NOT FOR PUBLICATION WITHOUT THE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-0817-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NAKESSE Q. ARMSTRONG,
Defendant-Appellant.
Argued October 30, 2018 – Decided December 7, 2018
Before Judges Rothstadt, Gilson, and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment Nos. 14-04-1156
and 14-02-0183.
Michael T. Denny, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Michael T. Denny, of
counsel and on the brief).
Sarah C. Hunt, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Sarah C. Hunt, of counsel and on the
brief).
PER CURIAM
Defendant Nakesse Q. Armstrong and two co-defendants were indicted
for multiple crimes related to eight armed robberies. Defendant moved to
suppress a handgun and clothing seized from his apartment without a warrant.
Following the denial of that motion, defendant pled guilty to seven counts of
first-degree armed robbery, N.J.S.A. 2C:15-1, and one count of second-degree
robbery, N.J.S.A. 2C:15-1(a)(2).
In accordance with his negotiated plea agreement, defendant was
sentenced to concurrent prison terms of fifteen years for the first-degree robbery
convictions and seven years for the second-degree robbery conviction. The
prison terms were also subject to a period of parole ineligibility, followed by
parole supervision, both as prescribed by the No Early Release Act, N.J.S.A.
2C:43-7.2. Defendant appeals and contends that the trial court erred in denying
his motion to suppress the physical evidence seized from his apartment. We
disagree and affirm. The search and seizure were lawful and the motion was
properly denied.
I
Defendant's conviction arose out of a spree of armed robberies of eight
gas stations that occurred over a six-week period during August and September
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2013. Defendant was arrested and his apartment was searched following the
eighth robbery.
On September 21, 2013, the Mount Laurel Police Department was
contacted and informed that a robbery had occurred at a gas station in the
neighboring town of Somerdale. An employee of the gas station reported that
two men armed with handguns had robbed the station. The owner of the station
had followed the men as they left in a vehicle and was able to report that the
suspects were driving a Mercury Grand Marquis. The owner was also able to
provide the police with the license plate number. The police ran a check and
learned that the vehicle was registered to defendant and that defendant lived at
an address in Mount Laurel. The police also obtained a photograph of defendant
from the Division of Motor Vehicles and matched that photograph with images
they obtained from surveillance video from the gas station. The surveillance
video also captured images of the two suspects and showed what each of them
was wearing.1
Shortly thereafter, the police went to defendant's address and located his
car parked outside his apartment. The police then set up surveillance around the
1
The trial court allowed testimony concerning the surveillance video to show
what the police knew at the time of the search and not for the truth of the matter.
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3
apartment. Thereafter, police officers observed a car pull up outside of
defendant's apartment. Defendant then exited the apartment and ran towards the
car. The police moved in, arrested defendant, and searched him incident to that
arrest.
Following defendant's arrest, the police continued their surveillance of the
apartment. Approximately forty-five minutes later, two women exited the
apartment and the police stopped and questioned them. One of the women was
defendant's girlfriend and the mother of his child. The girlfriend informed the
police that her two-month-old child was sleeping in the apartment. An officer
testified that the girlfriend then asked the police to check on the child.
The police went into the apartment and found the child, who was
unharmed. The police also conducted a protective sweep and, during that sweep,
they observed a handgun and clothing that appeared to be wet. Throughout the
evening of September 21, 2013, it had been raining heavily. The police secured
the apartment and applied for and obtained a search warrant. The police then
conducted a search of the apartment pursuant to the warrant and seized the
handgun and clothing.
Following his indictment, defendant moved to suppress the physical
evidence seized from his apartment. The trial court conducted a two-day
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evidentiary hearing and heard testimony from two of the responding officers and
defendant's girlfriend. One of the officers testified that when the girlfriend and
another woman came out of the apartment, the girlfriend informed him that there
was a child still sleeping in the apartment and that the girlfriend asked the
officers to check the home so she could re-enter it. The officer also testified
that the police then entered the apartment to make sure that the child was safe
and to search for the second suspected armed robber.
The girlfriend's testimony differed from the police officer's testimony.
The girlfriend testified that her friend had received a call telling her that the
police were outside the apartment. The two women then opened the front door,
saw police lights, and tried to close the door. According to the girlfriend, the
police ordered the women out of the apartment and, as the women left the
apartment, the police entered the apartment. The girlfriend acknowledged that,
in response to questioning, she told the police that her child was in the
apartment. She testified, however, that she was not allowed back in to check on
the child. Instead, when she asked the police whether the child was all right,
they told her that they would look. Thereafter, an officer came back out and
told her that the child was fine.
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Following the completion of the evidentiary hearing, on December 1,
2014, the trial court entered an order denying defendant's motion to suppress.
The court also issued a comprehensive thirty-three-page written opinion.
In its opinion, the trial court made detailed findings of fact and
conclusions of law. Significantly, the court found the two police officers who
testified to be credible and found the girlfriend's testimony to be credible on
certain issues, but incredible concerning how the police entered the apartment.
In that regard, the trial court found that the girlfriend had informed the police
that the child was in the apartment and had asked the police to check on the
child's safety.
The court then analyzed the searches and seizures in a series of steps
finding (1) probable cause for the arrest of defendant; (2) a lawful search
incident to the arrest of defendant; (3) a lawful entry into defendant's apartment
under the community-caretaking doctrine; (4) a lawful protective sweep of the
apartment; (5) the lawful discovery of the handgun and clothing in plain view;
and (6) a valid search warrant.
II
On appeal, defendant challenges the denial of his motion to suppress the
seizure of the physical evidence and contends
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THE TRIAL COURT ERRED IN FINDING THAT
POLICE LAWFULLY ENTERED THE
APARTMENT. BECAUSE THE EVIDENCE SEIZED
WAS TAINTED BY THE UNLAWFUL ENTRY,
ARMSTRONG'S MOTION TO SUPPRESS SHOULD
HAVE BEEN GRANTED.
Our review is limited when a motion to suppress is denied following an
evidentiary hearing. We defer to the factual and credibility findings made by
the trial court, "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 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) (citing State v. Johnson,
42 N.J. 146, 162 (1964)). The legal conclusions of a trial court are reviewed de
novo. Id. at 263 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)).
The Fourth Amendment states that
[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
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Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.
[U.S. Const. amend. IV; see also N.J. Const. art. I, ¶ 7
(using essentially identical language).]
Warrantless searches are presumed invalid, but the State may overcome that
presumption by showing that the search fell into one of the recognized
exceptions to the warrant requirement. State v. Hill, 115 N.J. 169, 173-74
(1989).
The search and seizure at issue on this appeal involved several exceptions
to the warrant requirement. The trial court found that the police lawfully entered
the home under the community-caretaking doctrine. The court then found that
the gun and clothing were discovered in plain view during the course of a valid
protective sweep.
A. The Community-Caretaking and Emergency-Aid Doctrines
The community-caretaking doctrine, first enunciated by the United Sates
Supreme Court in Cady v. Dombrowski, 413 U.S. 433 (1973), is based on the
idea that police officers "often are called on to perform dual roles." State v.
Diloreto, 180 N.J. 264, 276 (2004). The doctrine applies when the "police are
engaged in functions, [which are] totally divorced from the detection,
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investigation, or acquisition of evidence relating to the violation of a [criminal]
statute." Id. at 275 (alterations in original) (quoting State v. Cassidy, 179 N.J.
150, 161 n.4 (2004)).
The doctrine serves as an exception to the warrant requirement for a search
(1) when officers' actions are "unconnected to a criminal investigation" and (2)
when their actions are "objectively reasonable under the totality of
circumstances." Id. at 278. The question "is not the circumstances that brought
the police to the scene . . ., but whether the actual entry into the [home] was for
the legitimate purpose of fulfilling a community caretaking responsibility."
State v. Bogan, 200 N.J. 61, 77 (2009).
The community-caretaking role "extends to protecting the welfare of
children" and reflects "the State's general parens patriae duty to safeguard
children from harm." Id. at 75. Because "leaving children unattended may
constitute a significant threat to their safety and welfare," police may make a
warrantless entry "for the purpose of ascertaining the whereabouts and
condition" of an unattended child. Id. at 76 (quoting State v. Garland, 270 N.J.
Super. 31, 45-46 (App. Div. 1994) (allowing warrantless entry into a motel to
check on the welfare of a child under the emergency-aid doctrine)).
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In New Jersey, "[w]ithout the presence of consent or some species of
exigent circumstances, the community-caretaking doctrine is not a basis for the
warrantless entry into and search of a home." State v. Vargas, 213 N.J. 301, 321
(2013). Nevertheless, "[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
exception applies in exigent circumstances, allowing an officer to enter a home
without a warrant if the officer has "'an objectively reasonable basis to believe
that an emergency requires that he [or she] provide immediate assistance to
protect or preserve life, or to prevent serious injury' and there is a 'reasonable
nexus between the emergency and the area or places to be searched.'" Id. at 323-
24 (quoting State v. Edmonds, 211 N.J. 117, 132 (2012)). Accordingly, a
warrantless entry into a home to check on a child may be justified under a
combination of the community-caretaking doctrine and the emergency-aid
exception. See Vargas, 213 N.J. at 323-24.
In this case, the trial court found that the officers were informed by the
girlfriend that her two-month-old child was unattended in the home. The court
also credited the police officer's testimony that he believed that the second
armed suspect might be in the home. Accordingly, the police acted in the
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community-caretaking function under the emergency-aid exception when they
entered the home to check on the safety of the child.
B. The Protective-Sweep and Plain-View Exceptions
In New Jersey, the protective-sweep exception to the warrant requirement
applies to both arrests and non-arrest settings. State v. Bryant, 227 N.J. 60, 70
(2016); State v. Davila, 203 N.J. 97, 116-21 (2010). In a non-arrest setting, the
State must prove that "(1) law enforcement officers are lawfully within the
private premises for a legitimate purpose, which may include consent to ent er;
and (2) the officers on the scene have a reasonable [and] articulable suspicion
that the area to be swept harbors an individual posing a danger." Bryant, 227
N.J. at 70 (alteration in original) (quoting Davila, 203 N.J. at 125).
"[T]he legitimacy of the police presence must be probed." Davila, 203
N.J. at 126. The police may not "create[] the danger to which they [become]
exposed by entering the premises, and thereby bootstrap into an entitlement to
perform a protective sweep." Ibid. To ensure that the protective-sweep doctrine
does not "swallow whole the protections of the warrant requirement," id. at 121,
the court must scrutinize the State's justification to determine "whether the
request for entry was legitimate or a ruse[.]" Id. at 126.
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The plain-view exception allows police to seize contraband in plain view
without a warrant if three requirements are met: "(1) the officer must be lawfully
in the viewing area when making the observation; (2) 'the discovery of the
evidence . . . must be inadvertent,'" State v. Gonzales, 227 N.J. 77, 91 (2016)
(citations omitted) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 468,
469 (1971)); and (3) the "police officer must have 'probable cause to associate
the property with criminal activity.'" State v. Bruzzese, 94 N.J. 210, 237 (1983)
(quoting Texas v. Brown, 460 U.S. 730, 741-42 (1983)).
In Gonzales, the New Jersey Supreme Court eliminated the inadvertence
prong of the plain-view test. Gonzales, 227 N.J. at 99. The Court, however,
applied that new rule of law prospectively as of the date of the opinion—
November 15, 2016. Id. at 101. The search at issue in this case took place on
September 21, 2013, and therefore, we analyze the officers' actions under the
pre-Gonzales standard.
The trial court here found that the officers were lawfully inside the home
under the community-caretaking and emergency-aid exceptions to the warrant
requirement. Accordingly, the trial court properly found that prong one of the
protective-sweep exception was satisfied. Turning to the second prong, the
court found that the officers had a reasonable and articulable suspicion that the
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second robbery suspect was in the apartment. Given the totality of the
circumstances, that suspicion was reasonable and the police acted appropriately
in conducting a sweep to protect their safety.
The trial court also found that the protective sweep was conducted
"quickly, with the officers checking only [areas] where an adult suspect could
hide." The court then found that the clothes and the gun were inadvertently
observed in plain view during the protective sweep. All of those findings are
supported by substantial, credible evidence in the record, and we discern no
error in the trial court's application of the factual findings to the law.
The State also argues that the entry into the home was made after the
girlfriend gave a valid consent to search. Further, the State argues that the search
and seizure was valid under the independent-source rule. Given our conclusion
that the trial court's findings are supported by substantial, credible evidence, we
need not reach those issues.
Affirmed.
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