STATE OF NEW JERSEY IN THE INTEREST OF Z.M. (FJ-19-0136-17, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-4587-16T4
STATE OF NEW JERSEY IN
THE INTEREST OF Z.M., a Juvenile.
___________________________________
Submitted March 8, 2018 – Decided July 12, 2018
Before Judges Haas and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FJ-19-0136-17.
Joseph E. Krakora, Public Defender, attorney
for appellant Z.M. (Brian P. Keenan, Assistant
Deputy Public Defender, on the briefs).
Francis A. Koch, Sussex County Prosecutor,
attorney for respondent State of New Jersey
(Shaina Brenner, Assistant Prosecutor, of
counsel and on the Brief).
PER CURIAM
After his motion to suppress evidence seized without a warrant
was denied, juvenile Z.M., born in June 2000, pled guilty to
committing acts of delinquency which, if committed by an adult,
would constitute second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b); third-degree unlawful possession of cocaine,
N.J.S.A. 2C:35-10(a)(1); third-degree possession of certain
controlled dangerous substances (CDS) without a prescription,
N.J.S.A. 2C:35-10.5(a)(3); possession of under fifty grams of
marijuana, a disorderly persons offense, N.J.S.A. 2C:35-10(a)(4);
and possession of drug paraphernalia, a disorderly persons
offense, N.J.S.A. 2C:36-2. By way of disposition, on June 9,
2017, in accordance with the plea agreement, the Family Part judge
placed Z.M. on probation for a period of three years, subject to
standard and special conditions of probation.
On appeal, Z.M. raises the following contentions for our
consideration:
POINT I
THE MOTION JUDGE ERRED IN DENYING THE
JUVENILE'S MOTION TO SUPPRESS BECAUSE NEITHER
THE COMMUNITY[-]CARETAKING, NOR THE
EMERGENCY[-]AID DOCTRINE APPLY TO THE
WARRANTLESS SEARCH OF HIS ROOM.
A. BECAUSE THE JUVENILE WAS IN NO
DANGER AFTER MIDNIGHT WHEN HE WAS AT
HOME SLEEPING IN HIS BEDROOM, AND
THE INFORMATION CONNECTING HIM TO A
GUN WAS TENUOUS AT BEST, THE POLICE
HAD NO OBJECTIVELY REASONABLE BASIS
TO CONCLUDE THAT AN EMERGENCY WAS
ONGOING; CONSEQUENTLY, NEITHER THE
EMERGENCY[-]AID, NOT THE
COMMUNITY[-]CARETAKING DOCTRINES
APPLY TO THE WARRANTLESS SEARCH OF
HIS ROOM.
B. THE EVIDENCE DISCOVERED IN THE
JUVENILE'S ROOM AFTER HE WAS REMOVED
MUST BE SUPPRESSED BECAUSE THE
POLICE HAD NO OBJECTIVELY
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REASONABLE BASIS TO REMAIN IN HIS
ROOM AFTER IT WAS CLEAR THAT THERE
WAS NO EMERGENCY OCCURRING THERE.
After reviewing the record in light of the contentions advanced
on appeal, we affirm.
We glean the following facts from the evidence presented by
the State at the suppression hearing conducted on May 10 and 15,
2017, during which the State elicited testimony from Patrolman
Sean Perry and Sergeant David Dehardt of the Vernon Township Police
Department and New Jersey State Troopers Jason Smith, Sean
Sullivan, and Shamik Songui. The juvenile's father also testified
for the State.
At approximately 11:00 p.m. on January 2, 2017, Z.M.'s father
went to Vernon Township police headquarters, expressing concerns
about his son's wellbeing. Z.M. had lived with his father in
Vernon Township until about July 2016 when he moved in with his
mother after his parents divorced. Vernon Township police officers
were familiar with Z.M. based on prior reports of truancy,
threatening behavior, anger issues and mental health concerns.
Z.M.'s father showed Patrolman Perry and Sergeant Dehardt a
photograph on his phone, depicting visible injuries on his son's
face. He explained that he had received the photograph from his
son at approximately 1:25 a.m. earlier that day during a Facebook
messaging exchange, in which Z.M. indicated that the person who
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assaulted him would "learn his lesson." Z.M.'s father explained
further that at approximately 10:30 p.m. that night, he received
a photograph from one of his daughters depicting a handgun, a
loaded magazine and a large sum of cash with a caption stating
"[s]hotty for the body." Z.M. had reportedly posted the photograph
on Snapchat and a former neighbor had forwarded the photo to his
daughter, who in turn forwarded it to him. Z.M.'s father forwarded
both photographs to Patrolman Perry and told the officers he had
attempted to contact his ex-wife and his son several times
throughout the day without success. Although his other daughter
who resided with Z.M. had just texted that Z.M. was home asleep,
he was still concerned and agreed that the police should check on
his son.
At 11:33 p.m., Sergeant Dehardt contacted the State Police
Barracks in the town where Z.M.'s mother resided and spoke to
Trooper Smith, relaying the information provided by Z.M.'s father
as well as the department's prior experience with Z.M. Although
Sergeant Dehardt was unsure whether Z.M. had the gun depicted in
the Snapchat posting in his possession, he requested a welfare
check on the juvenile to allay his father's concerns.1 Accompanied
by four other troopers who were all briefed on the details, Trooper
1
The recorded telephone conversation between Dehardt and Smith
was played during the hearing.
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Smith responded to the juvenile's mother's home, arriving at about
midnight. When Z.M.'s mother opened the door, Trooper Smith
explained that they were there to conduct a welfare check based
on the concerns Z.M.'s father expressed to Vernon Township police
officers.2 Z.M.'s mother, who by all accounts was fully
cooperative, invited them into her home and escorted four of the
troopers upstairs to Z.M.'s bedroom, while one trooper remained
outside to secure the exterior of the home.
Initially, Z.M.'s mother knocked repeatedly on Z.M.'s locked
bedroom door. When there was no answer, she retrieved a tool from
the kitchen and unlocked the door. As the door opened, all four
troopers detected the odor of burnt marijuana and, once inside the
bedroom, two of the troopers detected the odor of raw marijuana.
When Trooper Smith turned on the bedroom lights, the troopers
observed a bong on the floor in the center of the room and Z.M.
sleeping on the bed. Troopers Smith and Sullivan noted that Z.M.
"had a black eye" and Trooper Songui recalled that Z.M. "was beat
up pretty bad[ly]." After some difficulty waking Z.M., Trooper
Smith finally awakened him and escorted him to an adjacent living
2
A welfare or well-being check was described as "a call into the
station" by "either [a] concerned relative or friend or neighbor,"
requesting police to check on the well-being of an individual
based on a concern that the person may be "sick, not feeling well,
depressed, [or] threaten[ed] their own life."
5 A-4587-16T4
room about twenty feet away. While Troopers Smith and Nugnes
remained with Z.M., Troopers Songui and Sullivan secured the
bedroom. The troopers testified that given the possible presence
of a handgun, they were all concerned about officer safety as well
as the safety of the other occupants in the house and the
possibility of Z.M. retrieving the weapon.
Upon entering the bedroom, which was described as about ten
feet by ten feet, Trooper Songui "traced" the "strong odor of
marijuana" to a dresser where the dresser drawer "was cracked
open" over two inches. Using his flashlight, he "kind of peaked
in" the dresser drawer and observed "a huge bag of weed" inside.
Although Trooper Songui testified that he pointed out his discovery
to Trooper Sullivan before exiting the room, Trooper Sullivan had
no recollection of that.
Trooper Sullivan testified that from where he was standing
in the center of the room, about two to three feet away, he
observed one of the dresser drawers that was about "waist height"
"an inch to two inches" ajar. Inside the drawer, he observed "the
muzzle of a handgun . . . stamped Smith & Wesson" laying upside
down. Referring to the gun, he immediately announced he "got it."
Trooper Smith confirmed he heard Trooper Sullivan yell out that
he "found it," and both troopers testified that the discovery was
made within thirty seconds to a minute of Trooper Sullivan entering
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the bedroom. When Trooper Sullivan opened the drawer to retrieve
the handgun, he observed cash, drug paraphernalia and other drugs
in the drawer, which later tested positive for marijuana, cocaine,
and Alprazolam. Thereafter, Z.M. was handcuffed and detained.
At the hearing, Trooper Sullivan testified that the handgun
depicted in the Snapchat photo matched the handgun he recovered
in Z.M.'s dresser drawer. He also testified that none of the
troopers had their guns drawn during the entire encounter.
Further, the troopers testified that at no point did they yell or
scream at anyone in the residence or enter any other part of the
residence.
Following the hearing, in an oral decision, Judge Michael C.
Gaus denied the motion, finding that the search and seizure of the
gun, the drugs and the paraphernalia were valid under the
emergency-aid, community-caretaking and plain-view exceptions to
the warrant requirement, and that Z.M.'s mother provided consent
for the troopers to enter the residence and Z.M.'s bedroom.
Initially, noting that the troopers' testimony was generally
consistent and "[m]any of the facts [were] not in dispute," the
judge acknowledged the discrepancy between Trooper Sullivan's and
Songui's testimony, regarding Songui pointing out to Sullivan his
observation of "a huge bag of weed" in the dresser drawer.
The judge noted
7 A-4587-16T4
[w]hile that testimony is certainly
inconsistent, it does not mean that the
troopers don't have any credibility and that
they're making up the story in order to cover
up . . . an illegal search of the room. As a
matter of fact, if they were trying to cover
up an illegal search of the room, Trooper
Songui, one would think would have done a much
better job of coming up with some kind of a
story for his actions.
. . . .
So the [c]ourt finds that it is certainly
possible for Trooper Sullivan to have been in
the room, but to have been looking in another
part of the room and not have seen Trooper
Songui make that move. . . . [I]t's also
possible that Trooper Songui has simply not
recalled the incidents of that day correctly.
Next, citing State v. Frankel, 179 N.J. 586 (2004), the judge
found that "the actions of the officers were clearly justified"
under the emergency-aid doctrine as they were
inside the room . . . for the purpose of
rendering aid based upon the reports of the
potential injuries that Z.M. had sustained
coupled with the mental health issues that had
been previously described by Sergeant Dehardt
to Trooper Smith and were then . . . conveyed
to the other troopers along with the threat
of an assault . . . , particularly considering
Z.M.'s threat that the person who assaulted
him would get what he had coming to him.
The judge also found support under the community-caretaking
doctrine as "a separate basis [for the troopers] to gain access
to determine that Z.M., in fact, was not in need of further
assistance."
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The judge rejected the juvenile's reliance on State v.
Edmonds, 211 N.J. 117 (2012). In Edmonds, the Court invalidated
a warrantless search under either the emergency-aid or community-
caretaking exception where the police responded to an "unverified
9-1-1 call" reporting an alleged domestic dispute at a residence,
possibly involving a handgun. Id. at 121. Despite the resident's
assurance "that there was no problem in her home[,]" the police
entered the residence without her consent and found her eleven-
year-old son inside "unharmed, without any visible injuries or
signs of distress and no indication of a domestic disturbance
inside the apartment." Ibid. Nonetheless, the police removed the
defendant, who was watching television, from an adjoining room and
frisked him, and then proceeded to search the area where the
defendant had been seated, finding a handgun underneath a pillow.
Ibid.
Judge Gaus found that "there [were] many, many distinguishing
facts between [Edmonds] and . . . this case." First, the judge
noted that "the original concern was raised by Z.M.'s father,"
rather than "an unidentified caller." Next, Z.M.'s mother
"[c]ooperated fully," "invited the [troopers] inside" the
residence, and "consented" to them entering Z.M.'s bedroom.
Further, the troopers found Z.M. "injured" and in the condition
that "had been described to them," in contrast to Edmonds where
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there was no identifiable victim. Additionally, when the troopers
entered Z.M.'s bedroom, "they immediately noticed the bong in the
center of the room and . . . the strong odor of both burnt and raw
marijuana," in contrast to Edmonds where "[t]here was no evidence"
of "any other crime." Finally, according to Judge Gaus, in
Edmonds, the suspect "had already been detained and frisked before
the police undertook a search of the room where he was originally
located" and the weapon was ultimately found "in a pillow," rather
than in plain view as was the case here.
Turning to the discovery of the gun in the dresser drawer,
relying on State v. Gonzales, 227 N.J. 77 (2016), and State v.
Padilla, 321 N.J. Super. 96 (App. Div. 1999), Judge Gaus determined
that the search was justified under the plain-view doctrine. The
judge found that the troopers' "primary motivation . . . was
determining whether or not Z.M. was safe and whether or not he
required any aid." Further, as in Padilla, the judge was
"satisfied that once inside the room, they did not conduct a
search." Rather, "they made a visual observation throughout the
room in light of the information" conveyed to the troopers going
to the scene. The judge found that the troopers "acted reasonably
in making visual observations to assure themselves that no weapons
were present," and to ensure "that Z.M. could not try to make an
unanticipated movement . . . in order to try to get to a weapon."
10 A-4587-16T4
The judge concluded that the troopers
were lawfully in the [viewing] area in order
to render aid and to fulfill their community[-
]caretaking role.
They were not aware of the specific
location of any gun. And they clearly did not
enter the premises in order to rely upon plain
view as . . . a pretext. They could have no
way of anticipating that the gun would be out
in plain view. . . .
. . . And, obviously a Smith & Wesson
handgun being in the partially ajarred drawer
[of a] [sixteen]-year old was certainly
associated with criminal activity. That gave
Trooper Sullivan the authority to open the
drawer and that led to the discovery of the
other items that were found therein.
The judge entered a memorializing order and this appeal followed.
On appeal, the juvenile argues that "[t]he motion judge erred
in determining that the evidence seized . . . was admissible
pursuant to the emergency[-]aid and community[-]caretaking
exceptions to the warrant requirement" because "[t]here were no
exigent circumstances." The juvenile argues further that "[e]ven
if the troopers' presence within [Z.M.'s] room was initially
appropriate, they exceeded the scope of the exceptions when they
remained in the room for an additional ninety seconds looking
around until they found the gun." We disagree.
When reviewing a motion to suppress, we "must uphold the
factual findings underlying the trial court's decision so long as
11 A-4587-16T4
those findings are supported by sufficient credible evidence on
the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting
State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings warrant
particular deference when they are 'substantially influenced by
[the trial judge's] opportunity to hear and see the witnesses and
to have the "feel" of the case, which a reviewing court cannot
enjoy.'" Ibid. (alteration in original) (quoting Robinson, 200
N.J. at 15). However, "[t]o the extent that the trial court's
determination rests upon a legal conclusion, we conduct a de novo,
plenary review." Ibid.
"Both the United States Constitution and the New Jersey
Constitution guarantee an individual's right to be secure against
unreasonable searches or seizures." State v. Minitee, 210 N.J.
307, 318 (2012). Searches and seizures conducted without a
warrant, "particularly in a home, are presumptively unreasonable."
Edmonds, 211 N.J. at 129 (quoting State v. Bolte, 115 N.J. 579,
585 (1989)). As such, the State has the burden of proving by a
preponderance of the evidence that such searches and seizures are
"justified by one of the '"well-delineated exceptions" to the
warrant requirement.'" State v. Shaw, 213 N.J. 398, 409 (2012)
(quoting Frankel, 179 N.J. at 598).
Two such exceptions to the warrant requirement are the
emergency-aid and community-caretaking doctrines. State v.
12 A-4587-16T4
Hathaway, 222 N.J. 453, 468-69 (2015); State v. Keaton, 222 N.J.
438, 452 (2015). Under the community-caretaking doctrine,
"[c]ourts have allowed warrantless searches . . . when police
officers have acted not in their law enforcement or criminal
investigatory role, but rather in a community[-]caretaking
function." State v. Bogan, 200 N.J. 61, 73 (2009). "In performing
these tasks, typically, there is not time to acquire a warrant
when emergent circumstances arise and an immediate search is
required to preserve life or property." Edmonds, 211 N.J. at 141.
Our Supreme Court has held, however, that the community-caretaking
doctrine prohibits "the warrantless entry into or search of a home
in the absence of some form of exigent circumstances" or
"objectively reasonable emergency." State v. Vargas, 213 N.J.
301, 305, 321 (2013).
The Court also made clear that "[p]olice officers serving in
a community-caretaking role are empowered to make a warrantless
entry into a home under the emergency-aid exception to the warrant
requirement." Id. at 323. The emergency-aid doctrine, first
enunciated in Frankel, and later modified in Edmonds, "is derived
from the commonsense understanding that exigent circumstances may
require public safety officials, such as the police, . . . to
enter a dwelling without a warrant for the purpose of protecting
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or preserving life, or preventing serious injury." Hathaway, 222
N.J. at 469 (emphasis omitted) (quoting Frankel, 179 N.J. at 598).
Courts apply a "two-prong test" that considers "the totality
of the circumstances" to determine whether the emergency-aid
doctrine justifies a warrantless search of a home. Id. at 470,
472. To that end, the State must show that "(1) the officer had
an objectively reasonable basis to believe that an emergency
require[d] that he provide immediate assistance to protect or
preserve life, or to prevent serious injury and (2) there was a
reasonable nexus between the emergency and the area or places to
be searched." Ibid. (alteration in original) (quoting Edmonds,
211 N.J. at 132). The doctrine does not require "certitude" of
danger but only reasonable belief that immediate action is
required. Ibid. (quoting Frankel, 179 N.J. at 599).
Reasonableness turns on the circumstances at the time and "does
not depend on whether it is later determined that the danger
actually existed." Ibid.
If an emergency exists, "[t]he emergency-aid doctrine,
particularly when applied to the entry of a home, must be 'limited
to the reasons and objectives that prompted' the need for immediate
action." Edmonds, 211 N.J. at 134 (quoting Frankel, 179 N.J. at
599). "Therefore, police officers looking for an injured person
may not extend their search to small compartments such as 'drawers,
14 A-4587-16T4
cupboards, or wastepaper baskets." Hathaway, 222 N.J. at 470)
(quoting Frankel, 179 N.J. at 599). "If, however, contraband is
'observed in plain view by a public safety official who is lawfully
on the premises and is not exceeding the scope of the search,'
that evidence will be admissible." Ibid. (quoting Frankel, 179
N.J. at 599-600). "When the exigency that justifies immediate
action dissipates, the rationale for searching without a warrant
is no longer present." Edmonds, 211 N.J. at 134.
Here, we conclude that the troopers had an objectively
reasonable basis to believe that immediate assistance was required
to protect a life or prevent serious injury, and there was a nexus
between the emergency and the area searched. Moreover, the
troopers did not impermissibly expand their search to any other
part of the residence. Although the troopers had removed the
juvenile to an adjoining room when Sullivan observed the gun in
plain view, his actions were reasonable for officer safety and the
safety of the other occupants in the residence, including Z.M.,
who, given his mental health issues and threat to retaliate, may
have harmed himself or another with the gun. See Gonzales, 227
N.J. at 82 (holding that "[p]rovided . . . a police officer is
lawfully in the viewing area and the nature of the evidence is
immediately apparent . . . , the evidence may be seized" under the
plain-view warrant exception). We are therefore satisfied that
15 A-4587-16T4
the motion judge correctly applied the emergency-aid doctrine to
uphold this search and seizure3 and affirm substantially for the
reasons expressed by Judge Gaus in his oral opinion delivered from
the bench on May 15, 2017.
Affirmed.
3
In light of our holding, we need not address Judge Gaus'
application of the community-caretaking doctrine.
16 A-4587-16T4