STATE OF NEW JERSEY v. TARIQ K. AYRES (16-11-0856 AND 19-03-0131, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-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

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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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