STATE OF NEW JERSEY VS. DEWAYNE T. EARL(14-12-3854, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-1401-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEWAYNE T. EARL, a/k/a
DWAYNE . EARL,

Defendant-Appellant.
___________________________

Submitted May 17, 2017 – Decided July 17, 2017

Before Judges Carroll and Farrington.

On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 14-12-3854.

Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).

Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
 Defendant Dwayne T. Earl appeals the denial of his motion to

suppress following an evidentiary hearing. We affirm.

On May 21, 2014, in response to two telephone calls from

citizens reporting drug distribution, Troopers Joseph Castle and

Cunningham1 responded to the corner of 8th and Walnut Streets in

Camden, New Jersey to conduct a surveillance.

At approximately 7:40 a.m. on that date, the troopers

conducted surveillance from an unmarked vehicle and observed two

African American men on the corner of 8th and Walnut conducting

four or five hand-to-hand transactions. Following the

transactions, one of the individuals, later identified as Darnel

Barnes, took money, walked up to a particular address, knocked on

the door and was met by defendant, who took the money and handed

the individual a black plastic bag. This occurred more than once

in the approximate thirty-minute duration of the surveillance.

Arrest teams were called in, and as they pulled in front of

the house, Earl saw them and ran into the house where State

troopers observed him throwing thirteen decks of heroin onto the

living room table. The police seized the heroin. Trooper Castle

entered the residence as it was being secured and applied for a

search warrant. After obtaining the warrant, he returned and

1
The officer's first name does not appear in the record.

2 A-1401-15T1
conducted a walk-through of the residence with another trooper and

recovered four firearms, including an assault firearm.

Defendant filed a motion to suppress at which he testified

on his own behalf. His testimony was essentially that he was in

his upstairs bedroom getting his daughter ready for school when

the police raided the home. He denied ever being outside the

house on the morning of the arrest. He denied exchanging drugs

for money at his residence. He acknowledged that he was served

with a search warrant while he was at police headquarters at

approximately 4:10 p.m. the same day.

Two witnesses testified on behalf of the defense. Davontane

Jenkins testified that he was on his porch, next door to the Walnut

Street address for approximately one-half hour before the police

arrived. He denied seeing Earl on his porch or in front of the

Walnut street address at any time up until the police arrived.

Jenkins' testimony was ambiguous regarding whether he actually

resided next door on the date of the arrest.

Shatera Smith also testified. She indicated she was the

girlfriend of Raymond Barker, another resident of the house, and

stayed in Barker's room the night before the arrest. On direct

examination, she testified Earl was in his bedroom at the time of

the arrest. On cross-examination, she admitted she had never left

3 A-1401-15T1
Barker's room prior to the police arriving and the door to the

room had been closed.

The court denied the motion to suppress, finding Trooper

Castle's testimony on behalf of the State credible. The court

found that Earl was outside his residence when the police arrived

and ran inside where he discarded bags of heroin onto a living

room table. The court found the search warrant was not based upon

information known to be false or with reckless disregard for the

truth.

Earl ultimately entered conditional guilty pleas to third-

degree possession of heroin with intent to distribute, N.J.S.A.

2C:35-5a)(1); and second-degree unlawful possession of an assault

firearm, N.J.S.A. 2C:39-5(f). The remaining counts of the

indictment were dismissed.

On appeal, Earl presents the following arguments for our

consideration:

POINT I

THE MOTION COURT COMMITTED REVERSIBLE ERROR
IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS
EVIDENCE.

A. The Officers' Warrantless Conduct
Violated [Defendant's] Constitutional
[sic] Right to Be Free of Unreasonable
Searches and Seizures.

(i) The Officers Lacked Probable Cause
to Arrest [Defendant].

4 A-1401-15T1
 (ii) The Officers' Entry Into the Home
Did Not Fall Within the Purview of
the Hot-Pursuit Doctrine Because
the Exigency Was Police-Created.

B. The Factual Predicate Underlying the
Motion Court's Franks v. Delaware and
State v. Smith Analysis was Flawed.
Therefore, this Court Should Remand the
Matter for Reconsideration.

We consider the court's determination that the warrantless

search of defendant and seizure of heroin from his residence were

lawful. The Fourth Amendment of the United States Constitution

and Article 1, paragraph 7 of the New Jersey Constitution guarantee

the right "of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, § 7.

As the United States Supreme Court has acknowledged,

"physical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed." United States v.

United States Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125,

2134, 32 L. Ed. 2d 752, 764 (1972). Accordingly, it is well

established that "searches and seizures inside a home without a

warrant are presumptively unreasonable," Payton v. New York, 445

U.S. 573, 586, 100 S. Ct. 1371 1380, 63 L. Ed. 2d 639, 651 (1980),

and hence "prohibited by the Fourth Amendment, absent probable

cause and exigent circumstances." Welsh v. Wisconsin, 466 U.S.

5 A-1401-15T1
740, 749, 104 S. Ct. 2091 2097, 80 L. Ed. 2d 732, 743 (1984).

State v. Hutchins, 116 N.J. 457 463 (1989). "Warrantless searches

and seizures presumptively violate those protections, but '[n]ot

all police-citizen encounters constitute searches or seizures for

purposes of the warrant requirement[.]'" State v. Rosario, ___

N.J. ___, ___ (2017) (slip op. at 17) (citing State v. Rodriquez,

172 N.J. 117, 125 (2002)).

In Rosario, our Supreme Court noted "[i]n escalating order

of intrusiveness upon a citizen's rights, three categories of

encounters" between police and the public "have been identified

by the courts: (1) field inquiry; (2) investigative detention; and

(3) arrest." Ibid. The State has the burden of proving the

existence of an exception by a preponderance of the evidence.

State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S.

1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).

Our review of a court's decision on a suppression motion is

limited. We are required to uphold the factual findings of the

trial court on a suppression motion if "those findings are

'supported by sufficient credible evidence in the record.'" State

v. Elders, 192 N.J. 224, 243 (2007). We must defer to the trial

court's findings, "which are substantially influenced by [the

court's] opportunity to hear and see the witnesses and to have the

6 A-1401-15T1
'feel' of the case, which a reviewing court cannot enjoy." Id.

at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

We first address defendant's argument that the police lacked

probable cause to arrest him. "An arrest -- the most significant

type of seizure by police -- requires probable cause and generally

is supported by an arrest warrant or by demonstration of grounds

that would have justified one. Rosario, supra, ___ N.J. at ___

(slip op. at 19). "Probable cause exists where 'the facts and

circumstances within . . . [the officers'] knowledge . . . [are]

sufficient in themselves to warrant a man of reasonable caution

in the belief that 'an offense has been or is being committed[.]'"

Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302,

1310-1311, 93 L. Ed. 1879, 1890 (1949) (citing Carroll v. United

States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555

(1925)(alteration in original)). This requires more than a "bare

suspicion," State v. Goodwin, 173 N.J. 583, 598 (2002) (quoting

State v. Burnett, 42 N.J. 377, 387 (1964), and more than an

"inarticulate hunch[]", Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct.

1868, 1880, 20 L. Ed. 2d 889, 906 (1968), but less than the quantum

of evidence necessary to convict. The probable cause standard is

also more demanding than the "reasonable suspicion" standard

applicable to investigative detentions under Terry, supra, 392

U.S. at 37, S. Ct. at 1888, 20 L. Ed. 2d at 915.

7 A-1401-15T1
 "[A]n anonymous tip, standing alone, inherently lacks the

reliability necessary to support a reasonable suspicion because

the informant's 'veracity . . . is by hypothesis largely unknown

and unknowable.'" Rosario, supra, __ N.J. at __ (slip op. at 24)

(quoting State v. Rodriguez, 172 N.J. 117, 127-28 (2002)).

Observations of police officers are generally regarded as

highly reliable and sufficient to establish probable cause for

warrantless searches, seizures and arrests. Our Supreme Court in

State v. Moore, 181 N.J. 40, 47 (2004) and State v. O'Neal, 190

N.J. 601, 613 (2007) has upheld arrests, searches and seizures

based upon observations of transactions akin to the facts here.

Even where an officer does not see the nature of the items being

exchanged, the observations can still support a finding of probable

cause to arrest when the training and experience of the officer

is properly credited. State v. Anaya, 238 N.J. Super. 31, 36

(App. Div. 1990), rev'd on other grounds.

In determining whether there is probable cause to arrest,

courts use a totality of the circumstances test. The "test

requires the court to make a practical, common sense determination

whether, given all of the circumstances, 'there is a fair

probability that contraband or evidence of a crime will be found

in a particular place.'" Moore, supra, 181 N.J. at 46 (quoting

Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76

8 A-1401-15T1
L. Ed. 2d 527, 548 (1983)). The factors the court should consider

when applying this test are a police officer's common and

specialized experience and evidence concerning the high-crime

reputation of an area. "[A]lthough factors considered in isolation

may not be enough, cumulatively those pieces of information may

'become sufficient to demonstrate probable cause.'" State v.

Daniels, 393 N.J. Super. 476, 486 (2007) (quoting State v. Zutic,

155 N.J. 103, 113 (1998)).

Trooper Castle testified to his substantial experience in

narcotics investigations. He noted his participation in over

fifty investigations involving narcotics trafficking,

participation in the execution of search warrants where illegal

narcotics have been seized, and work in an undercover capacity in

numerous controlled dangerous substance (CDS) investigations. In

addition, he testified he had extensive experience interviewing

confidential informants and conducting covert surveillance of

subjects openly engaged in the sale of CDS, resulting in their

arrest, prosecution, and conviction. He also indicated he had

extensive experience with the sale and distribution of CDS, and

the techniques and methods used to sell and distribute those

substances. He further testified he had been a witness in various

criminal prosecutions within the State of New Jersey resulting in

convictions of defendants for violations of the New Jersey criminal

9 A-1401-15T1
statutes. At the time of the arrest in question, he had been

assigned to the Metro South Station in the City of Camden for four

months and previously detached to Metro South during a previous

assignment on the Tactical Patrol Unit during which time he had

become familiar with many of the illegal drug sets within the City

limits. He testified he was also familiar with the methods and

jargon used by subjects engaged in the sale and distribution of

illegal CDS, as well as the equipment, tools, and packaging

materials used to distribute CDS.

In light of the record, we find that the motion judge

correctly concluded there was probable cause to arrest. We come

to that conclusion based upon the totality of the circumstances,

including the anonymous tip, corroborated by the observations of

a State police officer with extensive experience in narcotics and

a knowledge of and familiarity with the vicinity in which the

transactions were taking place.

We next address defendant's argument that there were no

exigent circumstances which permitted the warrantless entry into

his home. As noted by the State in its brief, "While defendant

argued below no nexus existed because he was never outside, on

appeal defendant has submitted: "Absent a closer nexus linking

[defendant] to any illegal conduct, the officers lacked probable

cause to arrest [defendant]." We find defendant's reliance upon

10 A-1401-15T1
State v. Marsh, 162 N.J. Super. 290, 297 (Law Div. 1978), aff'd

sub nom. and State v. Williams, 168 N.J. Super. 352, 358 (App.

Div. 1979) misplaced.

In Marsh, a desk sergeant learned at 10:00 a.m. that a van

containing stolen goods would be leaving a parking lot at 3:00

p.m. The police did not apply for a search warrant, and the van

was seized when it left the parking lot at 4:30 p.m. The

suppression motion was granted, the court noting,

where police have probable cause, have no
reason to believe or do not believe that a
judge will disagree, have ample time to obtain
a warrant before a known deadline of a
specifically anticipated exigent circumstance
will render the evidence unavailable, and they
fail to apply for a warrant, their search
based upon that probable cause, despite
exigent circumstances, transgresses the
Fourth Amendment as an unlawful usurpation of
the judicial function to certify the probable
cause and authorize the search by the issuance
of a warrant.

[Id. at 298.]

In Marsh, any exigency was created by the police who failed

to obtain a warrant upon receipt of the information. Here,

defendant caused the exigency by fleeing the police and discarding

the heroin.

The question of whether exigent circumstances exist is to be

determined, as it has always been, on a case-by-case basis with

the focus on police safety and preservation of evidence. State

11 A-1401-15T1
v. Pena-Flores, 198 N.J. 6, 11 (2009). When a defendant retreats

or causes some elements of a chase, and thereby causes a "hot

pursuit" by the police, our Supreme Court has stated the situations

may create a "realistic expectation that any delay would result

in destruction of evidence", thus justifying a warrantless entry.

State v. Bolte, 115 N.J. 579, 89 (1989) (citing United States v.

Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 2410, 49 L. Ed. 2d 300,

305 (1976)). Defendant appears to argue the exigent circumstances

were created by the police. Our Supreme Court has stated:

We acknowledge . . . the potential for abuse
inherent in the exigent-circumstance
exception to the warrant requirement and . .
. the concern that "the police not be placed
in a situation where they can create the
exception, because well-meaning police
officers may exploit such opportunities
without sufficient regard for the privacy
interests of the individuals involved."

[State v. Hutchins, 116 N.J. 457, 76 (1989)
(quotation omitted).]

Whether the exigent circumstance "arose 'as a result of

reasonable police investigative conduct intended to generate

evidence of criminal activity' must also be taken into account."

State v. De La Paz, 337 N.J. Super. 181, 196 (App. Div. 2001)

(quoting State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div.

1990), certif. denied, 168 N.J. 295 (2001)). Police-created

exigent circumstances which arise from unreasonable investigative

12 A-1401-15T1
conduct cannot justify warrantless home entries." Ibid. (citing

Hutchins, supra, 116 N.J. at 460). Determining whether exigent

circumstances are police-created is a fact-finding issue that

should be resolved by the judge who hears the testimony and has

the opportunity to observe and evaluate the witnesses. Hutchins,

supra, 116 N.J. at 476.

The pertinent factors include:

the degree of urgency and the amount of time
necessary to obtain a warrant; the reasonable
belief that the evidence was about to be lost,
destroyed, or removed from the scene; the
severity or seriousness of the offense
involved; the possibility that a suspect was
armed or dangerous; and the strength or
weakness of the underlying probable cause
determination.

[State v. Walker, 213 N.J. 281, 292 (2013)
(quoting State v. Deluca, 168 N.J. 626, 632-
33 (2001).]

"[T]he term 'exigent circumstances' is, by design, inexact.

It is incapable of precise definition because, by its nature, the

term takes on form and shape depending on the facts of any given

case." State v. Cooke, 163 N.J. 657, 676 (2000).

The State argues this case does not involve the kind of

deliberate conduct that courts have found to constitute police

creation of exigent circumstances. We agree. Having determined

there was sufficient evidence upon which to find probable cause

to arrest, we find the court did not err in finding the police

13 A-1401-15T1
properly pursued Earl when he retreated into his living room and

thereafter observed the discarded heroin in plain view. The Fourth

Amendment is not violated when police justifiably pursue a fleeing

criminal into his [home] after the criminal has committed a serious

crime in their presence. State v. Josey, 290 N.J. Super. 17, 31

(App. Div. 1996) (citing State v Jones, 143 N.J. 4, 14 (1995)).

Defendant argues finally that the issuance of the search

warrant rested on Trooper Castle's materially false version of

events and, therefore, a hearing was required pursuant to Franks

v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed.

2d 667, 682 (1978) and State v. Smith, 212 N.J. 365, 420-21 (2012),

cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558

(2013). When a "defendant makes a substantial preliminary showing"

that the issuance of a search warrant was based upon materially

false statements or omissions, a trial court is required to conduct

a hearing at the defendant's request. Franks, supra, 438 U.S. at

155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.

Pursuant to Franks, a defendant must meet two criteria to be

entitled to a hearing: 1) the defendant must make a substantial

showing that a false statement was knowingly and intentionally or

with reckless disregard for the truth, included by the officer in

the warrant affidavit; and 2) the allegedly false statements are

necessary to a finding of probable cause. Ibid. Defendant bases

14 A-1401-15T1
his argument on the testimony of his neighbor, Jenkins, who the

court found not to be credible. As argued by the State, the record

shows Trooper Castle's testimony and his affidavit, which was the

basis for the warrant, was tested against the testimony of the

defense witnesses. Based on that testimony the court found, as

it would have in a Franks hearing, that defendant failed to make

a substantial showing the search warrant was based upon statements

known to be false, or made with reckless disregard for the truth.

Affirmed.

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