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


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                          APPROVAL OF THE APPELLATE DIVISION
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             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.
    
    
                                          2                                 A-1401-15T1
    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].
    
                                          4                              A-1401-15T1
                    (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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