STATE OF NEW JERSEY VS. KEITH M. TURNER, JR. (14-07-0430 AND 15-08-0399, SALEM COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-2406-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH M. TURNER, JR., a/k/a KEITH
M. TURNER and MICHAEL TURNER,
Defendant-Appellant.
_________________________________
Submitted February 27, 2018 – Decided September 27, 2018
Before Judges Yannotti and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Salem County, Indictment Nos. 14-07-0430
and 15-08-0399.
Joseph E. Krakora, Public Defender, attorney for
appellant (Rochelle Watson, Assistant Deputy Public
Defender, of counsel and on the brief).
John T. Lenahan, Salem County Prosecutor, attorney
for respondent (David M. Galemba, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
DeAlmeida, J.A.D.
Defendant Keith M. Turner, Jr. challenges a Law Division order denying
his motion to suppress evidence obtained during his arrest, as well as the
sentence imposed for three drug-related charges to which he subsequently pled
guilty. We affirm.
I.
The following facts are derived from the record. On March 6, 2015, Salem
City Police Officer Sean Simpkins received information from an anonymous
source that defendant had an active arrest warrant and was residing at XXX
Thompson Street. Simpkins confirmed the existence of the warrant, which did
not list XXX Thompson Street as defendant's address, and decided to observe
the residence to determine if defendant was living there. Simpkins saw
defendant's mother and sister leaving the home.
On March 7, 2015, Simpkins returned to the residence, along with two
officers to look for defendant. After Simpkins knocked on the front door,
someone inside said "come in.” Simpkins, while in full uniform, stepped inside,
identified himself, and asked for defendant. In response, the person who
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answered the knock said something to the effect of, "'[d]o what you gotta do,'
'[u]pstairs,' or '[w]hatever.’"
The officers went further into the home. On the first floor they
encountered defendant's paramour. Simpkins testified that upon seeing the
officers, the paramour yelled up the stairs "something like, 'Baby, they're
coming,' or 'Baby, I'm coming.'" Simpkins heard several male voices talking
upstairs and began to walk upstairs. While Simpkins was on the stairs,
defendant's paramour unsuccessfully tried to stop his progress by swiping at his
feet. When Simpkins reached the top of the stairs, he saw co-defendant Sean
Williams run across the hallway and enter a bedroom to the left. Upon seei ng
Williams reach underneath a mattress, Simpkins drew his weapon and ordered
him to show his hands. Simpkins then saw defendant and his adult son in the
room to the right and ordered them to get on the ground. Simpkins told
defendant he had a warrant for his arrest and put him in handcuffs. In the room,
Simpkins smelled marijuana, and saw marijuana, and a clear plastic bag
containing a white rock-like substance in plain sight.
K.S.1 then exited from a back room and asked what was happening.
Simpkins informed her that he was there to arrest defendant. K.S. told Simpkins
1
We refer to K.S. by her initials to preserve her privacy.
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she was the lessee of the residence. He advised her that he could not ignore the
narcotics in plain view and asked defendant and K.S. for permission to conduct
a search.
Simpkins read both a Permission to Search form and Miranda warning
card to defendant, who signed both. K.S. also signed the Permission to Search
form. That form stated that the signatory "authorize[s the] officers to remove
any documents or property which [the officers] consider pertinent to their
investigation, knowing that the same can be used as evidence against" the
signatory.
After being advised of his Miranda rights, and before a search began,
defendant admitted that everything in the bedroom where he was arrested was
his property. A search revealed suspected heroin, drug paraphernalia, United
States currency, and a box of vials. In the bedroom where Williams was located
officers found three vials of suspected marijuana, as well as a backpack
containing a pistol.
Salem County Indictment No. 15-08-0399 relates to the evidence found
during defendant's arrest. The Indictment charged defendant with two counts of
third-degree possession of a controlled dangerous substance (CDS) (heroin and
cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-
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5(b)(3); one count of fourth-degree possession of CDS (marijuana) with intent
to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12); two counts
of third-degree possession of CDS (heroin and cocaine), N.J.S.A. 2C:35-
10(a)(1); one count second-degree of unlawful possession of a weapon, N.J.S.A.
2C:39-5(b); and one count of second-degree possession of a weapon by certain
persons, N.J.S.A. 2C:39-7(b).
At the time of his arrest, defendant had been charged under Salem County
Indictment No. 14-07-0430 with third-degree possession of CDS (heroin),
N.J.S.A. 2C:35-10(a)(1); and third-degree possession of CDS (heroin) with
intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3).
On November 20, 2015, defendant appeared before the trial court on a
motion to suppress the evidence found during his arrest, arguing that Simpkins
did not have valid consent from K.S. or defendant to search defendant's
bedroom. 2
The trial court denied defendant's suppression motion. In addition to
addressing the argument raised by defendant, the court also found that Simpkins
had an objectively reasonable belief that defendant was residing at the home and
2
Defendant also moved to suppress his statement to the arresting officer, and to
sever his trial from that of his codefendant. Defendant did not preserve the right
to appeal the trial court's resolution of those aspects of his motion.
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was present at the time of the arrest. The court also found that the officers were
invited into the residence by the person who answered the door, and that when
defendant's paramour called upstairs to defendant, exigent circumstances
permitted the officers to go upstairs to prevent defendant's escape and the
destruction of evidence.
On February 3, 2016, defendant entered a guilty plea to one count of third-
degree possession of CDS under Indictment 14-07-0430, and two counts of
third-degree possession of CDS under 15-08-0399. In exchange for the plea, the
State agreed to recommend a sentence of three years of incarceration with an
eighteen-month period of parole ineligibility on all three counts to run
concurrently. The agreement provided that if defendant failed to appear for his
sentencing he would be exposed to any ordinary terms that could be imposed on
the three counts and the State could move for an extended term.
On June 3, 2016, defendant failed to appear for sentencing. As a result, a
bench warrant was issued for his arrest. The warrant was executed on August
22, 2016.
On November 1, 2016, the trial court held a sentencing hearing.
Defendant argued that he did not attend the June 3, 2016 hearing because he was
hospitalized. He did not turn himself in when he was released from the hospital
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because he thought he would receive notice from the court of a new sentencing
date. Although finding that the documentary evidence defendant submitted to
establish his hospitalization was illegible, the trial court gave him the benefit of
the doubt and assumed he was hospitalized on the original sentencing date.
However, the trial court found that defendant did not come to court after the
emergent situation ended, despite being aware from prior experience that a
bench warrant would be issued for him. The court considered the matter an open
plea.
The State elected not to seek an extended term and recommended
defendant receive on each conviction a five-year term of imprisonment, subject
to an eighteen-month period of parole ineligibility, with all sentences to be
served concurrently. After finding and weighing the aggravating and mitigating
factors, the court sentenced defendant as recommended by the State, imposed
fines and penalties, and ordered forfeiture of all seized property. This appeal
followed.
Defendant raises the following arguments for our consideration:
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POINT I
THE SEARCH OF THE THIRD PARTY'S HOME TO
EXECUTE THE ARREST WARRANT AGAINST
DEFENDANT WAS UNLAWFUL.
i. THE POLICE LACKED AN
OBJECTIVELY REASONABLE BASIS
TO BELIEVE THAT DEFENDANT
RESIDED AT [XXX] THOMPSON
STREET.
ii. THE UNIDENTIFIED PERSON'S
OFFHAND REMARK THAT
DEFENDANT WAS "UPSTAIRS" AND
THAT THE POLICE COULD "DO WHAT
YOU GOTTA DO" DOES NOT
CONSTITUTE VALID CONSENT TO
SEARCH THE HOME.
POINT II
THE SENTENCE IMPOSED IS MANIFESTLY
EXCESSIVE.
In his reply brief, defendant raised an additional argument:
POINT I
BECAUSE THE TRIAL COURT MADE A FACTUAL
FINDING THAT THE POLICE HAD A VALID
BASIS TO SUSPECT THAT DEFENDANT LIVED
AT THE RESIDENCE, AND BECAUSE THE
RECORD IS ADEQUATELY DEVELOPED ON THIS
ISSUE, DEFENDANT'S CHALLENGE TO THE
ENTRY INTO THE THIRD-PARTY'S HOME TO
EXECUTE THE ARREST WARRANT IS PROPERLY
BEFORE THE APPELLATE COURT.
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II.
The arguments set forth in defendant's merits brief were not raised in the
trial court. "It is a well-settled principle that our appellate courts will decline to
consider questions or issues not properly presented to the trial court when an
opportunity for such a presentation is available unless the questions so raised on
appeal go to the jurisdiction of the trial court or concern matters of great public
interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quotations
omitted). Neither exception applies here. We could, therefore, decline to review
defendant’s arguments.
However, despite the narrow argument raised by defendant in support of
his suppression motion, the trial court carefully examined every aspect of
defendant's arrest and the search of XXX Thompson Street. The trial court made
findings of fact and conclusions of law with respect to whether the officers had
an objectively reasonable basis to believe defendant resided at the home and
would be present, as well as whether the officers validly entered the second floor
of the home. In light of the record developed in the trial court, we will address
defendant's belatedly raised arguments.
"[A]n appellate court reviewing a motion to suppress must uphold the
factual findings underlying the trial court's decision so long as those findings
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are supported by sufficient credible evidence in the record." State v. Elders, 192
N.J. 224, 243 (2007) (quotations omitted). The “findings of the trial judge . . .
are substantially influenced by his [or her] opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (citation omitted). "An
appellate court should disregard those findings only when a trial court's findings
of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015).
The Fourth Amendment, and Article I, Paragraph 7 of the New Jersey
Constitution, protect "[t]he 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. "'[P]hysical entry of the home is
the chief evil against which the wording of the Fourth Amendment is directed.'"
Payton v. New York, 445 U.S. 573, 585 (1980) (quoting United States v. United
States Dist. Court, 407 U.S. 297, 313 (1972)). "Under our constitutional
jurisprudence, when it is practicable to do so, the police are generally required
to secure a warrant before conducting a search of certain places." State v.
Hathaway, 222 N.J. 453, 468 (2015). "[I]n the absence of consent or exigency,
an arrest warrant is not lawfully executed in a dwelling unless the officers
executing the warrant have objectively reasonable bases for believing that the
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person named in the warrant both resides in the dwelling and is within the
dwelling at the time." State v. Cleveland, 371 N.J. Super. 286, 299 (App. Div.
2004) (quotations omitted).
After observing Simpkins during the suppression hearing, the trial court
found the officer to be credible, an evaluation we have no reason to reject. The
court concluded that the officer had an objectively reasonable basis to believe
defendant was residing and present at the residence based on the anonymous tip,
his observation of defendant's mother and sister at the residence the day before,
and the statement of the person who answered the door that defendant was
upstairs. The record amply supports these findings.
We are not persuaded by defendant's argument that our holding in State v.
Miller, 342 N.J. Super. 474, 479 (App. Div. 2000), requires reversal of the trial
court's decision. In that case, a warrant had been issued for Miller's arrest. The
address listed on the warrant proved not to be his home. Officers, suspecting
that Miller could be found at what they believed was his paramour's home, went
to that address to look for him. Id. at 481. The mother of Miller's paramour was
there and told officers that her daughter and Miller lived at another address and
were there at that time. Ibid. The officers proceeded immediately to that
address. The paramour answered the door and stated that Miller was not in the
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home. The trial court found that the officers entered the residence despite not
having obtained consent to do so. Ibid. The officers discovered Miller in the
home and found incriminating evidence while effectuating his arrest. The trial
court suppressed the evidence, finding that the residence at which Miller was
arrested was not his home, and that the officers' warrantless entry into the home
was not lawful. Ibid.
On appeal, we affirmed the trial court's decision. We held that a statement
that a subject of a warrant resides at a particular residence "unsupported by
observation, investigation or other inquiry" is, standing alone, insufficient to
support an objectively reasonable belief to enter that residence to effectuate an
arrest on the warrant. Id. at 497. As we explained, "[t]he officers in this matter
did nothing to confirm independently the snippet of opinion they had received
from [the paramour's] mother," did not suggest that they anticipated Miller's
departure from the premises, and offered no basis to believe he was present in
the home at the time of entry. Id. at 500.
Here, Simpkins, after receiving a tip from an anonymous source, observed
two members of defendant's family leaving the residence in question. The
following day, the person who answered the door told the officer that defendant
was on the second floor, strengthening the officer's belief that defendant resided
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in the home and was present. These facts form an objectively reasonable basis
to believe that defendant resided at the home and was present at the time that
the officer was there.3
In addition, there is sufficient support in the record for the trial court's
conclusion that the officers obtained consent to enter the premises from the
person who answered the front door. "A search conducted without a warrant is
presumptively invalid, and the burden falls on the State to demonstrate that the
search is justified by one of the 'few specifically established and well-delineated
exceptions' to the warrant requirement." State v. Frankel, 179 N.J. 586, 598
(2004) (quoting Mincey v. Arizona, 437 U.S. 385, 390 (1978)). "[O]ur case law
permits a warrantless search when incident to a lawful arrest [or] when consent
is given . . . ." State v. Johnson, 193 N.J. 528, 552 (2008) (citing State v. Moore,
181 N.J. 40, 45 (2004)).
When Simpkins knocked on the door someone inside invited him to "come
in." Once inside, the officer identified himself and explained he was looking
for defendant. The person responded "[d]o what you gotta do," "[u]pstairs," or
3
We acknowledge the State's argument that at the suppression hearing it was
deprived of the opportunity to introduce evidence with respect to the reliability
of the anonymous source because defendant did not argue that Simpkins lacked
an objectively reasonable basis to believe that defendant resided at the home in
question.
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"[w]hatever." By identifying defendant's location in the home and indicating
that the officer could fulfill his stated purpose, the person consented to the
officer's entry into the residence.
Moreover, the trial court found that exigent circumstances were present
shortly after the officers entered the home. Exigent circumstances compelling
action are an exception to the warrant requirement. Moore, 181 N.J. at 45.
Although "exigent circumstances" cannot be precisely
defined or reduced to a neat formula, . . . some factors
to be considered in determining whether law
enforcement officials faced such circumstances are the
urgency of the situation, the time it will take to secure
a warrant, the seriousness of the crime under
investigation, and the threat that evidence will be
destroyed or lost or that the physical well-being of
people will be endangered unless immediate action is
taken . . . .
[Johnson, 193 N.J. at 552-53 (citations omitted).]
Here, after Simpkins was informed that defendant was upstairs, the officer
encountered defendant's paramour, who yelled up the stairs "something like,
'Baby, they're coming.'" Simpkins then heard male voices upstairs and
proceeded upstairs. Defendant's paramour attempted to stop him by swiping at
his feet. The trial court found that the occurrence of this series of events
"raise[d] great concern that . . . if there is any evidence, that it could be
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destroyed. That, at minimum, the defendant may be seeking to run." We find
sufficient credible evidence in the record supporting these conclusions.
Moreover, we note that once the officers were lawfully in the home they
had a legitimate interest "in taking steps to assure themselves that the house in
which a suspect is being . . . arrested is not harboring other persons who are
dangerous and who could unexpectedly launch an attack." Maryland v. Buie,
494 U.S. 325, 333 (1990). Simpkins observed or heard multiple people in the
residence, observed one person yell a warning to someone upstairs, and
encountered an attempt to physically impede his progress toward the location
where he was previously told he would find defendant.
III.
We review a sentence for abuse of discretion. See State v. Robinson, 217
N.J. 594, 603 (2014) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). "A
defendant who pleads guilty in reliance on a promise or agreement of the State
has the right to expect that the bargain will be fulfilled." State v. Subin, 222
N.J. Super. 227, 238 (App. Div. 1988) (citing Santobello v. New York, 404 U.S.
257, 262 (1971)). A "component of a plea agreement that provides for an
increased sentence when a defendant fails to appear that is voluntarily and
knowingly entered into between a defendant and the State does not offend public
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policy." Subin, 222 N.J. Super. at 238-39. The sentencing court, however,
cannot impose a sentence only based on the defendant's non-appearance. Ibid."The automatic imposition of enhanced punishment for a non-appearance
without holding a hearing or considering an explanation would be unwarranted."
State v. Shaw, 131 N.J. 1, 16 (1993). "The court must provide a fair hearing to
determine whether the violation of the terms of the arrangement warrants its
revocation." Id. at 16-17.
The trial court held a hearing to determine whether defendant's failure to
appear warranted revocation of the plea agreement. The court accepted as true
defendant's claim to have been hospitalized on the original sentencing date.
However, the court found that defendant's failure to turn himself in upon release
from the hospital was not justified. We see no basis to disturb the trial court's
findings.
Finally, our review of the sentencing record reveals that the trial court
appropriately weighed the aggravating factors, N.J.S.A. 2C:44-1(a) (3), (6), and
(9), and a lack of mitigating factors, and imposed a reasonable sentence that in
no way "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).
Affirmed.
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