Opinion
DOCKET NO. A-3946-14T2
01-13-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEFFREY LAWTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Alvarez and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-08-2316 and 14-02-0253. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jeffrey Lawton entered a guilty plea to third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), as charged in the single-count of Indictment No. 13-08-2316, and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7, count six of the multi-count Indictment No. 14-02-0253, charging him with drug and weapons offenses, after his motion to suppress evidence was denied. He was sentenced on September 12, 2014, in accordance with the plea agreement, to three years' imprisonment on the drug possession charge to be served concurrently to a seven-year term of imprisonment, five years of which were parole ineligible time, on the weapons offense. He appeals the denial of his motion and we affirm.
The single-count indictment was pending against defendant when the incident occurred that resulted in the multi-count indictment.
The remaining counts of the indictment at issue are as follows: third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); fourth-degree prohibited weapons and devices, dum-dum bullets, N.J.S.A. 2C:39-3(f) (count two); fourth-degree prohibited weapons and devices—large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count four); second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count five). --------
The State's witness at the hearing was Officer Chris LoDico. He testified that in June or July 2013 he had "heard" that two men were selling drugs from a motel room at the Fox Manor Hotel in Atlantic City, and that there were weapons in the room as well as contraband. When LoDico followed up on the tip, he met with the manager, was told that "there was a lot of foot traffic to that room," and was shown the registry card. No one answered when LoDico knocked at the door. He returned the following day, but the men were gone.
On September 20, 2013, LoDico received similar information regarding the Burgundy Motel, only this time the informant gave him a room number, 214. He and his partner, Patrolman Nick Berardis, spoke with the manager, who reported excessive foot traffic to the room and that "he was ready to kick those people out." Defendant's name on the card "automatically rang a bell." LoDico recognized it from the registry card at the Fox Manor Hotel.
LoDico said the Burgundy Motel was in a "[v]ery high drug traffic area" in which he had made multiple drug arrests. Because of a lack of security, it was routine for dealers to come in from out of town, sell drugs from the location, and then move on.
Accompanied by the manager, the officers went to Room 214. The manager knocked on the door, and after thirty seconds to a minute, LoDico could hear the sound of an object or a piece of furniture blocking the door being moved. Defendant opened the motel room door dressed in boxers and a night shirt; his eyes widened in surprise. While standing in the doorway, the officer asked defendant for his name, and as they spoke, LoDico saw drug paraphernalia, including "wax folds[,]" scattered on the floor of the room behind defendant.
LoDico also smelled a strong odor of burnt rock cocaine. He recognized the "very distinct" odor from prior encounters. Defendant's hands were shaking, and he seemed very nervous.
Defendant said his identification was in his pants, which were on the floor. Because the bulk of the motel room could not be seen from the doorway, when defendant turned back into the room to retrieve his wallet, the officers, concerned about weapons, followed right behind him. LoDico had been trained that standing in a doorway created a "futile funnel[,]" a term he explained meant his location would make him a highly visible target.
After defendant picked up his pants and sat on the bed, Berardis told LoDico that he saw rock cocaine and a glass pipe on an end table. Defendant was arrested and cuffed. As Berardis was helping defendant get dressed, LoDico noticed the handle of a pistol jutting out from the liner underneath an ottoman. As LoDico was removing the gun, he heard "a clunk inside the ottoman," and retrieved a second weapon. The State moved into evidence photographs of the motel room depicting the interior.
Defendant testified and denied being the registered occupant of Room 214, claiming he was the registered occupant of Room 216. Defendant also claimed he had gone to Room 214 only to buy drugs. Room 214 was occupied by two men known to defendant only by their nicknames, "T" and "Brick," from whom he had previously bought drugs. He acknowledged having been a crack cocaine addict for approximately twenty years.
When defendant arrived at Room 214 to buy drugs, T told him he had none on hand, but would go downstairs to meet somebody and, presumably, get more product. T told him to wait for him in the room. Defendant said the chambermaid was vacuuming and had just made up the beds. T asked him to get him when the chambermaid finished.
The chambermaid left shortly after T, and defendant fell asleep. He was fully dressed, including wearing a hat, which he pointed out on the floor in one of the photographs, which fell off when he was arrested. Defendant awoke when the door opened and he saw "the manager standing there and two officers [] coming toward me, both of them pointing weapons." They told him to get down, and immediately cuffed him.
Additionally, defendant testified that when the police arrived there were no drugs on the night table, the room was clean and orderly, and the beds were made. No one knocked, but if anyone had, he would not have answered because the room was not his. He claimed the bag shown in the photos on the ottoman was T's bag, not the photographer's bag as LoDico had said, and that it had been on the bed when the police arrived. Defendant also disputed the placement of the ottoman in the State's photographs. When he fell asleep, his feet were on the ottoman, and because of his height, the ottoman could not have been as far away from the chair as depicted in the photograph.
Defendant explained the disarray shown in the photographs resulted from the officers' "flip[ing] the room." He said they threw mattresses and the box springs on the floor, and threw the covers in a corner. He denied that there were cigarettes, garbage, or drugs on the end table.
Defendant acknowledged having no prior contact with the officers and denied having been previously charged in New Jersey. On cross-examination, he eventually admitted that in addition to multiple New York convictions, he had pending drug possession charges in New Jersey. Defendant alleged after the officers "flipped" the room, they made up the beds, "fixed the room[,]" and "closed the drawers back like it was never touched."
The judge found LoDico to be credible and defendant to be incredible. She concluded, among other things, that the officers had probable cause to enter the motel room based on the smell of burnt rock cocaine. The judge further found the handgun was lawfully seized as both in plain view and subject to seizure incident to arrest.
Defendant raises one issue for our consideration:
POINT ONE - DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WAS IMPROPERLY DENIED.
A. Reasonable Suspicion to Confront Defendant.
B. Evidence in Plain View.
C. Search Incident to a Lawful Arrest.
In reviewing a motion to suppress, we give great deference to a judge's factual and credibility findings. State v. Mosner, 407 N.J. Super. 40, 59 (App. Div. 2009). We reverse only when the interests of justice require it. State v. Gamble, 218 N.J. 412, 425 (2014). "A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference." Ibid.
Generally, in order for a search or seizure to be constitutionally permissible, a warrant must first be obtained, based on probable cause. State v. Maryland, 167 N.J. 471, 482 (2001). This requirement springs from the Fourth Amendment of the United States Constitution, and Article 1, Paragraph 7 of the New Jersey Constitution, which protect citizens against unreasonable searches and seizures.
A warrantless search is presumed invalid unless it falls within a recognized exception. State v. Witt, 223 N.J. 409, 422 (2015). Nonetheless, a balance must be maintained between "individual freedom from police interference and the legitimate and reasonable needs of law enforcement." State v. Coles, 218 N.J. 322, 343 (2014). The State bears the burden, by a preponderance of the evidence, to establish that the warrantless search or seizure of an individual was justified in light of the totality of the circumstances. State v. Mann, 203 N.J. 328, 337-38 (2010).
The State has met its burden in this case. The officers were obligated to investigate, based on the information they received, whether drugs were being sold from motel rooms in this high drug traffic area. The tips were corroborated by the managers at both motels who complained about excessive foot traffic to the rooms. See State v. Padilla, 321 N.J. Super. 96, 107 (App. Div.), certif. denied, 162 N.J. 198 (1999). Thus, the officers' decision to knock at Room 214 for further investigation was reasonable. Had the officers failed to observe anything suspicious during their conversation with defendant, they would not have had any basis to take the matter further.
Once defendant opened the door, which he was not legally compelled to do, and LoDico smelled the odor of burnt rock cocaine, and saw empty wax wrappers on the floor of the motel room, however, the officers had at least cause to detain defendant while further inquiries were made. See State v. Myers, 442 N.J. Super. 287, 296-97 (App. Div. 2015), certif. denied, 224 N.J. 123 (2016); see also State v. Pineiro, 369 N.J. Super. 65, 73 (App. Div.), certif. denied, 181 N.J. 285 (2004) (stating that police officer ringing defendant's doorbell and defendant voluntarily admitting police officer is "the same as that of any other social guest or business visitor"); Padilla, supra, 321 N.J. Super. at 107-08 (finding that officers did not need to advise occupant of a motel room of her right to refuse to consent to their admission to the room when officers "merely sought permission to enter to continue their investigation."); State v. Rice, 251 N.J. Super. 136, 144 (App. Div. 1991) (concluding that the occupants of a home "had a right to bar the police from physical or visual access to the interior of their home").
The smell of burnt rock cocaine, the sight of a nervous occupant, and empty wax paper drug folds on the floor constituted probable cause which gave the officers the right to arrest defendant. See Myers, supra, 442 N.J. Super. at 296-97. Their presence in his motel room, while he dressed, was thus constitutionally permissible. And their lawful presence inside the motel room led to the plain view observations and seizure of both the crack cocaine on the end table as well as the guns hidden inside the ottoman.
As our Supreme Court recently reiterated, the plain view doctrine allows seizures without a warrant so long as an officer is "lawfully [] in the area where he observed and seized the incriminating item or contraband, and it [is] immediately apparent that the seized item is evidence of a crime." State v. Gonzales, No. A-5-15 (Nov. 15, 2016) (slip op. at 38). Defendant's arrest, and the seizure of weapons and contraband from the motel room, were unimpeachable.
Even if we were to conclude that the smell of burnt rock cocaine emanating from the motel room, the nervous occupant who had blocked the door, and the sight of the wax papers did not constitute probable cause, it certainly authorized investigative detention of defendant and entry into the motel room for the officers' safety. At that moment, the tip the officers had previously received was corroborated. The specific and articulable facts and rational inferences from those facts, gave rise to a reasonable suspicion of criminal activity. See State v. Nishina, 175 N.J. 502, 511 (2003). Moreover, LoDico knew that the tips about the men selling drugs from a motel room included their possession of weapons. For their own protection, the officers were justified in following defendant into the motel room, which in turn led to the discovery of the drugs and the guns.
Whether we categorize the odor of burnt rock cocaine and the sight of wax papers as giving rise to probable cause, or as authorizing an investigative detention, which for officer safety allowed them to follow defendant into his motel room while he obtained his identification, it is beyond cavil that the officers' presence in the motel room was justified. Hence the seizure of weapons and contraband in plain view was lawful, and the motion to suppress properly denied.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION