Opinion
DOCKET NO. A-3806-12T4
03-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ASHANTI THOMAS, Defendant-Appellant.
Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Jarit, of counsel and on the brief). Jenny M. Hsu, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Hsu, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Manahan. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-06-0614. Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Jarit, of counsel and on the brief). Jenny M. Hsu, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Hsu, of counsel and on the brief). PER CURIAM
Following the denial of her motion to suppress a gun and pills law enforcement officers seized from her bedroom while executing an arrest warrant, defendant Ashanti Thomas pled guilty to a possessory drug offense and was sentenced to a probationary term. She appeals from the order denying her suppression motion, contending the officers did not adequately "knock and announce" and otherwise acted unreasonably when they entered her apartment to arrest her. She also contends their seizure of the gun and pills did not fall within the plain view exception to the warrant requirement, and the trial court erred by ruling to the contrary. Based on our review of the record and applicable law, we reject defendant's arguments and affirm.
In a six-count indictment of defendant and co-defendant Carlos Rawls for controlled dangerous substance (CDS) and weapons offenses, a Mercer County grand jury charged defendant with third-degree possession of a CDS, oxycodone, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession with intent to deliver a CDS, oxycodone, N.J.S.A. 2C:35-5(a)(1) and -5(b)(7) (count two); third-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count three); and second-degree possession of a firearm while committing a CDS offense, N.J.S.A. 2C:39-4.1(a) (count five). Following the indictment, the trial judge conducted a hearing on both defendants' suppression motions and denied them. Thereafter, defendant pled guilty to count one. The court sentenced her to a three-year probationary term to be served concurrently with her sentence on an unrelated CDS charge, imposed fines and penalties, and dismissed the remaining counts.
Defendant appeals, presenting the following arguments for our consideration:
I. THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE OFFICERS' CONDUCT WAS UNREASONABLE, REND[ER]ING THE SEARCH AND SEIZURE UNCONSTITUTIONAL.
II. ALTERNATIVELY, THE PLAIN VIEW DOCTRINE DOES NOT JUSTIFY THE SEIZURE OF THE PILLS AND PRESCRIPTION BOTTLE BECAUSE THE STATE FAILED TO ESTABLISH THAT THE ILLEGALITY OF THE OBJECTS WAS IMMEDIATELY APPARENT TO THE OFFICERS.
Defendant argues in Point I that the officers who entered her home did so unreasonably because they did not have probable cause to believe she was present in her apartment when they served the warrant for her arrest; violated the "knock and announce rule" by not ringing a doorbell or buzzer and then waiting an adequate period of time before entering; did not re-announce themselves as they walked through the apartment with drawn guns; and, never announced their purpose for entering her apartment.
With the exception of the last of these arguments, we find they have insufficient merit to warrant extended discussion in a written opinion. R. 2:11-3 (e)(2). Suffice it to say that after considering the evidence presented at the suppression hearing, the trial judge found the officers' "straightforward" and "forthright" testimony to be credible and, based on his credibility determinations, found both that the officers' pre-arrest investigation provided probable cause to believe they were entering defendant's apartment where defendant was present and that the officers acted in an objectively reasonable manner when they entered defendant's apartment. As to those issues we conclude the trial judge's findings are supported by "sufficient credible evidence in the record," and his legal conclusions are sound, State v. Handy, 206 N.J. 39, 44-45 (2011), and therefore command our deference. State v. Johnson, 42 N.J. 146, 161 (1964). In fact, we previously rejected the same arguments when co-defendant Rawls made them in his direct appeal. State v. Rawls, No. A-5554-11 (App. Div. Apr. 7, 2014). For the same reasons, we reject defendant's arguments here.
The co-defendant did not raise in his appeal the last argument defendant raises in Point I here — that the officers did not announce their purpose for being at defendant's apartment before entering it. We conclude the failure of the officers to announce their purpose is not a basis for suppressing the evidence the officers seized. To provide the context for that argument, we recount what occurred when the officers entered defendant's apartment:
Wearing black exterior ballistics vests with the word "Sheriff" in gold letters on the front and rear panels, Investigator Perez and Detective Stewart approached the door [to Thomas'] apartment. . . . According to Investigator Perez, the door was unlocked and slightly ajar. He knocked on the door and yelled into the apartment, "sheriff's office," but received no answer. When he knocked a second time, he heard either voices or some type of movement coming from the upstairs apartment. He and Detective Stewart then walked up the stairs, their weapons drawn.
When the officers reached the top landing of the stairs, which was "actually the living room floor," they entered an open area. Looking around the living room to their right, the dining room in front of them, and the kitchen to their left, they saw no one. They then "[made] their way" to their right, toward the area of the apartment's two bedrooms where they had heard the noise. According to Investigator Perez, during their continuing search of the apartment, and as he walked toward the bedroom, he "continued to identify [himself] as 'Sheriff's' . . ." The remainder of Investigator Perez's answer was apparently cut off when defense counsel began his next question before the Investigator completed his answer.
The officers entered the bedroom through its unlocked, open door. When Investigator Perez stepped into the bedroom, he saw Thomas and [Rawls] in bed, Thomas on the right side and [Rawls] on the left.
Investigator Perez repeatedly commanded [Rawls] and Thomas to show their hands, which were under the covers. They initially failed to comply. Thomas then began to get out of bed, Inspector Perez holstered his weapon, and Thomas lunged toward the floor
where Inspector Perez observed what he thought was a handgun. He yelled "gun," pushed Thomas back on the bed, and handcuffed her.[State v. Rawls, supra, slip op. at 4-7]
At the same time, Stewart approached [Rawls], yelled "gun," and then placed [Rawls] in handcuffs. Detective Stewart had seen a handgun in a boot beneath the left side of the bed.
The officers retrieved the weapons. The weapon that Inspector Perez had seen turned out to be a pellet gun. Detective Stewart seized a defaced handgun from the boot beneath the bed.
Investigator Perez also seized a box of .38 caliber cartridges from a nightstand next to defendant, and prescription pills lying on a bureau in the bedroom. The cartridge box and fifty-one prescription pills were in plain view. From Investigator Perez's previous experience, which included his completion of narcotics courses and participation in more than 200 narcotics investigations, he recognized the pills as oxycontin. The officer also saw on the bureau, with the pills, labeled and unlabeled brownish-yellow prescription bottles with white caps.
The United States and New Jersey Constitutions "shield[] our State's residents from unreasonable searches and seizures." State v. Rockford, 213 N.J. 424, 440 (2013); U.S. Const. amend. IV; N.J. Const., art. I, ¶ 7. These constitutional protections apply to the methods law enforcement officers use to execute search and arrest warrants. See Rockford, supra, 213 N.J. at 440-41.
When police possess a valid arrest warrant, they have a "'limited authority to enter a dwelling in which [a defendant] lives when there is reason to believe [he or she] is within.'" State v. Jones, 143 N.J. 4, 15 (1995) (quoting Payton v. New York, 445 U.S. 573, 602-03, 100 S. Ct. 1371, 1388-89, 63 L. Ed. 2d 639, 660-61 (1980)). They nonetheless must execute the warrant in an objectively reasonable manner. "Ordinarily the common law requires that peace officers may break into a dwelling house for the purpose of making an arrest only after demanding admittance and explaining their purpose." State v. Fair, 45 N.J. 77, 86 (1965).
This common law mandate does not apply, however, to circumstances in which "immediate action is required to preserve evidence, . . . the officer's peril would be increased, . . . or the arrest would be frustrated . . . ." Ibid. (citations omitted). Nor is suppression of evidence an appropriate remedy if the three purposes for the knock-and-announce rule — decreasing the likelihood of violence, minimizing the risk of entry into the wrong premises, and preventing property destruction — would not be served. See State v. Bilancio, 318 N.J. Super. 408, 417-18 (App. Div.), certif. denied, 160 N.J. 478 (1999).
The United States Supreme Court has held the exclusionary rule inapplicable to knock-and-announce violations because the rule "has never protected . . . one's interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable." Hudson v. Michigan, 547 U.S. 586, 594, 126 S. Ct. 2159, 2165, 165 L.Ed. 2d 56, 66 (2006). In State v. Robinson, 200 N.J. 1, 22, n.4, our Supreme Court decided that in light of its disposition of that appeal, it was unnecessary to reach the State's argument "that the suppression of evidence is not the proper remedy when the only infirmity asserted is the claimed unreasonable execution of a valid warrant."
In the case before us, as noted above, the law enforcement officers knocked twice and announced themselves not only before entering defendant's apartment, but also as they entered and moved toward the bedroom. When the officers announced themselves, they "yelled." Neither defendant nor co-defendant responded. Under those circumstances — where the occupants did not respond to the officers yelling their announcements — none of the purposes underpinning the knock-and-announce rule would be served by suppressing the evidence the officers saw in plain view and seized because they did not also yell out why they were there. See Bilancio, supra, 318 N.J. Super. at 417-18. For that reason, we decline to suppress the evidence.
Defendant's argument in Point II of her brief lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION