STATE OF NEW JERSEY VS. RASHEED M. PHILLIPS (18-01-0074, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3953-18T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RASHEED M. PHILLIPS,
Defendant-Respondent.
______________________________
Argued on September 10, 2019 – Decided November 18, 2019
Before Judges Ostrer and Susswein.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Atlantic County,
Indictment No. 18-01-0074.
John Joseph Santoliquido, Assistant Prosecutor, argued
the cause for appellant (Damon G. Tyner, Atlantic
County Prosecutor, attorney for appellant; John Joseph
Santoliquido, of counsel and on the briefs).
Tamar Yael Lerer, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney for respondent; Tamar Yael
Lerer, of counsel and on the briefs).
PER CURIAM
We granted the State's motion for leave to appeal from an order of the Law
Division, suppressing heroin seized by police from a hotel room defendant was
in at the time of his arrest. The trial court held that the police unlawfully entered
the hotel room to arrest defendant for a disorderly persons offense committed in
their presence. When defendant opened the door, the officers detected the strong
smell of burnt marijuana and saw a marijuana cigar on the bed. The trial court
only partly granted defendant's motion to suppress, however. Although the court
suppressed the heroin police observed only after they entered the room, it also
ruled that the marijuana cigar police observed while they were still in the
hallway was admissible under the plain view doctrine. Defendant did not seek
leave to appeal the court's decision to admit the marijuana cigar, nor has
defendant cross-appealed that ruling in the matter before us.
We believe the trial judge's two rulings—suppressing the heroin and
admitting the marijuana cigar—are incongruous. If there was sufficient
exigency to justify the police entry to retrieve the marijuana cigar from the bed,
as the judge appears to have found, then the officers would have been
legitimately present in the hotel room for that purpose when they observed the
heroin in an open suitcase next to the bed. We therefore remand the matter for
A-3953-18T4
2
the trial court to clarify and amplify its ruling with respect to the exigent
circumstances required to enter the room to secure the marijuana cigar. R. 1:7-
4(a).
I.
Defendant was charged by indictment with twelve drug offenses,
including two counts of possession of a controlled dangerous substance with
intent to distribute and two counts of conspiracy to distribute a controlled
dangerous substance. All charges against defendant are based on the drugs
seized in the hotel room.
At the suppression hearing, the State presented testimony from two
Atlantic City police officers, both of whom the trial court found to be credible.
The salient facts derived from the officers' testimony follow. Police received
complaints about drug dealing occurring at the Rodeway Inn. The hotel manager
told police that there had been heavy foot traffic in and out of Room 107. Police
conducted surveillance and observed a male leave that room and walk to the
corner of Pacific Avenue, where he met with a female. Police observed what
they believed to be a hand-to-hand drug transaction. Police arrested the female
and found an illicit drug in her possession. Police then stopped the male and
A-3953-18T4
3
arrested him for drug distribution. He stated to police that he was staying in
Room 107 at the hotel.
Two police detectives went to Room 107 to continue the investigation.
The detectives knocked on the door to the hotel room and announced their
identity as police officers. Defendant opened the door about "80 percent"—
enough to allow the officers to see into the room. The officers immediately
detected the "extremely overpowering smell of burnt marijuana." While still in
the hallway outside the room, the officers observed what appeared to be a hand-
rolled marijuana cigar on the edge of the bed.
Detective Berardis testified that the room was "extremely small" and that
the door almost hit the bed on which the marijuana cigar rested. Despite the
room's small size, the detective could not tell whether any other person might
have been in the bathroom. The detective testified: "I mean management was
saying that people were coming inside and out all throughout the night. So yes,
there was a possibility there could have been more than one person inside."
Detective Berardis entered the room to place defendant under arrest for
marijuana possession and use. At the moment of the police entry, defendant was
still inside the room in the doorway. Detective Berardis explained that, "I can't
A-3953-18T4
4
just extend my arms from outside the room and place him into custody. I have
to actually step into the room."
As soon as he crossed the threshold into the room, the detective observed
a large suitcase in between the bed and the wall adjacent to the door. The
suitcase was open. The officer observed a sandwich bag filled with rice, which
the officer knew from training and experience drug dealers use to preserve
heroin. He also observed multiple bags of suspected heroin and a digital scale.
After making the arrest, the detectives secured the marijuana cigar, the bag of
rice, the bags of suspected heroin, and the scale. They did not search the room
for further evidence.
Although the trial judge found the police witnesses to be credible, he did
not agree with Detective Berardis that it was necessary for him to enter the hotel
room to effect the arrest. The judge reasoned that the officers could have
directed defendant to step out of the room to complete the arrest process.
The judge's oral opinion only briefly touched on the question of exigency
and did so in the context of the reasonableness of the police decision to arrest
defendant inside the hotel room rather than in the hallway. Specifically, the
judge stated,
A-3953-18T4
5
Cleveland,1 Alvarez,2 and even the unpublished case
that the State submits, Lawton,3 all speak to exigencies,
destruction of evidence, and officer safety. None of
these were present in this particular case, and officer –
Detective Berardis could have very well, in my view,
when he didn't ask Mr. Phillips to step out or simply
cuff him in the threshold when he entered into the room
he was not privileged to do so without a warrant absent
some concern about destruction of evidence, which I
didn't hear, or concern about officer safety, which I
didn't hear.
The judge thereupon granted the defense motion "in part," ruling that "[t]he cigar
on the bed is in. Everything else [the heroin and paraphernalia] is out."
II.
We begin our legal analysis by noting the standard of review we apply.
We defer to the factual findings made by the trial judge if they are sustained by
sufficient credible evidence. State v. Harris, 457 N.J. Super. 34, 43 (App. Div.
2018) (citing State v. Sencion, 454 N.J. Super. 25, 31 (App. Div. 2018)). We
owe no such deference to conclusions of law, which we review de novo. Id. at
44 (citing Sencion, 454 N.J. Super. at 31–32).
1
State v. Cleveland, 371 N.J. Super. 286 (App. Div. 2004).
2
State v. Alvarez, 238 N.J. Super. 560 (App Div. 1990).
3
State v. Lawton, A-3946-14T2 (App. Div. Jan. 13, 2017). We do not rely on
this unpublished opinion in making our decision. See R. 1:36-3.
A-3953-18T4
6
To sharpen the focus of our analysis, it is appropriate to identify what is
not at issue in this interlocutory appeal. Defendant does not dispute that it was
lawful for police to go to the hotel room without a warrant and knock on the
door as part of their ongoing investigation. See generally State v. Hutchins, 116
N.J. 457 (1989) (discussing whether officers' warrantless entry into a home was
impermissible but not disputing that knocking on the door during an
investigation was allowed). Nor does defendant dispute that, while still outside
the threshold of the hotel room, police had probable cause to believe that
someone was smoking marijuana inside the room. Defendant does not dispute
police also had probable cause to believe that the cigar-shaped object lying on
the edge of the bed was contraband.
Defendant acknowledges, in other words, that the "immediately apparent"
prong of the plain view doctrine was satisfied with respect to the marijuana
cigar. See Texas v. Brown, 460 U.S. 730, 737 (1983) ("Finally, it must be
'immediately apparent' to the police that the items they observe may be evidence
of a crime, contraband, or otherwise subject to seizure." (plurality opinion)
(quoting Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971))). Nor is it
disputed that once Detective Berardis entered the room, he immediately
recognized the heroin in the open suitcase. The gist of defendant's argument is
A-3953-18T4
7
that the detectives were not lawfully present inside the hotel room at the moment
that the heroin came into their view.
III.
The trial correctly determined—and both parties agree—that the critical
question in this case is whether police were justified in entering the hotel room
under the Fourth Amendment and Article I, Paragraph 7 of the New Jersey
Constitution. Given the small size of the room and the close proximity of the
open suitcase to the bed and door, it is clear that if the officers were authorized
to enter the room for any lawful purpose, the plain view doctrine would apply
to the heroin. In that event, the officers would have been "legitimately on the
premises" at the same moment that it was "immediately apparent" that the open
suitcase contained an illicit controlled dangerous substance.
The question thus turns to whether any recognized warrant exception
applies to justify the police entry. The trial judge properly rejected the State's
argument that the search-incident-to-arrest exception justified entry. The
critical issue is not whether the suitcase fell within the arrestee's wingspan, that
is, the area within which an arrested person could reach for a weapon or to
conceal or destroy evidence. See Chimel v. California, 395 U.S. 752, 763 (1969)
(explaining that when an officer makes an arrest it is reasonable for the officer
A-3953-18T4
8
to search both the arrestee and the area "within his immediate control").
Application of that doctrine in these circumstances would beg the question of
whether police were authorized to cross the threshold of the room to make the
arrest.
The trial judge also properly rejected the State's argument that entry was
authorized by the statute that authorizes police to arrest a person for committing
a disorderly persons offense in their presence, N.J.S.A. 40A:14-152. That
statute alone cannot authorize police entry into a constitutionally protected
premises.4 Rather, entry must be authorized by a warrant or fall within a
recognized exception to the warrant requirement, such as consent (which is not
applicable here) or exigent circumstances.
IV.
4
We recognize that in certain circumstances, the privacy expectations in a hotel
room may differ from those in a home. Alvarez, 238 N.J. Super. at 571.
Recently, the New Jersey Supreme Court made clear in State v. Shaw that,
"[h]otel guests have a reasonable expectation of privacy in their rooms akin to
that held by property owners and tenants." 237 N.J. 588, 610 (2019). For
purposes of this interlocutory appeal, we deem the hotel room to be a
constitutionally protected premises that police were not privileged to enter
without an arrest or search warrant, defendant's consent, or a recognized
exception to the warrant requirement (in this case, exigent circumstances).
A-3953-18T4
9
By suppressing the heroin but admitting the marijuana cigar, the trial court
seems to have made inconsistent rulings with respect to the officers' authority
to go into the hotel room based on exigent circumstances. The officers' entry
into the hotel room was either lawful or not, whether their purpose for entering
was to arrest defendant, to secure the marijuana cigar on the bed, or to
accomplish both enforcement objectives. 5
Under the objective test of reasonableness that courts use to evaluate the
constitutionality of police conduct under both the Fourth Amendment and
Article I, Paragraph 7 of the State Constitution, it does not matter that the
detectives' stated purpose for entering the room was to make the arrest rather
than to seize the contraband observed from outside the room. See State v. Malik,
221 N.J. Super. 114, 120 (App. Div. 1987) ("[T]he fact that the arresting officer
perhaps did not harbor the state of mind hypothecated by the reasons which
provide the legal justification for his conduct does not vitiate the constitutional
efficacy of the action taken."). If Detective Berardis had lawful authority to
enter the room to secure the marijuana cigar, he would be legitimately present
5
Although Detective Berardis expressly stated at the suppression hearing that
he entered the room for the purpose of taking defendant into custody, we think
it reasonable to infer from his testimony that he also had the purpose to retrieve
the marijuana cigar, which is exactly what he did after handcuffing defendant.
A-3953-18T4
10
inside the room for purposes of applying the plain view doctrine to the openly
exposed contraband he observed while inside the room. That would be true even
if Detective Berardis was not authorized to enter based solely on the State's
arrest argument.
By denying defendant's motion to suppress the marijuana cigar under the
plain view doctrine it appears the trial court held that entry into the room was
lawful to effectuate the seizure of the cigar.6 Courts have long emphasized that
"plain view alone is never enough to justify the warrantless seizure of evidence.
. . . [N]o amount of probable cause can justify a warrantless search or seizure
absent 'exigent circumstances.'" Coolidge, 403 U.S. at 468. Rather, as Illinois
v. Andreas made clear, "[t]he plain view doctrine authorizes seizure of illegal or
evidentiary items visible to a police officer whose access to the object has some
prior Fourth Amendment justification." 463 U.S. 765, 771 (1983) (citing
Brown, 460 U.S. at 737); see also Horton v. California, 496 U.S. 128, 137 (1990)
(clarifying that for the plain view doctrine to apply, "not only must the officer
be lawfully located in a place from which the object can be plainly seen, but he
or she must also have a lawful right of access to the object itself"). Therefore,
6
The trial court noted that "[t]he plain view insofar as the marijuana cigar is
concerned, is easy. . . ." We interpret this to mean that the judge was satisfied
that the seizure of the cigar was lawful.
A-3953-18T4
11
as the plain view doctrine requires a separate exception to the warrant
requirement to justify police entry into the protected area, the judge's ruling on
the marijuana cigar suggests the judge also found there to be sufficient exigency
to justify crossing the threshold of the room to gain access to the marijuana cigar
inside.
The point simply is that the plain view doctrine by itself could not justify
the police entry to retrieve the marijuana cigar. Rather, to gain access to the
marijuana cigar, the State must prove another warrant exception. In view of this
principle of constitutional law, it would seem that the trial court concluded that
the exigencies facing the police justified the seizure of the marijuana. However,
the trial court did not explicitly indicate its reliance on the exigent-
circumstances exception, nor did it make clear findings on the exigencies
presented to the police when they viewed the marijuana cigar on defendant's
bed. Therefore, our concern at this point focuses on the tacit nature of the trial
court's conclusion with respect to the exigency needed to enter the hotel room
to retrieve the marijuana.
V.
Unlike in Alvarez, where the trial judge was not available to hear the
matter on remand, this case presents no need for us to exercise original
A-3953-18T4
12
jurisdiction to reconcile the trial judge's rulings to suppress the heroin but not
the marijuana cigar. 238 N.J. Super. at 563, 569. The trial judge is better
situated than we are to undertake the fact-sensitive inquiry into the exigencies
of the situation presented to the police with respect to the seizure of the
marijuana cigar. Accordingly, it is proper for the trial court in the first instance
to make a detailed finding on whether exigent circumstances made it objectively
reasonable for the police to enter the hotel room to retrieve the marijuana cigar.
Although we leave it to the trial court to determine whether it was
objectively reasonable for police to retrieve the marijuana cigar without a
warrant, to guide the trial court on remand, we next review and summarize
several cases that explain the relevant factors to determine whether a particular
situation is sufficiently exigent to justify an intrusion upon Fourth Amendment
privacy rights. As we noted in Alvarez, while these so-called exigency factors
"can be articulated with disarming ease, their application to a concrete factual
pattern is not without difficulty." 238 N.J. Super. at 568. The test is "highly
fact sensitive." Ibid. (quoting State v. Lewis, 116 N.J. 477, 487 (1989)). We
further cautioned that, "[i]n making these judgments, our review" of the police
conduct "must be in a commonsense and realistic fashion." Id. at 569.
A-3953-18T4
13
The New Jersey Supreme Court's decision in State v. Walker is
particularly instructive in describing the myriad of exigency factors that may
arise. 213 N.J. 281 (2013). In that case, police officers observed the defendant
"smoking a marijuana cigarette during a brief interaction with him, while the
apartment door was open." Id. at 284. The Court reiterated the well-established
principle that a warrantless arrest in an individual's home is presumptively
unreasonable and emphasized that the warrant requirement is strictly applied to
physical entry into the home because the primary goal of the Fourth Amendment
and Article I, Paragraph 7 of the State Constitution is to protect individuals from
unreasonable home intrusions. Id. at 289. The Court thus required a showing
of exigent circumstances to justify a warrantless home arrest. Id. at 291. The
Court further observed that "the application of the doctrine of exigent
circumstances demands a fact-sensitive, objective analysis." Id. at 291–92
(quoting State v. DeLuca, 168 N.J. 626, 632 (2001)).
To assist in that analytical process, the Court identified some of the many
possible exigency factors that might exist, including
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
A-3953-18T4
14
armed and dangerous; and the strength or weakness of
the underlying probable cause determination.
[Id. at 292 (quoting DeLuca, 168 N.J. at 632–33).]
The Court added that "[t]he possible destruction of evidence is of great concern
when dealing with controlled dangerous substances because 'drugs may be easily
destroyed by flushing them down a toilet or rinsing them down a drain.'" Ibid.
(quoting Kentucky v. King, 563 U.S. 452, 461 (2011)).
Turning to the particular circumstances in the case before it, the Court
deemed it to be a "significant event" that defendant appeared at the door smoking
a marijuana cigarette. Id. at 295–96. "Defendant was standing inside his
apartment." Ibid. Nonetheless, defendant and the officers were within inches
of each other, leading the Court to conclude that, "[c]learly, defendant must have
been aware that the officers knew that he was committing an offense. Such
observations gave rise to probable cause and authorized the officers to arrest
defendant for the disorderly persons offense." Ibid.
This first "significant event" is similar to the facts in the present case given
the overpowering smell of burnt marijuana emanating from a small hotel room.
It bears noting, however, that in Walker, there was a "second significant event"
attributed to the defendant's reaction to the police presence. Id. at 296.
Specifically, Walker discarded the marijuana cigarette, retreated into his
A-3953-18T4
15
apartment, and attempted to close the door. Ibid. The defendant's evasive
conduct, the Court noted, compelled the police to act to prevent defendant from
disposing of the marijuana cigarette or eluding the officers. Ibid.
Considering those circumstances, the Court found the officers' warrantless
entry was objectively reasonable, "justified pursuant to the exigent
circumstances exception to the warrant requirement." Id. at 298. In reaching
this conclusion, the Court emphasized that this exception "did not authorize a
broad search of the apartment, but justified a limited entry necessary to arrest
defendant for the disorderly persons offense and to retrieve the marijuana
cigarette." Ibid. (emphasis added).
We recognize that the defendant's flight into the room made the situatio n
in Walker more urgent than what occurred in the present case. However, other
New Jersey precedents have sustained police entry into a home or hotel room in
circumstances where occupants did not engage in such provocative actions in
response to police appearing at their door.
In State v. Stanton, police responded to a telephone call from an
anonymous informant reporting that drug dealing was occurring in a specific
room in a motel in Asbury Park. 265 N.J. Super. 383, 384 (App. Div. 1993).
Police went to the room, knocked on the door, and identified themselves as
A-3953-18T4
16
police officers. Id. at 385. One of the occupants pulled back the drapes to the
window, and from the vantage point of the hallway, an officer observed a plastic
bag containing a white powdery substance on top of a microwave oven in his
direct line of sight. Ibid. The officer recognized the substance as cocaine and
ordered the other officers to enter the room and seize the drugs. Ibid. Once
inside, the police found sixty bags containing cocaine, two handguns, a box of
ammunition, and a large knife. Ibid.
The trial court suppressed the handgun and illicit drugs, holding that the
officers' warrantless entry was unlawful. Ibid. We granted the State's motion
for leave to appeal and reversed. Id. at 384. We held that although the exigent
circumstances that justified entry into the motel room were "police-created,"
they arose as a result of reasonable police investigative conduct. Id. at 386.
Implicit in that holding is that the circumstances were sufficiently exigent to
justify the entry.
We reached a similar result in Alvarez. In that case, police received a
report of drug activity occurring on the fourth floor of a hotel in Atlantic City.
238 N.J. Super. at 563. When police went to the hotel to investigate, the desk
clerk advised them that there had been numerous telephone calls and "foot
traffic" to and from Room 402—the only room occupied on the fourth floor.
A-3953-18T4
17
Ibid. Four officers went to the room. Ibid. After knocking on the door, one of
the officers, in a falsetto voice, identified himself as the maid. Ibid. When the
door to the room was opened, police observed narcotics and drug paraphernalia.
Ibid. They then entered the room, seized the contraband, and arrested the
occupants. Ibid.
The trial judge suppressed the evidence. Id. at 564. We granted the State's
motion for leave to appeal and reversed. Id. at 572. We synthesized the
exigency factors discussed in earlier precedents and concluded that the State
"met its heavy burden of establishing that exigent circumstances existed and that
they were not impermissibly created by the police." Id. at 568–69.
VI.
As noted, we leave it to the trial court to undertake an initial assessment
of the exigencies presented to the police with respect to their lawful authority to
retrieve the marijuana cigar without first obtaining a search warrant. The court
in assessing exigency may consider (1) the limited degree of physical intrusion
into the room; (2) the seriousness of the offense for which they had probable
cause; (3) the drug distribution transaction involving a room occupant that
A-3953-18T4
18
occurred nearby shortly before the entry; 7 (4) the report of heavy foot traffic into
the room; (5) the possibility that someone else might have been in the bathroom;
(6) the inherent destructibility of the marijuana cigar; and (7) any other
circumstance the court deems relevant to the reasonableness of the police entry
to retrieve the marijuana cigar. If the trial judge on remand reaffirms his
decision that the entry to seize the marijuana cigar was objectively reasonable
under the Fourth Amendment and Article I, Paragraph 7 of the State
Constitution, then the detectives would have been legitimately inside the room
at the moment they observed the open suitcase next to the bed. In that event,
the heroin will be admissible under the plain view doctrine. 8
Remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
7
Although the observation of the marijuana cigar and smell of burnt marijuana
provided only probable cause for a disorderly persons offense, N.J.S.A. 2C:35 -
10(a)(4), for purposes of exigency analysis, the officers had a basis to believe
that Room 107 was associated with drug distribution activity.
8
Alternatively, if the court makes a finding that there was insufficient exigency,
we leave it up to the trial court whether to reverse course and entertain a motion
to reconsider the marijuana's admissibility. See R. 4:49-2.
A-3953-18T4
19