Opinion
DOCKET NO. A-5516-11T1
08-06-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JULIO VILARO a/k/a JULIO M. VILARO, JULIO MUNOZ and JUNIO VILARO, Defendant-Appellant.
Jonathan A. Kessous argued the cause for appellant (Garces & Grabler, P.C., attorneys; Pasquale O. Vella and Mr. Kessous, on the brief). Kimberly Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Ms. Donnelly, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-10-1006. Jonathan A. Kessous argued the cause for appellant (Garces & Grabler, P.C., attorneys; Pasquale O. Vella and Mr. Kessous, on the brief). Kimberly Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Ms. Donnelly, on the brief). PER CURIAM
Defendant Julio Vilaro pled guilty to first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1), b(1). That guilty plea was conditioned on reservation of his right to appeal orders denying his pre-plea motions to suppress, see R. 3:5-7(d) and R. 3:9-3(f), and it was entered pursuant to an agreement with the State. The plea agreement called for the State to seek dismissal of the remaining counts of the indictment and recommend a fifteen-year term of imprisonment subject to sixty-nine months' parole ineligibility and mandatory fees, fines and assessments. The court sentenced defendant in conformity with that agreement and dismissed the remaining charges.
Those counts charged: third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1); third-degree possession of a CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7; second-degree possession of a weapon during a CDS offense, N.J.S.A. 2C:39-4.1c; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and second-degree money laundering, N.J.S.A. 2C:21-25a.
On this appeal defendant challenges the court rulings on his suppression motions and contends that his sentence is excessive. There was a series of searches in this case. The trial court upheld the first search, which was a search of defendant's bedroom, on the ground that the officers were acting within the parameters of the emergency-aid and plain-view exceptions to the warrant requirement. Concluding that the trial court misapplied the law, we reverse that determination and remand for the trial court to consider whether the initial illegal search tainted defendant's arrest, his post-arrest consent to a further search of his apartment, his post-arrest admissions and waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), or the warrant obtained after his arrest with information acquired from the searches and defendant's statements. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963); State v. Shaw, 213 N.J. 398, 412-13 (2012).
The evidence presented during the combined hearing on the motions can be summarized as follows. The contraband supporting the charges and conviction was found in an apartment on the eleventh floor of an apartment building in Elizabeth that defendant shared with his wife and stepson and in defendant's safe deposit box. The police came to his home in response to a report of a burglary in progress, which was transmitted to police officers at about 9:54 a.m. on Sunday, May 16, 2010.
Although defendant is not married to the woman whom he has lived with for many years, he referred to her as his wife and to her son as his stepson. They were not charged in the indictment, and because the identity of the members of defendant's household and the legal status of their relationship is immaterial, we also refer to them as his wife and stepson.
Earlier that morning, defendant had driven his wife to work, stopped for pastries and gone home. As he was unlocking the door to his apartment defendant was hit in the head. There were two assailants, and when defendant pushed the door open the struggle continued inside. One of the assailants had a taser, which he used. The other pointed a gun at defendant's head, demanded money and fired. Although the firing of the gun made a noise, defendant was not shot. The men fled with money taken from defendant's wallet.
Defendant's stepson was in his bedroom when defendant returned. On hearing defendant opening the apartment door and the commotion that followed, the stepson looked into the hallway and saw the ongoing attack. He responded by calling 911.
Officer Matos was patrolling nearby and reached the building in less than a minute. En route, Matos heard a second broadcast advising that the perpetrators were still in the building and shooting. When Matos arrived, residents on the apartment balconies yelled to him and motioned for his attention.
As Matos was approaching the building, a second officer, Pericas, arrived. They took the elevator to the eleventh floor together. From the radio communications between officers who arrived after him, Matos understood that there were officers searching the building for perpetrators who were still believed to be inside. Consequently, when Matos and Pericas reached the eleventh floor, they left the elevator with their guns drawn while scanning the area. Matos saw a young man, defendant's stepson, frantically waiving them toward and then into defendant's apartment. After entering the apartment's foyer, Matos went in one direction and Pericas in another. Matos scanned the kitchen, dining area and living room to make sure the officers were safe. He assumed that Pericas had gone to scan the bedrooms on the other side of the apartment's door. As Matos explained, "Basically[,] I'll take his word that no one's there and he takes my word that no one's here."
Matos found defendant sitting at a table in the kitchen area of his apartment. He was bleeding from the head, and there were what appeared to be taser prongs sticking out of his arm. Defendant told Matos he had been ambushed as he was unlocking the door to his apartment and was then pushed inside and robbed. Defendant told Matos that when he started fighting back, one of the assailants used a taser on him. One of the men had a small handgun, which he used to hit defendant in the head and fired. Defendant had not been shot, however, and he told Matos that he believed the intruder's handgun was actually a starter pistol.
Defendant gave Matos descriptions of his assailants and told him that the men had fled from his apartment. According to defendant's testimony, he told Matos that they fled through the emergency exit in the hallway after his money was taken.
Matos conveyed the descriptions of the assailants and their "possible direction of flight" to Officer McDonough and other officers who arrived at the apartment. He did not recall telling the others about defendant's impression that the assailant's handgun was a starter pistol and explained why. For their own safety and the safety of others, police treat a report of a handgun as if it is a gun until they know it is not.
Matos did not search the apartment for evidence, such as bullet holes, because in his role the "main priority is the safety of the victim and to take care of the victim." He was not there as a detective searching or looking for "forensic evidence," which is something "for somebody else" to do.
Twenty or thirty minutes after arriving at defendant's apartment, Matos escorted defendant outside to an ambulance and then followed it to a nearby hospital. Sergeant Geddes, who later discovered in defendant's bedroom the large quantity of cocaine supporting defendant's arrest and conviction for first-degree possession of a CDS with intent to distribute, arrived at the apartment as Matos was taking defendant to the ambulance, but they did not have any conversation.
Matos stayed with defendant while his head injury was treated and the taser prongs were removed at a nearby hospital, and he collected defendant's bloody shirt. The hospital records indicate that defendant was discharged at 12:11 p.m.
Prior to defendant's release from the emergency room, Matos received a call from a superior officer, Lieutenant King, who directed him to return defendant to the apartment and advised that he was sending another officer to assist him. Although King did not tell Matos to place defendant under arrest, Matos understood that defendant was a suspect and not free to go where he wished. Defendant heard Matos' side of that phone conversation, and because defendant heard Matos say suspect, he asked him if the police had suspects for the crimes committed against him. By his account, Matos said no and did not explain.
Around the time Matos spoke to King, defendant's wife and the officer assigned to assist him arrived at the hospital. According to Matos, she and defendant spoke at the hospital and he took both of them back to the apartment in his patrol car. He did not handcuff either of them and did not tell either of them they could not leave. On reaching the apartment building, Matos escorted defendant and his wife to the lobby and, after leaving them with King in the building's lobby, turned his back and left to write his report at headquarters.
Defendant and his wife testified that they did not speak to one another at the hospital and were taken from the hospital to their home in handcuffs and separate patrol cars. According to defendant, Sergeant Geddes spoke to him outside the building when he was returned and warned him that he and his wife would face consequences if he did not cooperate.
Sergeant Geddes testified about his discovery of the cocaine that led him to ask his supervisor, Lieutenant King, to call Matos and have him place defendant under arrest and bring him back to the apartment. He made that request after seeing a large amount of cocaine in the bedroom defendant shared with his wife.
Geddes was the field supervisor on this investigation and arrived at defendant's apartment as Matos was leaving for the hospital. Before going to defendant's apartment, Geddes organized groups of officers to search for the assailants in the hallways and stairways and directed others to set up a perimeter outside the building to catch them if they left. After doing that and assisting in the search, Geddes went to defendant's apartment. Even though Geddes did not talk to Matos, he had heard that the intruders fled from the apartment and that "nobody knew exactly where they went." In Geddes' words, "We knew they obviously got out of the apartment but where in the building we had no idea." He further testified that "within those couple of minutes on Matos arriving and making his way to the victim of the incident," that "the suspects were no longer in the apartment. As far as anybody knew they were out somewhere in the building."
Knowing that defendant was safe with Matos, Geddes locked his shotgun in the trunk of his car, removed his vest and went back to the apartment. There, Geddes saw blood, taser wires, a taser charger and scuff marks on the wall "right inside the door." Having seen defendant injured and dazed as Matos walked him out, Geddes thought that the first thing to be done was "to call I.D." and "get pictures" of the scene. He asked McDonough, who had stayed in the apartment when Matos left, if anyone had found shell casings, holes in the wall from projectiles, powder or anything like that. McDonough told Geddes that they "haven't even looked yet."
At that point, Geddes did not ask McDonough if anyone had cleared the apartment, because he had heard the suspects fled. Thus, he began looking for evidence of gunfire, hoping to find something that could be used to link a gun to the crime, if they "ever recover[ed] a weapon."
Noticing that a door to a bedroom was wide open and knowing that a shell casing can go a long way and travel in any direction depending on where the gun is pointed when fired, Geddes stepped into the doorway of that bedroom and leaned in. While scanning the floor, Geddes noticed a "machete" — the hilt of a large kitchen knife — sticking out from between the bed's mattress and box springs.
Geddes concluded that whether the knife was under the mattress for defensive purposes or not, it was a weapon, and he asked McDonough if anyone had cleared the apartment. By "cleared," Geddes meant seeing that the room was free of suspects or dangers to the officers. McDonough told Geddes he was not sure. "Two things went through [Geddes'] mind at that point[,] 1) that it was definitely fashioned as a weapon, and 2) did somebody just jam it there trying to hide it because the cops were coming up the stairs."
Given McDonough's uncertainty about the clearing and his own discovery of the knife, Geddes decided to clear that room. While looking on the far side of the bed to make sure no one was hiding there, Geddes saw a plate on the top of a pile of clothes on a chair. That plate held what Geddes recognized to be a large amount of cocaine. Although the chunks of cocaine were double bagged in clear plastic, Geddes, who had training and experience in narcotics, detected a strong odor of cocaine.
Following his discovery of the cocaine, Geddes informed Lieutenant King and asked that Matos be told to place defendant under arrest and bring him back to the apartment. Notice of Geddes' discovery was also given to the police department's narcotics division and detectives from that division were sent to the scene.
When defendant and his wife were returned to the apartment, Geddes told defendant he had found a large amount of cocaine and that he was under arrest for possession of the drugs. Defendant immediately claimed responsibility and advised that his wife and stepson knew nothing about the drugs. As defendant began to speak, Geddes attempted to interrupt by talking over him as loudly as he could and directing him to be quiet. When defendant complied, Geddes and one of the narcotics detectives delivered the advisements required by Miranda. After they had advised defendant, defendant signed a Miranda form and waiver of his rights. It was 12:36 p.m. when defendant signed the waiver of his rights.
Immediately thereafter, defendant was asked to sign another form consenting to and authorizing the officers to search his apartment and his car. According to Geddes, defendant was adamant in insisting that he would consent to the search only if the police would agree not to arrest his wife. Although the officers told him that they "could not guarantee that," defendant signed anyway.
Defendant's car and apartment were searched after defendant, who was under arrest, and his wife and stepson, who were not, were taken to police headquarters. Nothing was recovered during the search of the car, but in the apartment the police found $7628 in cash in the pocket of a jacket in defendant's closet, $1900 in cash in a small safe in the bedroom, smaller packages of suspected cocaine bound with rubber bands, a measuring spoon and a key to a safe deposit box defendant had in a bank.
Following the search, narcotics detectives took statements from defendant's stepson and wife and then from defendant at headquarters. Detective Smith, who had participated in the consent search and the interviews of defendant's family, testified that he did not talk to defendant about the case before interrogating him in an interview that was recorded. Defendant, however, testified that before the recording started, Detective Smith promised him that his wife would not be prosecuted if he cooperated and did not mention the promise while their conversation was being recorded.
At the outset of the interview, defendant was again given the advice required by Miranda, and he signed a waiver at 5:32 p.m. According to defendant's attorney, during his recorded statement defendant explained that the cash in his safe deposit box was money that he had acquired lawfully and saved for retirement throughout his life.
The record provided on appeal does not include a transcript or the DVD record of the interview. The factual claim is made in his brief and is not accompanied by any citation to the record.
The next day, Detective Smith obtained a warrant authorizing a search of defendant's safe deposit box and a seizure of its contents. The safe deposit box held $91,000 in cash. There is no dispute that the affidavit submitted in support of the warrant does not include defendant's representation about the source of the funds in the safe deposit box. With respect to the source of the funds, Detective Smith wrote that defendant "admitted that the money that was hidden in his apartment and the money in his safe deposit box are [sic] his and that at least some of it is the proceeds of cocaine sales." Detective Smith also indicated that defendant had a prior conviction for conspiracy to sell cocaine for which he was sentenced to a three-year term of imprisonment in New York in 1982. He concluded by stating that based on that information and his training and experience, he "believed that in that safe deposit box, there will be found, the cash proceeds of cocaine sales."
Following his indictment, defendant moved to suppress: the package holding a first-degree quantity of cocaine; statements defendant made following his arrest for possessing those drugs; additional CDS found during the consent search; and money and jewelry seized from the safe deposit box. As previously noted, the trial court found that the police were acting lawfully and within the parameters of the emergency-aid and plain-view exceptions to the warrant requirement when Sergeant Geddes spotted the bag of a CDS on the chair in defendant's bedroom that was the basis for defendant's arrest.
Having found no illegality in the initial observation, the court had no reason to consider whether the evidence acquired thereafter was tainted. Accordingly, the trial court went on to consider the alternate grounds defendant asserted for suppression of the other physical evidence and the statements he made after his arrest. The trial court rejected all of defendant's claims.
With respect to the physical evidence found in defendant's apartment, the court found that the police validly obtained and defendant voluntarily gave his consent to that search. The court denied defendant's challenge to the search warrant, because it concluded that defendant failed to make the preliminary showing required for a hearing on his claim of material misrepresentations made in the affidavit. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); State v. Howery, 80 N.J. 563, 567, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).
The court also found no basis for suppressing the statements defendant made at the time of his arrest and during his subsequent custodial interrogation. The court determined that defendant's initial admission of exclusive possession of the cocaine was volunteered before the officers had an opportunity to comply with Miranda, that defendant's interrogation at headquarters was preceded by the advisements required by Miranda and that defendant knowingly and voluntarily spoke to the police during that interview.
On appeal, defendant presents these arguments in his opening brief:
I. STANDARD OF REVIEW.In his reply brief defendant argues:
II. UNION COUNTY SUPERIOR COURT COMPLETELY IGNORED THE DEFENDANT'S MAIN CONTENTION THAT THE EXCLUSIONARY RULE MUST APPLY WITHIN FACTUAL SITUATIONS WHEREIN LAW ENFORCEMENT INTENTIONALLY AND ENTIRELY WITHHELD MATERIAL INFORMATION FROM OTHER INVESTIGATING OFFICERS THAT WOULD HAVE OBVIATED THE NECESSITY FOR AN OTHERWISE ILLEGAL WARRANTLESS SEARCH OF THE DEFENDANT'S BEDROOM.
III. UNION COUNTY SUPERIOR COURT ERRED IN DENYING
DEFENSE APPLICATION FOR SUPPRESSION OF PHYSICAL EVIDENCE SEIZED IN THE DEFENDANT'S BEDROOM AS THE INVESTIGATING POLICE OFFICER HAD NO JUSTIFICATION NOR LEGITIMATE EXCEPTION TO THE WARRANT REQUIREMENT TO ENTER THE BEDROOM.
A. Julio Vilaro Was Subjected To A "Seizure" By The Police Encounter.
B. Protective Sweep Exception To The Warrant Requirement Does Not Apply.
C. The Plain View Doctrine Does Not Apply.
[D]. Julio Vilaro Did Not Consent To The Search And Seizure That Ensued And Did Not Abandon Any Property.
IV. DEFENDANT'S FIFTH (5TH) AMENDMENT RIGHT TO REMAIN SILENT WAS VIOLATED.
V. DEFENDANT'S STATEMENTS TO POLICE [ARE] INADMISSIBLE SINCE THE STATEMENTS WERE NOT VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY RENDERED.
VI. UNION COUNTY SUPERIOR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A FRANKS HEARING.
VII. THE . . . SENTENCE WAS EXCESSIVE CONSIDERING THE AGE AND CURRENT HEALTH OF DEFENDANT-PETITIONER.
I. EMERGENCY AID DOCTRINE IS NOT APPLICABLE TO PRESENT CIRCUMSTANCES AS AN EXCEPTION TO A WARRANTLESS SEARCH.
II. THE PLAIN VIEW DOCTRINE DOES NOT APPLY BECAUSE SERGEANT GEDDIS WAS NOT LEGALLY IN A POSITION TO VIEW THE COCAINE.
In defendant's brief this subpoint is mislabeled.
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The standards governing appellate review of rulings on motions to suppress are clear. This court is obligated to "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)) (internal quotation marks omitted); State v. Johnson, 42 N.J. 146, 162 (1964). "A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference. Therefore, a trial court's legal conclusions are reviewed de novo." State v. Gamble, ___ N.J. ___, ___ (2014) (slip op. at 11) (internal citations omitted).
With the benefit of guidance the Supreme Court provided after the trial court rendered its decision, we conclude that the court erred in determining that the officer's entry into defendant's bedroom to search for evidence of the crimes committed by the assailants was justified under the emergency-aid and plain-view exceptions to the warrant requirement. Our disagreement is not with the trial court's findings of fact but with its failure to consider whether "the exigency" justifying "immediate action" had dissipated when the officer entered defendant's bedroom and saw the cocaine. State v. Edmonds, 211 N.J. 117, 134 (2012); see State v. Vargas, 213 N.J. 301, 321 (2013) (expressly disapproving language found in State v. Kaltner, 420 N.J. Super. 524, 541 (App. Div. 2011), aff'd o.b., 210 N.J. 114 (2012), that suggests "the community-caretaking doctrine permits the warrantless entry into or search of a home in the absence of some form of exigent circumstances" (emphasis added)).
"Deterring unreasonable governmental intrusion into a person's home is one of the chief goals of the Fourth Amendment and Article I, Paragraph 7" of the New Jersey Constitution. State v. Bogan, 200 N.J. 61, 72 (2009); accord Edmonds, supra, 211 N.J. at 129. "The State bears the burden of proving by a preponderance of the evidence the validity of a warrantless search," and to meet that burden, the State must establish one of the recognized and "'well delineated exceptions'" to the warrant requirement. Edmonds, supra, 211 N.J. at 128-29, 130 (quoting State v. Frankel, 179 N.J. 586, 598 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298-99 (1978)), cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)).
Under the emergency-aid doctrine, "[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir.), cert. denied, 375 U.S. 860, 84 S. Ct. 125, 11 L. Ed. 2d 86 (1963). This explanation of the rationale for the emergency-aid exception has repeatedly been quoted and followed by the United States and the New Jersey Supreme Courts. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 1947, 164 L. Ed. 2d 650, 657-58 (2006) (quoting Mincey, supra, 437 U.S. at 392-93, 98 S. Ct. at 2413, 57 L. Ed. 2d at 300 (quoting the passage)); Edmonds, supra, 211 N.J. at 130 (quoting Frankel, supra, 179 N.J. at 600 (quoting Wayne)).
In State v. Edmonds, the New Jersey Supreme Court, following the United States Supreme Court's decision in Brigham City v. Stuart, held that "the subjective motivation of a police officer is irrelevant in determining whether a search or seizure is unreasonable under the Fourth Amendment" or under Article I, Paragraph 7 of the State Constitution. 211 N.J. at 131-33 (recognizing the inconsistency between Frankel, which required consideration of the officer's subjective motivation, and Brigham City, which precludes it).
The Court further held that to have a search upheld under "the emergency-aid doctrine, the State must prove only that (1) the officer had 'an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or to prevent serious injury' and (2) there was a 'reasonable nexus between the emergency and the area or places to be searched.'" Id. at 132 (quoting Frankel, supra, 179 N.J. at 600). In summarizing, the Court explained that "if police officers 'possess an objectively reasonable basis to believe' that prompt action is needed to meet an imminent danger, then neither the Fourth Amendment nor Article I, Paragraph 7 demand that the officers 'delay potential lifesaving measures while critical and precious time is expended obtaining a warrant.'" Id. at 133 (quoting Frankel, supra, 179 N.J. at 599).
The Court also stressed the limitations on the emergency-aid exception. "[I]t is not a general grant of authority to conduct warrantless searches," and the search "must be 'limited to the reasons and objectives that prompted' the need for immediate action." Id. at 133-34. Importantly, the Court explained, "When the exigency that justifies immediate action dissipates, the rationale for searching without a warrant is no longer present." Id. at 134; see also United States v. Doe, 61 F.3d 107, 111 (1st Cir. 1995) (discussing the need for a warrant after the "exigency ends"); accord Higdon v. Wells Cnty. Sheriff's Office, 426 F. Supp. 2d 854, 862-63 (N.D. Ind. 2006) (same).
In Edmonds, the police had responded to a caller who reported that his sister was being beaten by her boyfriend. 211 N.J. at 122-23. The police spoke to the woman and her son, entered the home, frisked the boyfriend and found nothing confirming the information or suggesting danger. Id. at 123-24. Nevertheless, they searched the room where the boyfriend was watching television when they arrived and eventually found a handgun. Id. at 124. Finding the officers' immediate response to the call was proper and assuming that the officers' entry of the home and their detention and frisk of the boyfriend were not improper, the Court concluded that because "there was no longer an objective basis to believe that an emergency was at hand," extension of the emergency-aid doctrine to authorize the search of the television room and its furniture "would eviscerate the special status of the home as a protected sanctuary in our constitutional framework." Id. at 140.
There is no rational basis for reaching a different conclusion in this case. Without question, the officers properly responded to a report of a residential burglary and the robbery and assault of defendant that followed. The entry of the building and the apartment, the initial protective sweep, the initial interview of the victims present and the transport of the injured victim to the hospital for medical treatment all fall well within the emergency-aid exception. In short, the officers had an objective and reasonable basis to believe that there was an emergency that required the actions they took to preserve life and prevent further injury. See id. at 132. Neither the Fourth Amendment nor Article I, Paragraph 7, required delay of those responses to obtain a warrant. Id. at 133-34.
Things had changed by the time that the officer leading the investigation undertook a search for evidence of the reported sounds of gunfire. The defendant had advised that his assailants had fled after assaulting and robbing him, and he had been taken to the hospital for treatment. The trial court was correct in noting that the officers were not required to accept defendant's account, Frankel, supra, 179 N.J. at 608-09, but as Edmonds demonstrates that does not mean that they were free to search the home until they proved defendant wrong.
To survive the suppression of evidence seen after defendant was removed from the scene, the State had to establish that the officers had a reasonable basis for concluding that the emergency situation continued. There simply were no articulable facts suggesting that one or both of the intruders remained in the apartment or that either of them had left his weapon behind.
The lead officer had left defendant's apartment to store his shotgun and protective vest in his car. As the officer explained, he returned to the apartment to search for evidence of gunfire. This is not a case where the cocaine was in the line of sight of the first responders as they addressed the emergency and the contraband was later retrieved by investigators trained to gather evidence. See State v. O'Donnell, 408 N.J. Super. 177, 187 (App. Div. 2009), aff'd o.b. 203 N.J. 160 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010).
To the extent that the officers had probable cause to believe additional evidence of the crimes against defendant might be found in his bedroom, they were required to get a warrant to search for it because there was no exigency. There were numerous officers on the scene to protect defendant's stepson and secure the crime scene while other officers obtained a warrant. On the evidence in this record, the only conclusion available is that the State failed to present evidence overcoming the presumption of unreasonableness the law assigns to a warrantless search of a home. Edmonds, supra, 211 N.J. at 140-41. Moreover, because the officer who observed the cocaine on the bedroom chair was not lawfully within the viewing area at the time, the plain-view exception did not apply. State v. Earls, 214 N.J. 564. 592 (2013).
For the foregoing reasons, the order of the trial court is reversed and the matter is remanded for entry of an order suppressing the cocaine that was found on the chair in defendant's bedroom. As noted at the outset of this opinion, the suppression of that evidence requires us to remand so that the court may consider whether the illegality of the search and seizure of that cocaine taints defendant's arrest, the consent to search he gave after his arrest or the statements he made after he was arrested, and if that taint had dissipated. See Wong Sun, supra, 371 U.S. at 485, 83 S. Ct. at 416, 9 L. Ed. 2d at 454; Shaw, supra, 213 N.J. at 412-13.
Reversed and remanded for further proceedings in conformity with this opinion and the decisional law addressing taint.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION