. And in recognizing the sanctity of the home, we must also take into account whether means less drastic or invasive than those used by official authority were available to secure the articulated purpose. Also where the intrusion into the dwelling is justified at its inception, "reasonableness still requires that it thereafter be carried out in a manner consistent with the factors supporting its initial legitimacy." In other words, the "reasonableness" inquiry does not end simply because police may have acted appropriately in their initial premises entry, but extends to whether their conduct once inside the dwelling exceeded the scope of their authority.
[Id. at 542-43 (citations omitted).]
The articulated purpose for the officers' initial entry into defendant's apartment was to ascertain whether he was injured or deceased. The concern that prompted this action originated with his landlord, who reported that defendant had not been seen for several weeks, that his car had not been moved in that time, that his mail had not been retrieved during that period and that defendant had not responded to numerous efforts by the landlord to contact him. Significantly, the landlord also reported that he was concerned because these actions, along with his failure to pay rent on time, were inconsistent with defendant's pattern of behavior in the past. The officers were able to independently verify some of these facts through their own observations. All told, these circumstances warranted a concern that defendant could be injured or dead. Here, the officers attempted to use "less drastic" means to determine if defendant was in need of help by knocking on the door themselves, contacting the police dispatcher to determine if there had been any service calls from the residence and having someone check to see if defendant was hospitalized. Those means failed to "secure the articulated purpose" and the officers were then justified in responding to the landlord's concern by entering defendant's apartment.
We then turn to the reasonableness of the officers' conduct after they entered defendant's apartment. As the landlord described their conduct, they called out for defendant and announced their identity. Receiving no response, they moved through the apartment, limiting their search to places that could accommodate a human body. While there was some marijuana in plain view, the officers did not expand the scope of their search in response. Rather, when the jars of marijuana were discovered independently by the landlord, the officers withdrew to get a search warrant.
In sum, the police conduct here was based initially upon a legitimate concern for defendant's welfare and divorced from any criminal investigation. The officers attempted to use less drastic means to determine his well-being before entering his apartment, and once inside the apartment, the scope of their search was limited to that reasonably designed to secure their articulated purpose. In reviewing their conduct, we need not decide "whether the police could have done something different," but only "whether their actions, when viewed as a whole, were objectively reasonable." Bogan, supra, 200 N.J. at 81. We are satisfied that their conduct met that standard. The search was, therefore, constitutionally valid as falling within the community caretaking exception to the warrant requirement.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION