STATE OF NEW JERSEY VS. DEWAYNE T. EARL(14-12-3854, CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1401-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEWAYNE T. EARL, a/k/a
DWAYNE . EARL,
Defendant-Appellant.
___________________________
Submitted May 17, 2017 – Decided July 17, 2017
Before Judges Carroll and Farrington.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 14-12-3854.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Dwayne T. Earl appeals the denial of his motion to
suppress following an evidentiary hearing. We affirm.
On May 21, 2014, in response to two telephone calls from
citizens reporting drug distribution, Troopers Joseph Castle and
Cunningham1 responded to the corner of 8th and Walnut Streets in
Camden, New Jersey to conduct a surveillance.
At approximately 7:40 a.m. on that date, the troopers
conducted surveillance from an unmarked vehicle and observed two
African American men on the corner of 8th and Walnut conducting
four or five hand-to-hand transactions. Following the
transactions, one of the individuals, later identified as Darnel
Barnes, took money, walked up to a particular address, knocked on
the door and was met by defendant, who took the money and handed
the individual a black plastic bag. This occurred more than once
in the approximate thirty-minute duration of the surveillance.
Arrest teams were called in, and as they pulled in front of
the house, Earl saw them and ran into the house where State
troopers observed him throwing thirteen decks of heroin onto the
living room table. The police seized the heroin. Trooper Castle
entered the residence as it was being secured and applied for a
search warrant. After obtaining the warrant, he returned and
1
The officer's first name does not appear in the record.
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conducted a walk-through of the residence with another trooper and
recovered four firearms, including an assault firearm.
Defendant filed a motion to suppress at which he testified
on his own behalf. His testimony was essentially that he was in
his upstairs bedroom getting his daughter ready for school when
the police raided the home. He denied ever being outside the
house on the morning of the arrest. He denied exchanging drugs
for money at his residence. He acknowledged that he was served
with a search warrant while he was at police headquarters at
approximately 4:10 p.m. the same day.
Two witnesses testified on behalf of the defense. Davontane
Jenkins testified that he was on his porch, next door to the Walnut
Street address for approximately one-half hour before the police
arrived. He denied seeing Earl on his porch or in front of the
Walnut street address at any time up until the police arrived.
Jenkins' testimony was ambiguous regarding whether he actually
resided next door on the date of the arrest.
Shatera Smith also testified. She indicated she was the
girlfriend of Raymond Barker, another resident of the house, and
stayed in Barker's room the night before the arrest. On direct
examination, she testified Earl was in his bedroom at the time of
the arrest. On cross-examination, she admitted she had never left
3 A-1401-15T1
Barker's room prior to the police arriving and the door to the
room had been closed.
The court denied the motion to suppress, finding Trooper
Castle's testimony on behalf of the State credible. The court
found that Earl was outside his residence when the police arrived
and ran inside where he discarded bags of heroin onto a living
room table. The court found the search warrant was not based upon
information known to be false or with reckless disregard for the
truth.
Earl ultimately entered conditional guilty pleas to third-
degree possession of heroin with intent to distribute, N.J.S.A.
2C:35-5a)(1); and second-degree unlawful possession of an assault
firearm, N.J.S.A. 2C:39-5(f). The remaining counts of the
indictment were dismissed.
On appeal, Earl presents the following arguments for our
consideration:
POINT I
THE MOTION COURT COMMITTED REVERSIBLE ERROR
IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS
EVIDENCE.
A. The Officers' Warrantless Conduct
Violated [Defendant's] Constitutional
[sic] Right to Be Free of Unreasonable
Searches and Seizures.
(i) The Officers Lacked Probable Cause
to Arrest [Defendant].
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(ii) The Officers' Entry Into the Home
Did Not Fall Within the Purview of
the Hot-Pursuit Doctrine Because
the Exigency Was Police-Created.
B. The Factual Predicate Underlying the
Motion Court's Franks v. Delaware and
State v. Smith Analysis was Flawed.
Therefore, this Court Should Remand the
Matter for Reconsideration.
We consider the court's determination that the warrantless
search of defendant and seizure of heroin from his residence were
lawful. The Fourth Amendment of the United States Constitution
and Article 1, paragraph 7 of the New Jersey Constitution guarantee
the right "of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, § 7.
As the United States Supreme Court has acknowledged,
"physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed." United States v.
United States Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125,
2134, 32 L. Ed. 2d 752, 764 (1972). Accordingly, it is well
established that "searches and seizures inside a home without a
warrant are presumptively unreasonable," Payton v. New York, 445
U.S. 573, 586, 100 S. Ct. 1371 1380, 63 L. Ed. 2d 639, 651 (1980),
and hence "prohibited by the Fourth Amendment, absent probable
cause and exigent circumstances." Welsh v. Wisconsin, 466 U.S.
5 A-1401-15T1
740, 749, 104 S. Ct. 2091 2097, 80 L. Ed. 2d 732, 743 (1984).
State v. Hutchins, 116 N.J. 457 463 (1989). "Warrantless searches
and seizures presumptively violate those protections, but '[n]ot
all police-citizen encounters constitute searches or seizures for
purposes of the warrant requirement[.]'" State v. Rosario, ___
N.J. ___, ___ (2017) (slip op. at 17) (citing State v. Rodriquez,
172 N.J. 117, 125 (2002)).
In Rosario, our Supreme Court noted "[i]n escalating order
of intrusiveness upon a citizen's rights, three categories of
encounters" between police and the public "have been identified
by the courts: (1) field inquiry; (2) investigative detention; and
(3) arrest." Ibid. The State has the burden of proving the
existence of an exception by a preponderance of the evidence.
State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S.
1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).
Our review of a court's decision on a suppression motion is
limited. We are required to uphold the factual findings of the
trial court on a suppression motion if "those findings are
'supported by sufficient credible evidence in the record.'" State
v. Elders, 192 N.J. 224, 243 (2007). We must defer to the trial
court's findings, "which are substantially influenced by [the
court's] opportunity to hear and see the witnesses and to have the
6 A-1401-15T1
'feel' of the case, which a reviewing court cannot enjoy." Id.
at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
We first address defendant's argument that the police lacked
probable cause to arrest him. "An arrest -- the most significant
type of seizure by police -- requires probable cause and generally
is supported by an arrest warrant or by demonstration of grounds
that would have justified one. Rosario, supra, ___ N.J. at ___
(slip op. at 19). "Probable cause exists where 'the facts and
circumstances within . . . [the officers'] knowledge . . . [are]
sufficient in themselves to warrant a man of reasonable caution
in the belief that 'an offense has been or is being committed[.]'"
Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302,
1310-1311, 93 L. Ed. 1879, 1890 (1949) (citing Carroll v. United
States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555
(1925)(alteration in original)). This requires more than a "bare
suspicion," State v. Goodwin, 173 N.J. 583, 598 (2002) (quoting
State v. Burnett, 42 N.J. 377, 387 (1964), and more than an
"inarticulate hunch[]", Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct.
1868, 1880, 20 L. Ed. 2d 889, 906 (1968), but less than the quantum
of evidence necessary to convict. The probable cause standard is
also more demanding than the "reasonable suspicion" standard
applicable to investigative detentions under Terry, supra, 392
U.S. at 37, S. Ct. at 1888, 20 L. Ed. 2d at 915.
7 A-1401-15T1
"[A]n anonymous tip, standing alone, inherently lacks the
reliability necessary to support a reasonable suspicion because
the informant's 'veracity . . . is by hypothesis largely unknown
and unknowable.'" Rosario, supra, __ N.J. at __ (slip op. at 24)
(quoting State v. Rodriguez, 172 N.J. 117, 127-28 (2002)).
Observations of police officers are generally regarded as
highly reliable and sufficient to establish probable cause for
warrantless searches, seizures and arrests. Our Supreme Court in
State v. Moore, 181 N.J. 40, 47 (2004) and State v. O'Neal, 190
N.J. 601, 613 (2007) has upheld arrests, searches and seizures
based upon observations of transactions akin to the facts here.
Even where an officer does not see the nature of the items being
exchanged, the observations can still support a finding of probable
cause to arrest when the training and experience of the officer
is properly credited. State v. Anaya, 238 N.J. Super. 31, 36
(App. Div. 1990), rev'd on other grounds.
In determining whether there is probable cause to arrest,
courts use a totality of the circumstances test. The "test
requires the court to make a practical, common sense determination
whether, given all of the circumstances, 'there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.'" Moore, supra, 181 N.J. at 46 (quoting
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76
8 A-1401-15T1
L. Ed. 2d 527, 548 (1983)). The factors the court should consider
when applying this test are a police officer's common and
specialized experience and evidence concerning the high-crime
reputation of an area. "[A]lthough factors considered in isolation
may not be enough, cumulatively those pieces of information may
'become sufficient to demonstrate probable cause.'" State v.
Daniels, 393 N.J. Super. 476, 486 (2007) (quoting State v. Zutic,
155 N.J. 103, 113 (1998)).
Trooper Castle testified to his substantial experience in
narcotics investigations. He noted his participation in over
fifty investigations involving narcotics trafficking,
participation in the execution of search warrants where illegal
narcotics have been seized, and work in an undercover capacity in
numerous controlled dangerous substance (CDS) investigations. In
addition, he testified he had extensive experience interviewing
confidential informants and conducting covert surveillance of
subjects openly engaged in the sale of CDS, resulting in their
arrest, prosecution, and conviction. He also indicated he had
extensive experience with the sale and distribution of CDS, and
the techniques and methods used to sell and distribute those
substances. He further testified he had been a witness in various
criminal prosecutions within the State of New Jersey resulting in
convictions of defendants for violations of the New Jersey criminal
9 A-1401-15T1
statutes. At the time of the arrest in question, he had been
assigned to the Metro South Station in the City of Camden for four
months and previously detached to Metro South during a previous
assignment on the Tactical Patrol Unit during which time he had
become familiar with many of the illegal drug sets within the City
limits. He testified he was also familiar with the methods and
jargon used by subjects engaged in the sale and distribution of
illegal CDS, as well as the equipment, tools, and packaging
materials used to distribute CDS.
In light of the record, we find that the motion judge
correctly concluded there was probable cause to arrest. We come
to that conclusion based upon the totality of the circumstances,
including the anonymous tip, corroborated by the observations of
a State police officer with extensive experience in narcotics and
a knowledge of and familiarity with the vicinity in which the
transactions were taking place.
We next address defendant's argument that there were no
exigent circumstances which permitted the warrantless entry into
his home. As noted by the State in its brief, "While defendant
argued below no nexus existed because he was never outside, on
appeal defendant has submitted: "Absent a closer nexus linking
[defendant] to any illegal conduct, the officers lacked probable
cause to arrest [defendant]." We find defendant's reliance upon
10 A-1401-15T1
State v. Marsh, 162 N.J. Super. 290, 297 (Law Div. 1978), aff'd
sub nom. and State v. Williams, 168 N.J. Super. 352, 358 (App.
Div. 1979) misplaced.
In Marsh, a desk sergeant learned at 10:00 a.m. that a van
containing stolen goods would be leaving a parking lot at 3:00
p.m. The police did not apply for a search warrant, and the van
was seized when it left the parking lot at 4:30 p.m. The
suppression motion was granted, the court noting,
where police have probable cause, have no
reason to believe or do not believe that a
judge will disagree, have ample time to obtain
a warrant before a known deadline of a
specifically anticipated exigent circumstance
will render the evidence unavailable, and they
fail to apply for a warrant, their search
based upon that probable cause, despite
exigent circumstances, transgresses the
Fourth Amendment as an unlawful usurpation of
the judicial function to certify the probable
cause and authorize the search by the issuance
of a warrant.
[Id. at 298.]
In Marsh, any exigency was created by the police who failed
to obtain a warrant upon receipt of the information. Here,
defendant caused the exigency by fleeing the police and discarding
the heroin.
The question of whether exigent circumstances exist is to be
determined, as it has always been, on a case-by-case basis with
the focus on police safety and preservation of evidence. State
11 A-1401-15T1
v. Pena-Flores, 198 N.J. 6, 11 (2009). When a defendant retreats
or causes some elements of a chase, and thereby causes a "hot
pursuit" by the police, our Supreme Court has stated the situations
may create a "realistic expectation that any delay would result
in destruction of evidence", thus justifying a warrantless entry.
State v. Bolte, 115 N.J. 579, 89 (1989) (citing United States v.
Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 2410, 49 L. Ed. 2d 300,
305 (1976)). Defendant appears to argue the exigent circumstances
were created by the police. Our Supreme Court has stated:
We acknowledge . . . the potential for abuse
inherent in the exigent-circumstance
exception to the warrant requirement and . .
. the concern that "the police not be placed
in a situation where they can create the
exception, because well-meaning police
officers may exploit such opportunities
without sufficient regard for the privacy
interests of the individuals involved."
[State v. Hutchins, 116 N.J. 457, 76 (1989)
(quotation omitted).]
Whether the exigent circumstance "arose 'as a result of
reasonable police investigative conduct intended to generate
evidence of criminal activity' must also be taken into account."
State v. De La Paz, 337 N.J. Super. 181, 196 (App. Div. 2001)
(quoting State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div.
1990), certif. denied, 168 N.J. 295 (2001)). Police-created
exigent circumstances which arise from unreasonable investigative
12 A-1401-15T1
conduct cannot justify warrantless home entries." Ibid. (citing
Hutchins, supra, 116 N.J. at 460). Determining whether exigent
circumstances are police-created is a fact-finding issue that
should be resolved by the judge who hears the testimony and has
the opportunity to observe and evaluate the witnesses. Hutchins,
supra, 116 N.J. at 476.
The pertinent factors include:
the degree of urgency and the amount of time
necessary to obtain a warrant; the reasonable
belief that the evidence was about to be lost,
destroyed, or removed from the scene; the
severity or seriousness of the offense
involved; the possibility that a suspect was
armed or dangerous; and the strength or
weakness of the underlying probable cause
determination.
[State v. Walker, 213 N.J. 281, 292 (2013)
(quoting State v. Deluca, 168 N.J. 626, 632-
33 (2001).]
"[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." State v. Cooke, 163 N.J. 657, 676 (2000).
The State argues this case does not involve the kind of
deliberate conduct that courts have found to constitute police
creation of exigent circumstances. We agree. Having determined
there was sufficient evidence upon which to find probable cause
to arrest, we find the court did not err in finding the police
13 A-1401-15T1
properly pursued Earl when he retreated into his living room and
thereafter observed the discarded heroin in plain view. The Fourth
Amendment is not violated when police justifiably pursue a fleeing
criminal into his [home] after the criminal has committed a serious
crime in their presence. State v. Josey, 290 N.J. Super. 17, 31
(App. Div. 1996) (citing State v Jones, 143 N.J. 4, 14 (1995)).
Defendant argues finally that the issuance of the search
warrant rested on Trooper Castle's materially false version of
events and, therefore, a hearing was required pursuant to Franks
v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed.
2d 667, 682 (1978) and State v. Smith, 212 N.J. 365, 420-21 (2012),
cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558
(2013). When a "defendant makes a substantial preliminary showing"
that the issuance of a search warrant was based upon materially
false statements or omissions, a trial court is required to conduct
a hearing at the defendant's request. Franks, supra, 438 U.S. at
155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.
Pursuant to Franks, a defendant must meet two criteria to be
entitled to a hearing: 1) the defendant must make a substantial
showing that a false statement was knowingly and intentionally or
with reckless disregard for the truth, included by the officer in
the warrant affidavit; and 2) the allegedly false statements are
necessary to a finding of probable cause. Ibid. Defendant bases
14 A-1401-15T1
his argument on the testimony of his neighbor, Jenkins, who the
court found not to be credible. As argued by the State, the record
shows Trooper Castle's testimony and his affidavit, which was the
basis for the warrant, was tested against the testimony of the
defense witnesses. Based on that testimony the court found, as
it would have in a Franks hearing, that defendant failed to make
a substantial showing the search warrant was based upon statements
known to be false, or made with reckless disregard for the truth.
Affirmed.
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