STATE OF NEW JERSEY VS. VASILIO KOUTSOGIANNISÂ (13-07-1902, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-5772-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VASILIO KOUTSOGIANNIS, a/k/a
VASILIO KOUTSGIANNIS,
Defendant-Appellant.
Submitted May 10, 2017 – Decided June 8, 2017
Before Judges Simonelli, Carroll and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Indictment
No. 13-07-1902.
Joseph E. Krakora, Public Defender, attorney
for appellant (David A. Gies, Designated
Counsel, on the briefs).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Chief Appellate Attorney, of counsel; William
Kyle Meighan, Senior Assistant Prosecutor, on
the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
In this appeal, defendant Vasilio Koutsogiannis challenges
the denial of his motion to suppress, as unconstitutional, his
arrest, his custodial statement, and evidence seized from his
parents' home where he was temporarily residing. We affirm,
substantially for the reasons expressed in Judge Francis R.
Hodgson, Jr.'s thorough written opinion of September 24, 2014.
I.
On March 2, 2013, T.M.1 called 9-1-1 to report he was robbed
at gunpoint. Sergeant Dennis Jarin of the Ocean Township Police
Department (OTPD) responded to the scene at approximately 5:42
p.m. T.M. told Jarin the robbery occurred while he was walking
and a passing car stopped and asked him for directions. T.M.
reported that $500 and a butane lighter were taken from him at
gunpoint by the vehicle's two occupants. T.M. supplied Jarin with
a description and license plate number of the vehicle.
Investigation revealed the car was registered to defendant's
sister, Katerina Koutsogiannis (Katerina),2 who resided on Ross
1
We use initials for the victim to protect his privacy interests.
2
Because defendant, his co-defendant Katerina, and other family
members who testified at the suppression hearing share a common
surname, we refer to them by their first names in this opinion for
clarity and ease of reference.
2 A-5772-14T4
Court in Manahawkin. The description of the vehicle was broadcast
to surrounding police agencies in an attempt to locate it.
T.M. was transported to OTPD headquarters where he was further
interviewed by Sergeant Michael Rogalski. T.M. initially reported
that the female passenger reached out of the car with a rope, tied
him around the neck, and dragged him into the car. The male driver
then shoved a handgun in his face, and the two stole $500 from him
before driving off.
Under further questioning by Rogalski, T.M. changed his story
and admitted the robbery occurred during his sale of thirty-seven
bags of heroin to the two suspects. T.M. now stated he entered
the vehicle and met with a male driver with a goatee known as
"Vic" and a woman who sat in the back seat. The three began
discussing the drug transaction when suddenly the woman wrapped
something around his neck and the driver stuck a handgun in his
left cheek and demanded he empty his pockets. The pair allowed
T.M. to leave after he placed the heroin and his money on the
floor of the vehicle. T.M. explained that he called the police
because he feared for his safety and that of his family. During
this recorded interview, Rogalski noted redness to T.M.'s neck and
a mark on his left cheek, consistent with T.M.'s version of events.
3 A-5772-14T4
A short time later, officers from the Stafford Township Police
Department (STPD) located the subject vehicle on Kristine Avenue 3
in Manahawkin, one block east of the Ross Court address that
appeared on Katerina's registration. At around 6:15 p.m., STPD
Patrolman Robert Conforti, accompanied by his K-9 dog who was
trained to track the freshest odor, followed the fresh scent to
the Ross Court address to which the car was registered. Believing
the car's occupants were involved in the armed robbery and were
presently in the Ross Court home, Conforti and other officers took
positions around the outside.
STPD Lieutenant Herman Pharo, who was in charge of the
regional S.W.A.T. unit, was called and responded to the scene.
Pharo believed the home was occupied based on reports from other
officers that they observed movement and lights being turned on
and off inside. Pharo called the house phone and, although he
heard it ringing, no one answered. The phone was eventually
answered by Frank Koutsogiannis (Frank), the father of defendant
and Katerina. Frank owned the Ross Court home, and Pharo knew
Frank because he owned a local restaurant. Frank told Pharo he
was in Florida and his phone calls were being forwarded to him
there. Frank advised Pharo that defendant was staying in the
3
Kristine Avenue alternately appears as Christine Avenue in the
record.
4 A-5772-14T4
house, and that the only other person who had access to it was
Katerina. Pharo informed Frank that defendant and Katerina were
suspects in an armed robbery. According to Pharo, Frank then gave
permission for police to enter the home, and indicated he would
send his older daughter Sophia with a key.
Sophia arrived about fifteen minutes later. She testified
at the hearing: "My father called me, he was in Florida. He said
to go to . . . my parents' house, to let the police in, because
they were looking for [defendant and Katerina]." Although Sophia
claimed she had a key, she was met by Pharo who kept her away from
the house and, consequently, she did not use the key to enter.
The ensuing events are recounted in Judge Hodgson's written
opinion as follows:
Pharo continued his attempts to make
contact with the occupants of the house. He
walked to the front door and knocked and
identified himself as police and called out
to occupants with no response. Pharo walked
around the back of the house and then toward
the front again and knocked and called out as
he proceeded [but] no one answered. As he
continued his walk around the house the garage
door went up. As the officers began to enter
the garage, the door started to close. The
entering officers triggered the infrared
safety mechanism that stops the door from
closing when it is blocked and the door
reversed and continued to open. The officers
entered the garage and partially opened the
interior garage door leading from the garage
into the house. Officers called out for the
occupants and identified themselves as police,
5 A-5772-14T4
at this point not yet crossing the threshold
of this interior garage door. [Defendant]
came from inside the house to the interior
garage door with his hands up, presenting
himself to the officers, and was taken into
custody. Officers then entered the house
through the door from the attached garage and
continued to call out. [Katerina] was located
on the first floor at the top of the stairway
leading to the basement walking toward the
officers with her hands up. She complied with
police orders to come to them. She was then
taken into custody without incident. Both
[Katerina] and [defendant] were brought
outside, handcuffed, and taken away in police
cars. The police swept the house for other
occupants and then secured the residence while
they sought a search warrant. Sophia was
permitted into the house and told to wait
until the officers returned with a search
warrant. Police reported securing the
residence at about 8:03 p.m.
Defendant and Katerina were taken to police headquarters
where they were interviewed separately. Rogalski first read
Katerina her Miranda4 rights and presented her with the OTPD
standard rights form, which she signed. Katerina initially claimed
that defendant received a phone call from a friend to pick up
someone named Joey. When "Joey" entered the vehicle he appeared
beat up and stated someone had just tried to rob him. "Joey" then
"pull[ed] out a bunch of dope. Blue bags of heroin." Upon seeing
the drugs, Katerina and her brother ordered "Joey" out of the car.
4
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d
694 (1966).
6 A-5772-14T4
Katerina's initial version of events changed as her
questioning progressed until eventually it coincided more closely
with that of T.M. She revealed that recently she had again been
using heroin. She stated her brother took her along for a ride
when she told him she could not lend him any money. They then
went to pick up "Joey" and, when he entered the car, defendant
pulled out a gun, pushed it into "Joey's" neck, and announced it
was a robbery. After a break in the questioning during which
police spoke to defendant, Katerina admitted she used a scarf to
hold T.M. by the neck from the back seat of the car. She further
admitted that, upon arriving back at her parents' house, she and
defendant concocted her initial version that the victim entered
the car after having already been beaten. Katerina stated that
heroin, but no cash, was taken from the victim. She also said
defendant took the gun from the car and stashed it somewhere in
the garage of the home.
Defendant was interviewed next. He denied the robbery and
gun possession allegations after being read his Miranda rights.
Defendant told police, as Katerina initially did, that "Joey"
appeared roughed up when he entered the car and defendant ordered
him to leave after "Joey" "pull[ed] out about I don't know how
many bags [] of pot [and] maybe [thirty], [forty] bags of heroin."
When informed by police that Katerina stated otherwise, defendant
7 A-5772-14T4
claimed his sister was in "cohoots" with T.M., and would say
anything to avoid blame. Defendant advised that Katerina parked
the car on Kristine Drive because she was not allowed in her
parents' house. Defendant further stated he heard the police
knocking and that he cooperated with them by opening the garage
door and lying down. Rogalski testified that later, as Katerina
was brought into the patrol room where defendant was being held
in a cell, defendant told her, "I can't believe you ratted out
your own brother."
Sophia was allowed to remain in the kitchen and bathroom of
the residence while police obtained a warrant to search the home
and car. While using the bathroom, Sophia noticed the cabinet was
not closing properly. She attempted to close it and, in doing so,
found empty heroin packets and a needle, which she turned over to
the police. Following issuance of the search warrant, police
recovered a multicolored scarf from the car, and heroin and a
handgun from the garage of the home.
In July 2013, while T.M. was incarcerated, he recanted his
prior version of events. Instead, T.M. told a defense investigator
he was not the victim of a robbery, there was no gun, and no scarf
had been placed around his neck.
Later that month, defendant and Katerina were jointly charged
in Ocean County Indictment No. 13-07-1902 with first-degree
8 A-5772-14T4
robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count
two); third-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5b (count three); and third-degree possession of a
controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count
five). Defendant was charged separately with fourth-degree
aggravated assault, N.J.S.A. 2C:12-1b(4) (count four); and second-
degree possession of a firearm by a convicted person, N.J.S.A.
2C:39-7b (count six). Katerina was separately charged in count
seven with second-degree possession of a firearm by a convicted
person, N.J.S.A. 2C:39-7b.
Defendant and Katerina moved to suppress their arrests, their
custodial statements, and the seized evidence. The trial court
denied the motions on September 22, 2014. On February 6, 2015,
pursuant to a negotiated plea agreement, defendant pled guilty to
an amended charge of second-degree robbery, and the State agreed
to dismiss the remaining charges in Indictment No. 13-07-1902.
Defendant also reserved the right to appeal the denial of his
suppression motion and certain other designated legal issues.5
5
Defendant also pled guilty to an unrelated third-degree
possession of CDS charge under Indictment No. 13-06-1400, for
which he received a concurrent four-year prison sentence.
9 A-5772-14T4
On May 15, 2015, defendant filed a pro se motion to withdraw
his plea, claiming he was not guilty of the charges in the
indictment, and that his plea was coerced and not knowingly and
intelligently entered. Defendant subsequently withdrew the motion
and proceeded to sentencing on July 31, 2015. The court imposed
a five-year prison term with an eighty-five-percent period of
parole ineligibility pursuant to the No Early Release Act, N.J.S.A.
2C:43-7.2. This appeal followed.
II.
In his counseled brief, defendant raises the following issues
for our consideration:
POINT ONE
[] DEFENDANT'S WARRANTLESS ARREST WAS
UNCONSTITUTIONAL WHERE THE POLICE OFFICERS
ENTERED HIS HOME WITHOUT CONSENT OR THE
PRESENCE OF EXIGENT CIRCUMSTANCES.
POINT TWO
SOPHIA'S CONDUCT WHICH WAS CONTROLLED BY THE
POLICE OFFICERS WHO ALLOWED HER TO ENTER THE
HOME AFTER IT WAS SECURED AMOUNTED TO JOINT
PARTICIPATION SUFFICIENT TO BRING THE PRIVATE
PARTY'S SEIZURE OF THE EMPTY WAX FOLDS WITHIN
THE PURVIEW OF THE EXCLUSIONARY RULE.
POINT THREE
THE FACTS AND CIRCUMSTANCES TO SUPPORT A WELL-
GROUNDED SUSPICION THAT A CRIME OCCURRED IN
ORDER TO ISSUE A SEARCH WARRANT OF []
DEFENDANT'S HOME IS ABSENT WHERE THE POLICE
OFFICER RELIED ON INFORMATION TOLD TO HIM BY
10 A-5772-14T4
ANOTHER OFFICER WHICH RESTED ON FACTS RELATED
BY A KNOWN UNRELIABLE SOURCE WHO LATER
RECANTED.
POINT FOUR
LACKING THE EXISTENCE OF A WELL-GROUNDED
SUSPICION THAT [] DEFENDANT WAS KATERINA'S
PARTNER IN THE ALLEGED ROBBERY, [] DEFENDANT'S
CUSTODIAL STATEMENT SHOULD BE SUPPRESSED WHERE
IT WAS OBTAINED AFTER AN ILLEGAL ARREST.
POINT FIVE
KATERINA'S CUSTODIAL STATEMENTS SHOULD BE
SUPPRESSED WHERE HER RESPONSES SHOW THAT HER
SUBMISSION TO THE INTERROGATION WAS NOT
VOLUNTARY.
The following additional points are raised in defendant's pro
se supplemental brief:
POINT ONE
[THE] COURT ERRED IN FINDING SUFFICIENT
PROBABLE CAUSE EXISTED TO JUSTIFY THE
WAR[R]ANTLESS [ARREST] OF DEFENDANT AND
CODEFENDANT AT [THE] SUPPRESSION HEARING.
POINT TWO
NO VALID EXCEPTIONS TO THE WARRANT REQUIREMENT
EXISTED TO JUSTIFY THE ENTRY INTO
[DEFENDANT'S] HOME [] OR HIS SUBSEQUENT
ARREST.
POINT THREE
STATEMENTS OBTAINED BY [THE] O.T.P.D. WERE THE
PRODUCT OF AN UNLAWFUL ARREST AND JUDGE
HODGSON ERRED IN NOT SUPPRESSING THEM.
11 A-5772-14T4
POINT FOUR
THE PROTECTIVE SWEEP OF [DEFENDANT'S] HOME WAS
UNLAWFUL UNDER THE [FOURTH] AMENDMENT [TO THE
UNITED STATES CONSTITUTION] AND JUDGE HODGSON
ERRED IN FINDING IT TO BE REASONABLE.
POINT FIVE
THE STATE[']S CONDUCT IN INSTIGATING FALSE AND
FRAUDULENT AND BELATED POLICE REPORTS AND
TESTIMONY AT [THE] SUPPRESSION HEARING
VIOLATED [DEFENDANT'S FOURTEENTH] AMENDMENT
DUE PROCESS RIGHTS AND PREJUDICED THE
PROCEEDINGS. JUDGE HODGSON ERRED IN ADMITTING
THEM.
POINT SIX
[DEFENDANT'S] GUILTY PLEA IS INVALID AND MUST
BE VACATED.
POINT SEVEN
VINDICTIVE, MALICIOUS, AND SELECTIVE
PROSECUTION [] PREJUDICED DEFENDANT[']S
JUDICIAL PROCEEDINGS AND SUBSEQUENT PLEA
AGREEMENT.
POINT EIGHT
[THE] PROSECUTOR FAILED TO PRESENT EXCULPATORY
EVIDENCE TO [THE] GRAND JURY [] NEGAT[ING]
DEFENDANT[']S GUILT THUS REQUIRING DISMISSAL
OF IND. NO: 13-07-1902.
We consolidate defendant's arguments in the discussion that
follows.
III.
A.
12 A-5772-14T4
We first address defendant's contention that the police
lacked probable cause to arrest him. In his written opinion,
Judge Hodgson began by noting that the "threshold issue to be
addressed [] is whether the police had probable cause to arrest
defendant[]." The judge found probable cause for the arrest,
reasoning:
In the instant case, at the time of their
entry into the residence at Ross Court, police
were acting on a report from an identified
citizen who reported being robbed at gunpoint
first by making a call to 9-1-1 and then
providing statements to [O]fficer Jarin, the
responding officer[,] and [D]etective
Rogalski. The responding Stafford officers
were entitled to rely on the underlying police
work of other officers who were investigating
the crime; information possessed by the 9-1-1
dispatcher as well as [O]fficers Jarin and
Rogalski is properly imputed to the responding
officers. See United States v. Robinson, 535
F.2d 1298, 1299 (9th Cir. 1976); United States
v. Hensley, 469 U.S. 221, 230-31[, 105 S. Ct.
675, 681-82, 83 L. Ed. 2d 604, 613-14]
(1985); Whiteley v. Warden of Wyo. State
Penitentiary, 401 U.S. 560, 568[, 91 S. Ct.
1031, 1037, 28 L. Ed. 2d 306, 313] (1971).
See also, State v. Crawley, 187 N.J. 440, 457,
cert. denied, 549 U.S. 1078[, 127 S. Ct.
740, 166 L. Ed. 2d 563] (2006); State v.
Williams, 404 N.J. Super. 147, 170-71 (App.
Div. 2008). . . . [T.M.] was able to identify
the suspects by providing: the make and
license plate number of the car; a description
of the occupants; and a detailed description
of the gun. Corroborating his report to
police, [T.M.] had injuries consistent with
his statement: red marks on his cheek and
neck. In addition, police located the car on
an adjacent street to the Koutsogiannis
13 A-5772-14T4
residence and were able to track the occupants
to the house. The fact that the subject car
was parked on an adjacent street to the
address of the registered owner, and that a
K-9 tracked to that residence raises
additional support for the proposition that
criminal activity was afoot. This apparent
attempt at disguising their location and
whereabouts demonstrates a consciousness of
guilt and supports the conclusion that the
occupants were involved in criminal activity
and attempting to thwart law enforcement.
This suspicion is bolstered by the fact that
although movement was detected in the
residence, no one answered the phone calls by
[Lt.] Pharo or the officers knocking on the
front door. Finally, the identification was
corroborated by Frank identifying the
occupants as [defendant] and Katerina,
matching the description given by [T.M.].
Based on the foregoing, I am satisfied that
under the totality of the circumstances, the
information provided by the [victim] together
with the information learned by police through
their investigation was clearly sufficient to
establish probable cause to believe that
[defendant] and Katerina had robbed T.M. at
gun point and were located in the residence
at Ross Court.
Defendant disagrees and asserts that the police did not have
probable cause to arrest him. "Probable cause exists if the facts
and circumstances known to the officer warrant a prudent man in
believing that the offense has been committed." State v.
Novembrino, 105 N.J. 95, 106 (1987) (quoting Henry v. United
States, 361 U.S. 98, 100-02, 80 S. Ct. 168, 170-71, 4 L. Ed. 2d
134, 137-38 (1959)). Furthermore, "[w]hen determining whether
probable cause exists, courts must consider the totality of the
14 A-5772-14T4
circumstances[.]" Schneider v. Simonini, 163 N.J. 336, 361 (2000)
(citing Illinois v. Gates, 462 U.S. 213, 230-31, 238, 103 S. Ct.
2317, 2328, 2332, 76 L. Ed. 2d 527, 543-44 (1983); Novembrino,
supra, 105 N.J. at 122), cert. denied, 531 U.S. 1146, 121 S. Ct.
1083, 148 L. Ed. 2d 959 (2001).
Our Supreme Court has noted that an ordinary citizen reporting
crime to the police is not viewed with suspicion. See State v.
Amelio, 197 N.J. 207, 212 (2008), cert. denied, 556 U.S. 1237, 129
S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). "There is an assumption
grounded in common experience that such a person is motivated by
factors that are consistent with law enforcement goals." State
v. Davis, 104 N.J. 490, 506 (1986).
Here, the police received a report from an identified citizen,
T.M., regarding criminal activity at a specific location. The
information T.M. provided was immediately corroborated by Sgt.
Rogalski's observation of marks on T.M.'s face and neck that were
consistent with T.M.'s report that he was the victim of an armed
robbery. T.M. provided a description of the male and female
suspects and the vehicle involved, including its license plate
number. Viewing the totality of the circumstances, we agree with
Judge Hodgson that the information provided by T.M., along with
that developed through further police investigation, was
sufficient to establish probable cause to believe that defendant
15 A-5772-14T4
and Katerina robbed T.M. at gun point and were located in the Ross
Court residence.
B.
Defendant argues that the warrantless entry of the residence
by police was unlawful. In addressing this issue, Judge Hodgson
observed that, while there was probable cause to arrest defendant,
"it is well settled that police could not lawfully enter the
residence without either an arrest or a search warrant or,
alternatively, a recognized exception to the warrant requirement
of the Fourth Amendment and our State Constitution, such as
consent." After reviewing the testimony and relevant case law,
the judge found "the police entry into the Ross Court residence
to arrest the defendants was lawful because [defendant] consented
to the entry." He elaborated:
It is noteworthy that [defendant's] initial
statement to Rogalski is quite different from
his testimony at the hearing. [Defendant]
testified during the suppression hearing that
he did not know the police were present. He
stated that he heard a boom when police kicked
in the door and he came out of the bathroom
where he was confronted by police who put a
gun in his face and forced him to lie face
down on the floor where he was handcuffed.
This testimony differs not only from the
version of the officers who testified during
the hearing, but also differs significantly
in key aspects from [defendant's] own
statement initially provided to Rogalski on
March 2, [2013], within hours of the event.
During his initial statement[,] [defendant]
16 A-5772-14T4
stated that he knew police were present and
he opened the garage door and [laid] down in
the hallway in order to be cooperative. This
initial statement by [defendant] to Rogalski
not only explains the opening of the garage
door, but is consistent with the testimony of
police: [Lt.] Pharo and [O]fficer Conforti
testified that police walked around the house,
knocking on the door and identifying
themselves while calling to the occupants to
make their presence known, and that the garage
opened and [defendant] came to the threshold
of the interior garage door with his hands up
and was then taken into custody. With regard
to the circumstances of the police entry into
the residence, I find [defendant's] initial
version given during his taped statement to
Rogalski to be the more credible version: it
was given close in time to the event, before
he had any opportunity to reflect and
fabricate; and is also corroborated by the
police testimony. Accordingly, I find that
[defendant] consented to the police entry,
that [defendant] heard police and opened the
garage door and came to the threshold of the
interior garage door with his hands up
surrendering to police and that he intended
to let the police into the residence.
In reviewing a motion to suppress, an appellate court defers
to the trial court's factual and credibility findings, "so long
as those findings are supported by sufficient credible evidence
in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting
State v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded
"because 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
17 A-5772-14T4
court cannot enjoy.'" State v. Reece, 222 N.J. 154, 166 (2015)
(quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "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 legal conclusions of a trial court
are reviewed de novo. Id. at 263. We must focus on "whether the
motion to suppress was properly decided based on the evidence
presented at that time." State v. Gibson, 318 N.J. Super. 1, 9
(App. Div. 1999) (quoting State v. Jordan, 115 N.J. Super. 73, 76
(App. Div.), cert. denied, 59 N.J. 293 (1971)).
Here, it is undisputed that the police walked around the
house, knocked on the door, and otherwise made their presence
known to the home's occupants. It is further undisputed that
neither the police nor Sophia activated the garage door opener.
We discern no error in the motion judge accepting as credible
defendant's initial recorded statement in which he indicated he
heard the police knock and responded by opening the garage door.
He then cooperated with the police entry into the home to
effectuate his arrest. On these facts, we find no basis to disturb
Judge Hodgson's well-reasoned determination that defendant was
validly arrested. "The Constitution protects against unreasonable
searches and seizures and against coerced waivers of
constitutional rights. It does not disallow voluntary cooperation
18 A-5772-14T4
with the police." State v. Domicz, 188 N.J. 285, 308-09 (2006).
Moreover, as the judge correctly recognized, this motion turned,
at least in part, on a credibility question. The judge found
defendant's testimony at the suppression hearing incredible and,
although not explicitly stating so, found the police testimony
credible.
The judge additionally found the police entry into the home
was valid because Frank, its owner, "knowingly consented and agreed
to allow the entry and even sent his daughter Sophia to assist."
Certainly, factual support for this conclusion is found in Sophia's
unequivocal testimony that Frank said he gave the police permission
to enter the home and asked her to let the police in. Indeed, in
the context of the search of a home, both the United States Supreme
Court and our Supreme Court have recognized that a third party can
validly consent to a search in certain circumstances. United
States v. Matlock, 415 U.S. 164, 170-71, 94 S. Ct. 988, 992-93,
39 L. Ed. 2d 242, 249-50 (1974); State v. Cushing, 226 N.J. 187,
199 (2016). "The third party's ability to consent to such a search
rests on his or her 'joint occupation' of and 'common authority'
over the premises." Cushing, supra, 226 N.J. at 199 (quoting
Fernandez v. California, ___ U.S. ___, ___, 134 S. Ct. 1126, 1132-
33, 188 L. Ed. 2d 25, 32-33 (2014)). Moreover, depending on the
circumstances, the law enforcement officer may rely on the apparent
19 A-5772-14T4
authority of a person to consent to a search. Illinois v.
Rodriguez, 497 U.S. 177, 185-89, 110 S. Ct. 2793, 2800-02, 111 L.
Ed. 2d 148, 159-61 (1990).
We note, however, again in the context of a search under the
consent exception to the warrant requirement, that the State must
prove "the consent was voluntary and that the consenting party
understood his or her right to refuse consent." State v.
Maristany, 133 N.J. 299, 305 (1993). The State must prove
voluntariness by "clear and positive testimony." State v. Chapman,
332 N.J. Super. 452, 466 (App. Div. 2000) (quoting State v. King,
44 N.J. 346, 352 (1965)). Furthermore, the State must show that
the individual giving consent "knew that he or she 'had a choice
in the matter.'" State v. Carty, 170 N.J. 632, 639 (quoting State
v. Johnson, 68 N.J. 349, 354 (1975)), modified by 174 N.J. 351(2002).
Guided by these criteria, we have no doubt that Frank gave
permission to the police to enter his home, and dispatched Sophia
to assist them. Notwithstanding, because the record does not
reflect that Frank was informed of his right to refuse consent,
or otherwise knew he had a choice in the matter, we are constrained
to find his consent was not voluntary. We do not deem this finding
fatal to the validity of defendant's arrest however, because
ultimately the police did not avail themselves of Frank's consent
20 A-5772-14T4
or Sophia's assistance to enter the home. Rather, as we have
noted, they lawfully relied on defendant's own conduct and actions
in opening the garage door so the police could enter the home to
effectuate his arrest.
C.
We next address defendant's contention that his statement,
along with all evidence seized, must be suppressed as products of
the unlawful police entry into the home. In rejecting this
argument, we adopt Judge Hodgson's well-reasoned analysis:
Having found . . . probable cause
[existed] to arrest defendants and that the
entry into the residence was consensual and
therefore lawful, the evidence recovered
pursuant to the search warrants and statements
obtained are not "poisoned fruit" and are
therefore admissible. However, [assuming]
arguendo, even if the entry were found to be
unlawful, the statements would be admissible
since courts have generally declined to apply
the exclusionary rule to statements obtained
where probable cause existed prior to the
unlawful conduct. New York v. Harris, 495
U.S. 14, 17-19[, 110 S. Ct. 1640, 1642-44,
109 L. Ed. 2d 13, 20-22] (1990) (the Supreme
Court addressed a case in which the police
illegally entered defendant's home in order
to effect his arrest for which they had
probable cause. . . . [T]he arrest was
otherwise legal, although the entry into the
house without a search warrant violated
Payton.6 In Harris, the Court declined to
suppress defendant's confession). See also,
State v. Bell, 388 N.J. Super. 629, 637 (App.
6
Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d
639 (1980).
21 A-5772-14T4
Div. 2006) (the [C]ourt cited Harris and
"decline[d] to apply the exclusionary rule in
this context because the rule in Payton was
designed to protect the physical integrity of
the home; it was not intended to grant
criminal suspects, like Harris, protection for
statements made outside their premises where
the police have probable cause to arrest the
suspect for committing a crime."). In this
case, and as explained in Harris, "the
statement[s], while the product of an arrest
and being in custody, [were] not the fruit of
the fact that the arrest was made in the house
rather than someplace else." [Harris, supra],495 U.S. [at] 20 [].
In the instant case, probable cause to
arrest defendants was established by the
statements of the victim [T.M.], and exists
independently of the entry. [] Similarly,
because the probable cause supporting the
search warrant does not rely on any illegally
obtained evidence, the recovery of the gun and
drugs would also not be considered poisoned
fruit and not subject to suppression. In
addition, it is not necessary to assess the
subject searches under the attenuation
doctrine since the probable cause is
established in the warrants without reference
to any illegally obtained evidence. As the
Supreme Court in Harris explained, "[the]
attenuation analysis is only appropriate
where, as a threshold matter, courts determine
that 'the challenged evidence is in some sense
the product of illegal government activity.'"
[Harris, supra], 495 U.S. at 19[, 110 S. Ct.
at 1642-43, 109 L. Ed. 2d at 21] (citing United
States v. Crews, [445 U.S. 463], 471 [, 100
S. Ct. 1244, 1250, 63 L. Ed. 2d 537, 546
(1980)]. "[T]he exclusionary rule enjoins the
Government from benefiting from evidence it
has unlawfully obtained; it does not reach
backward to taint information that was in
official hands prior to any illegality[.]"
22 A-5772-14T4
[Crews, supra, 445 U.S. at 475, 100 S. Ct. at
1252, 63 L. Ed. 2d at 548].
. . . .
In this case[,] the probable cause
supporting the search warrants is established
by the statements of [T.M.] and [Katerina],
which are not the product of any illegal
government activity. [] For the foregoing
reasons, even were the entry of the residence
at Ross Court to be found unlawful, the
statements from [Katerina] and defendant as
well as the items recovered pursuant to the
search warrants would not be "poisoned fruit"
and subject to the exclusionary rule.
D.
For the first time on appeal, defendant argues that Sophia's
joint participation with police brings her conduct within the
purview of the exclusionary rule. Specifically, he contends that
the empty wax folds and drug paraphernalia Sophia found in the
bathroom should be suppressed on this basis. We do not find this
argument persuasive.
Defendant cites State v. Scrotsky, 39 N.J. 410 (1963), to
support his position. However, we deem defendant's reliance on
Scrotsky misplaced. In that case, police brought a landlady to
defendant's apartment when he was not home so she could search for
articles she claimed were stolen. The Court concluded that the
warrantless search was unlawful because the landlady entered the
apartment with the officers "and seized the property under color
23 A-5772-14T4
of their authority and as a participant in a police action." Id.
at 415.
In the present case, it was Frank, not the police, who
requested that Sophia go to the residence. After police conducted
a protective sweep of the home, they allowed Sophia to enter and
remain inside while they secured a search warrant. During this
period, Sophia was confined to the kitchen and bathroom.
Importantly, Sophia testified unequivocally that she was not asked
or directed by the police to search for anything. Rather, she
inadvertently discovered the items when she used the bathroom and
noted the cabinet doors were not shutting properly. She then
turned the items over to the police. The police did not search
the home, or seize the items Sophia discovered, until a search
warrant was obtained. Accordingly, defendant's contention that
Sophia was a "joint participant" in the police search of the home
lacks record support.
E.
Defendant in his supplemental brief also argues that the
protective sweep of the home was unreasonable and violated his
Fourth Amendment rights. This argument warrants little
discussion.
In Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 1098,
108 L. Ed. 2d 276, 286 (1990), the United States Supreme Court
24 A-5772-14T4
authorized a "protective sweep" exception to the warrant
requirement for a search conducted in conjunction with an arrest,
carefully limiting the search to "spaces immediately adjoining the
place of arrest from which an attack could be immediately
launched." Our Supreme Court has
limited the protective sweep of a home to
settings in which "(1) police officers are
lawfully within the private premises for a
legitimate purpose, which may include consent
to enter; and (2) the officers on the scene
have a reasonable articulable suspicion that
the area to be swept harbors an individual
posing a danger." [State v. Davila, 203 N.J.
97, 102 (2010)]. This Court has also imposed
strict constraints on the duration and scope
of the protective sweep in the residential
setting. Ibid.; accord State v. Cope, 224
N.J. 530, 548 (2016).
[State v. Robinson, ___ N.J. ___, ___ (2017)
(slip op. at 18-19).]
Here, the police conducted a protective sweep of the home
after defendant and Katerina were removed. In sustaining the
validity of the protective sweep, Judge Hodgson found "the officers
had a reasonable basis to perceive danger after receiving a report
from dispatch that a man was just robbed at gunpoint. Therefore,
the protective sweep was reasonable to ensure officer safety."
"Further, [the] officers were justified in securing the residence
pending a search warrant." We agree with these well-reasoned
conclusions. Moreover, defendant points to no evidence that was
25 A-5772-14T4
discovered or seized during the limited protective sweep, which
was conducted for the officers' safety while they secured the home
pending issuance of the search warrant.
F.
We have considered defendant's other contentions in light of
the record and applicable legal principles and conclude they are
without sufficient merit to warrant extensive discussion in a
written opinion. R. 2:11-3(e)(2). We add only the following
comments.
Defendant challenges the admissibility of Katerina's
statement on the grounds that she was high on drugs and the police
did not re-administer Miranda warnings to her upon resuming her
interrogation. However, as the State correctly points out,
defendant lacks standing to assert Katerina's rights against self-
incrimination. State v. Baum, 199 N.J. 407, 420-26 (2009). In
any event, after reviewing the testimony and evidence, Judge
Hodgson concluded that "[Katerina] knowingly, intelligently, and
voluntarily waived her Miranda rights," and her "will had not been
overborne and the requirements of due process had not been
violated." Having reviewed the record, we discern no basis to
disturb the judge's factual findings and legal conclusions.
Defendant argues in his pro se brief that his guilty plea is
invalid and must be vacated. However, defendant withdrew his
26 A-5772-14T4
motion to vacate his guilty plea, thereby depriving the trial
court of the opportunity to decide the issue. Similarly, while
defendant now argues that the State failed to present exculpatory
evidence to the grand jury (specifically, the fact that T.M.
recanted his allegations that a robbery occurred), defendant did
not move to dismiss the indictment on this basis. "Generally, an
appellate court will not consider issues, even constitutional
ones, which were not raised below." State v. Galicia, 210 N.J.
364, 383 (2012). To the extent defendant attributes these or any
other errors to the ineffective assistance of counsel, such claims
involve allegations and evidence that lie outside the trial record
and are thus more appropriately addressed in a post-conviction
proceeding. State v. Preciose, 129 N.J. 451, 460 (1992).
Affirmed.
27 A-5772-14T4