State v. Henry

LANDAU, J.A.D.,

dissenting.

This “buy and bust” operation, initiated after an informant’s tip, took place during .daylight.hours at an apartment where people came and went to buy drugs on Norfolk Street, Newark; not in the dark on a quiet Sussex country lane. I cannot imagine where a five-person “bust” team reasonably could be expected both to maintain surveillance and remain undetected while a team member secured an arrest or search warrant.

Here, we know that a lawful warrantless arrest could have been made upon personal knowledge by the undercover officer when he made the buy. (N.J.S.A. 40A:14-152.1). When outnumbered and necessarily uncertain of the extent to which arms are available to the occupants, it is objectively reasonable, in my view, for such an undercover officer to convey to a larger back-up unit confirmation of the buy with marked money, and the identification of the participants, leaving the job of immediate arrest to that unit.

The arrest team in this case possessed more than mere probable cause, but a degree of awareness of the crime and the criminals which approached certainty. Compare, Dorman v. United States, 435 F.2d 385, 392-93 (D.C.Cir.1970). Moreover, it is undisputed that the team knocked on the apartment door, and identified themselves when it was opened, for the purpose of making arrests. The flight of the identified participants and *605the observed concealment efforts, did not constitute the kind of police-created exigency which occurs when the police, possessing merely information of uncertain reliability, precipitate flight and consequent exigency by announcing their presence, and then search without a warrant. I do not believe that the police conduct here was objectively unreasonable within the standards considered in State v. Hutchins, 116 N.J. 457, 476, 561 A.2d 1142 (1989); State v. Lewis, 116 N.J. 477, 487-88, 561 A.2d 1153 (1989); State v. Bolte, 115 N.J. 579, 585-92, 560 A.2d 644 (1989), or State v. Alvarez, 238 N.J.Super. 560, 567-571, 570 A.2d 459 (App.Div.1991).

The majority says that the record falls short of showing that there was any danger that the occupants were armed, or of risk of detection or difficulty in surveillance. However, we have previously taken notice of the dangers inherent in this kind of police work as well as reasonable foreseeability of the ability to rapidly secrete or destroy drug contraband. See, e.g., Alvarez, supra, 238 N.J.Super. at 570, 570 A.2d 459. I submit that the very format of this buy-bust team demonstrated police recognition that in the current violent drug environment it was not safe for the officer who made the buy to try to secure an entire apartment and make multiple arrests in the face of the unknown. I would not second-guess that evident decision nor insist upon further proof to accept its basis. As to the asserted lack of a record to show risks of detection, destruction, and physical danger, these are so palpably present here, whether articulated by a police witness or not, that I do not deem material the absence of those magic words from the record. See Alvarez, supra, 238 N.J.Super. at 570, 570 A.2d 459. At most, were this a prime concern, a remand for fuller exploration of this issue should be the remedy, not a reversal.

Of course, the arrests, and seizures made incident to those arrests as the result of observations made when the participants created an exigency, must meet the “objectively reasonable” test. State v. Bruzzese, 94 N.J. 210, 463 A.2d 320 (1983). If the team had waited for a day or even an hour without *606seeking a warrant, I readily concede that this would not have been reasonable. But they moved immediately, and for the unmistakable purpose of arrest.

It is important to remember that the evidence of distribution had already been secured. I consider this to be highly relevant on the issue of the State’s burden to show that the teams’ announcement of police identity was done for purpose of effecting lawful arrests, and not for the purpose of precipitating an exigency to allow a search of the apartment.

The facts in this case do not present a forced entry into a residence for purposes of arrest, which concerned the Supreme Court in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). We have an entry precipitated by exigent circumstances which occurred only after the door was opened in response to the police knock and subsequent police identification for the purpose of arresting the described participants. The trial judge believed this. The record supports it.

Thus, the arrests and seizure survive analysis under Payton.1 Interestingly, even absent bona fide exigent circumstances, this entry complied with the four strict common law historical restrictions upon entries to arrest: (1) serious crime; (2) knock and announcement; (3) daytime knock and entry; and (4) stringent probable cause. Payton, supra, 445 U.S. at 616-17, 100 S.Ct. at 1395-96 (White, J. dissenting). See also U.S. v. MacDonald, 916 F.2d 766 (2d Cir.l990) cert. den. — U.S.-, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991), in which, as the majority opinion has pointed out, the Second Circuit en banc upheld fruits of a forced entry for purposes of an arrest without *607warrant minutes after an undercover agent’s drug buy, utilizing the Dorman factors cited in Hutchins, supra, 116 N.J. at 465, 561 A.2d 1142. In the present case, four of the six Dorman factors were clearly involved.2

I would conclude that the police conduct here was the kind of reasonable police activity contemplated by Hutchins, well within the standards of Payton, and objectively reasonable under Bruzzese. Accordingly, I respectfully dissent.

The majority refers to Detective Schneider's testimony respecting a questionable departmental policy which implied that entries of residences for arrest purposes were routinely made without warrant, irrespective of exigency. That hypothetical scenario did not form the subject of the trial judge's findings. My colleagues have, I believe, given too little weight to the present facts and undue weight to the purported policy, which we need not address, except by way of disapproval.

(1) Clear showing of probable cause to believe suspect committed crime (here, the showing approached certainty); (2) strong reason to believe the suspect is in premises to be entered; (3) likelihood that suspect will escape (here flight efforts and attempts to conceal evidence had commenced); and (4) peaceful circumstances of the entry. See, Dorman, supra, 435 F.2d at 392-93. As recognized in MacDonald, sometimes a solitary factor will be deemed to suffice and sometimes a combination of several. The list is but a sampling of the kinds of considerations deemed relevant to support the exigency contention. See Alvarez, supra, 238 N.J.Super. at 568, 570 A.2d 459.