NOT FOR PUBLICATION WITHOUT THE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-3207-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TARIQ K. AYRES,
a/k/a TARIQ K. AYERS,
Defendant-Appellant.
_______________________
Submitted February 7, 2022 – Decided February 23, 2022
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Criminal Part, Mercer County, Indictment
Nos. 16-11-0856 and 19-03-0131.
Joseph E. Krakora, Public Defender, attorney for
appellant (Melanie K. Dellplain, Assistant Deputy
Public Defender, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Kaelyn Barbour, Assistant Prosecutor,
on the brief).
PER CURIAM
This appeal concerns the police's forced entry of a motel room when
executing two outstanding warrants for defendant Tariq K. Ayres' arrest. After
knocking and announcing they were there to arrest him, the officers heard
defendant try to barricade the door. They forced their way inside and found
defendant in the bathroom, where they arrested him after a struggle. The officers
seized fourteen bricks of heroin, cocaine, drug paraphernalia, and other
contraband they saw in plain view within the room.
Defendant was thereafter charged with multiple counts of drug offenses,
the most severe of which was first-degree maintenance of a drug production
facility, N.J.S.A. 2C:35-4. He moved to suppress the incriminating evidence
police had seized from the motel room, which had been rented in the name of a
third party. After argument and testimony, the trial court denied the suppression
motion.
Defendant then entered into a plea agreement with the State admitting his
guilt of two counts of second-degree possession of controlled dangerous
substances ("CDS") with the intent to distribute them, N.J.S.A. 2C:35-5(a)(1).
Other counts, including the first-degree drug production facility charge, were
dismissed. Pursuant to Rule 3:5-7(d), defendant preserved his right to appeal
the suppression ruling. He was sentenced in accordance with the plea agreement
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to an eight-year custodial term with a four-year parole disqualifier. This appeal
ensued.
In his brief on appeal, defendant raises the following points:
POINT I
BECAUSE THE POLICE UNLAWFULLY ENTERED
THE HOTEL ROOM WHERE DEFENDANT WAS
ARRESTED WITHOUT A SEARCH WARRANT
AND DID NOT MEET THE EXIGENCY, PLAIN-
VIEW, OR SEARCH-INCIDENT-TO-ARREST
EXCEPTIONS TO THE WARRANT
REQUIREMENT, THE EVIDENCE MUST BE
SUPPRESSED.
A. The denial of defendant’s suppression
motion should be reversed because the
police conducted an illegal search when
they entered the hotel room without a
search warrant.
B. The denial of defendant’s suppression
motion should be reversed because the
plain-view exception did not justify the
seizure of the evidence from the hotel
room.
C. The denial of defendant’s suppression
motion should be reversed because the
police exceeded the scope of a permissible
search incident to arrest.
POINT II
DEFENDANT’S SENTENCE IS EXCESSIVE
BECAUSE THE SENTENCING COURT ERRED
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WHEN IT CONSIDERED DEFENDANT’S
SUBSTANCE ABUSE HISTORY AS A BASIS FOR
FINDING AGGRAVATING FACTOR THREE AND
WHEN IT FAILED TO CONSIDER MITIGATING
FACTOR NINE.
Having considered these arguments, we affirm defendant's conviction and
sentence. We discuss, in turn, his two main points concerning the suppression
issues and the sentencing.
I.
To resolve the suppression motion, the trial court conducted a two-day
evidentiary hearing at which Detective James Udijohn of the Mercer County
Sheriff's Office solely testified for the State and defendant solely testified in his
own behalf. Their testimony substantially diverged.
Detective Udijohn recounted that, on the evening of May 24, 2018, law
enforcement officials came to the motel to apprehend defendant pursuant to two
outstanding arrest warrants. One warrant was based on a recent motor vehicle
stop of defendant that involved CDS and the other was based on his failure to
pay child support. According to the detective, a confidential informant advised
that defendant, who had been intermittently staying at various motels in the
Route 1 corridor in Mercer County, was staying at a certain motel in West
Windsor.
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The police went to that motel and the desk clerk told them defendant was
staying in Room 132. The desk clerk showed the police an identification card
with defendant's name and signature, which he had left with the front desk.
Officers then conducted surveillance of Room 132 and saw defendant enter it
with a key card.
According to the detective, the officers knocked on the door of the room,
announced they had come to arrest defendant, and instructed him to come out.
Defendant did not emerge. The officers saw the curtains of the room's sole
window move. Within seconds, they heard furniture being pushed against the
door of the room, apparently as a barricade.
Concerned that defendant would try to escape and that he also might
destroy evidence of criminal activity, the police forced their way into the motel
room, breaking a window in the process. Detective Udijohn saw defendant
running to the bathroom, then heard a toilet flush, ceiling tiles fall, and the
bathroom door lock from the inside. They pushed into the bathroom, told
defendant he was under arrest and, after a struggle, handcuffed him. Once
defendant was removed from the bathroom, the officers saw a plastic container
with its lid open next to the toilet. The container visibly held a large clear Ziploc
bag, full of multiple bricks of heroin.
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Apart from these drugs found in the bathroom, the officers also noticed
that two coffee tables had been pushed against the door of the room to act as a
barricade. They discovered in plain view at the foot of the bed and on top of the
mattress a black plastic bag, from which a clear plastic bag with marijuana
protruded. A closer inspection of that bag revealed cocaine. Meanwhile,
Detective Udijohn spotted an assortment of drug paraphernalia and small clear
plastic bags filled with suspected Suboxone on the nightstand. The officers also
seized a pocketknife from defendant's waistband and $825 from the inside the
toilet tank.
In his own testimony, defendant contended he had not been residing in the
motel room. He claimed the police did not knock or announce themselves but
simply used a ram to barge into the room. He said the police tackled him and
struck him. He denied being aware of any drugs or other contraband in the room.
After considering the testimony, Judge Robert W. Bingham, II issued an
oral opinion on February 22, 2019 denying the suppression motion. Notably,
the judge found the detective's testimony more credible than that of defendant.
The judge observed in this regard that defendant's narrative had been
inconsistent and that he had been evasive on cross examination.
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Turning to his legal analysis, the judge found several exceptions to the
constitutional warrant requirement justified the officers' actions. The judge
began by noting it was undisputed the police had two valid warrants for
defendant's arrest. In addition, the judge found the police had reasonable
grounds to believe defendant had been residing in Room 132, even though the
room was not rented in his name.
The judge reasoned the police had exigent circumstances to permit their
forcible entry into the room after defendant seemingly attempted to barricade it.
Once inside the room, the police were authorized to conduct a search incident
to defendant's arrest. In addition, the police were allowed to confiscate various
drugs and drug-related items in plain view, and to open bags and containers that
visibly contained contraband.
Defendant moved for reconsideration of the suppression ruling, which
Judge Bingham denied in another oral decision on September 20, 2019.
On appeal, defendant argues the trial court erred in denying suppression.
He argues the court incorrectly found the police had sufficient grounds to
forcibly enter the hotel room, in which he had a protected privacy interest. He
contends no exigent circumstances were present, the search of the room went
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beyond the permissible scope of a search incident to arrest, and that many of the
seized items were not in plain view.
In considering these arguments, we are guided by several well settled
principles. When reviewing a suppression ruling on appeal, we give deference
to the motion judge's factual and credibility findings, so long as they have
substantial evidence in the record to support them. State v. Robinson, 228 N.J.
529, 543 (2017). However, we review the trial court's legal conclusions de novo.
State v. J.D., 211 N.J. 344, 354 (2012).
Under the Fourth Amendment of the United States Constitution and under
Article 1, paragraph 7 of the New Jersey Constitution, a person has a right to be
free from indiscriminate searches and seizures by police without a warrant,
unless one or more of the recognized exceptions to the search warrant
requirement apply. State v. Witt, 223 N.J. 409, 421-22 (2015). In that regard,
an arrest warrant does not furnish the police with the right to enter a dwelling to
arrest a person inside, unless they have valid consent to do so or exigent
circumstances are present. State v. Miller, 342 N.J. Super. 474, 479 (App. Div.
2001). As part of the analysis, the police must have "objectively reasonable
bases for believing that that the person named in the [arrest] warrant both resides
in the dwelling and is within the dwelling at the time." Ibid.
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Our courts have also observed that a guest in a hotel or motel room has a
diminished expectation of privacy as compared with a person in a private
residence. State v. Alvarez, 238 N.J. Super. 560, 570-71 (App. Div. 1990). In
contrast to a private home, "the ability of police officers to secure or continue a
surveillance of a hotel room poses peculiar risks[.]" Id. at 571. For instance, if
officers remain in the hallway while awaiting the issuance of a search warrant,
it is likely their presence will be noticed. Ibid.
Here, as the motion judge correctly recognized, the police had ample
grounds to believe that defendant resided in the motel room and was present
there, based on both the information supplied by the desk clerk and the officers'
observation of defendant entering the room. Since this is not an instance of
consent to enter, the analysis then turns on whether exigent circumstances were
present. We agree with Judge Bingham they were.
In State v. Hutchins, 116 N.J. 457, 464-73 (1989), our Supreme Court
identified several factors for determining whether police have sufficient
exigency to enter a suspect's hotel room without a search warrant. As we
summarized in Alvarez, those exigency factors are: (1) the degree of urgency
involved and the amount of time necessary to obtain a warrant; (2) reasonable
belief that the contraband is about to be removed; (3) the possibility of danger
9 A-3207-19
to police officers guarding the site of contraband while a search warrant is
sought; (4) information indicating the possessors of the contraband are aware
that the police are on their trail; (5) the ready destructibility of the contraband
and the knowledge that efforts to dispose of narcotics and to escape are
characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of
the offense involved; (7) the possibility that the suspect is armed; (8) the strength
or weakness of the facts establishing probable cause; and (9) the time of the
entry. Alvarez, 238 N.J. Super. at 568 (internal citations omitted). In addition,
it is relevant whether the exigency was "police-created." Ibid.
Given the circumstances described in Detective Udijohn's credible
testimony, the exigency factors weigh decidedly in the State's favor. The
situation was urgent and time-sensitive, as confirmed by defendant's immediate
effort to barricade the door moments after the officers announced themselves.
The information about defendant's drug dealing activity gave rise to a reasonable
concern he might try to destroy such drug contraband before the police entered.
The police could have been in danger while waiting outside, not knowing what
defendant would do in the meantime. There was at least a possibility he could
have been armed to protect himself and the drugs in his possession.
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Defendant was clearly made aware the police were seeking to arrest him
on warrants. He might have tried to escape and, in fact, did try to flush evidence
down the toilet. The gravity of the offense precipitated a multi-count indictment
that included a first-degree charge. The grounds for arresting him were based
on two valid warrants. 1 The time of entry was in the evening rather than
daytime. Lastly, the exigency was not police-created, as the detective testified
the police knocked on the door and announced themselves. It was not until they
heard defendant attempt to barricade the door that they pushed inside.
On the whole, the trial court reasonably concluded that exigent
circumstances justified the police forcing their way into the motel room. Once
inside, the police saw numerous items of contraband in plain view. We defer to
the trial court's factual finding that the seized items were all visible to the
officers. Since the officers had the right to be present where they made their
observations, the plain view exception applies. The evidence of criminal drug
dealing was "immediately apparent." State v. Gonzales, 227 N.J. 77, 81 (2016).
1
We need not concern ourselves in this case whether the same outcome would
result if there had only been the arrest warrant for non-payment of child support
without the additional warrant involving the motor vehicle stop with CDS and
the informant's tip regarding defendant's drug dealing.
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Having concluded the exceptions for exigency and plain view suffice here
to uphold the officers' entry into the motel room and their ensuing seizure of the
contraband visible inside, we need not rely on the search-incident-to-arrest
exception as an alternative basis for confiscating the drugs and drug
paraphernalia. The pocketknife removed from his waistband, insofar as it could
have been part of the State's evidence if the case had been tried, was clearly
taken incident to a lawful arrest. State v. Minitee, 210 N.J. 307, 318 (2012).
II.
We reject defendant's argument that his concurrent eight-year sentences
with a four-year parole disqualifier were excessive. The sentence was consistent
with the State's recommendation under the negotiated plea agreement. Although
defendant's counsel advocated the court to impose a shorter sentence of seven
years, the court did not abuse its discretion in imposing an eight-year term
instead.
The sentencing judge reasonably found that aggravating factors three, six
and nine under N.J.S.A. 2C:44-1(a) applied here, and no mitigating factors under
N.J.S.A. 2C:44-1(b). We reject defendant's argument that aggravating factor
three, the risk of reoffense, did not apply because the court noted his history of
substance abuse. Even if, for the sake of discussion, that history of drug use
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does not support aggravating factor three, there was other abundant indicia of
the likelihood that defendant would commit more offenses in the future. In
particular, defendant has a dismal record of previous offenses, including four
Superior Court convictions, seven Municipal Court convictions, six juvenile
adjudications, and a federal conviction.
We also reject defendant's claim the sentencing judge erred in not finding
mitigating factor nine, the character and attitude of a defendant indicative he is
unlikely to reoffend, N.J.S.A. 2C:44-1(b)(9). Although defendant expressed
remorse about his past behavior and he has made strides by obtaining a GED
and working in various jobs, the court nonetheless had sufficient grounds to
conclude he was likely to reoffend in spite of those commendable points.
We decline to second-guess the trial court's reasonable assessment of the
sentencing factors here and its adoption of a sentence consistent with the plea
agreement. State v. Case, 220 N.J. 49, 64 (2014); State v. Bieniek, 200 N.J. 601,
612 (2010).
Affirmed.
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