State v. Weaver, DOCKET NO. A-4582-18

STATE OF NEW JERSEY, Plaintiff-Respondent, v. SAQUAN J. WEAVER, Defendant-Appellant.

DOCKET NO. A-4582-18

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted February 8, 2021

April 6, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Messano, Suter and Smith.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 18-09-1504.

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

Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Shiraz Deen, Assistant Prosecutor, on the brief).

PER CURIAM

Following an evidentiary hearing and denial of his motion to suppress, defendant Saquan J. Weaver pled guilty to second-degree eluding, N.J.S.A. 2C:29-2(b), and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), and one count in each of two other indictments. In accordance with the plea bargain, the judge imposed concurrent sentences aggregating in a term of eight-years imprisonment with a forty-two-month period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).

Defendant appeals and raises the following points for our consideration:

POINT I

THE WARRANTLESS ENTRY INTO THE HOME AND THE SUBSEQUENT SEARCH UNDER THE MATTRESS FAILED TO SATISFY ANY EXCEPTIONS TO THE WARRANT REQUIREMENT, THEREBY VIOLATING THE FEDERAL AND STATE PROTECTIONS AGAINST UNREASONABLE SEARCHES AND SEIZURES.¹

POINT II

THE EIGHT-YEAR PRISON TERM WAS MANIFESTLY EXCESSIVE.

We affirm.

I.

Barnegat Township Police Detective Gregory Martinez was assigned to the Narcotics Unit and had participated in "[h]undreds" of narcotic-related investigations. At approximately 3:20 p.m. on July 13, 2018, he was conducting surveillance at the Barnegat Wawa, "a high narcotics traffic area." Martinez saw defendant, who he immediately recognized from prior police investigations, driving a white Tucson with Ontario, Canada, license plates; a female passenger, who Martinez also recognized from prior police contact, was in the car. Martinez knew at least one prior investigation involved defendant's possession of a firearm, and he also knew that defendant's driver's license was suspended. Additionally, a confidential informant had told Martinez "very recent[ly]" that he saw defendant with a weapon. Martinez later testified that defendant was a victim in a shooting in May or June, and the informant described a particular weapon he saw in defendant's possession about the same time.

Martinez was in an unmarked car without emergency lights, so, when defendant drove away, the detective called in other units to effectuate a motor vehicle stop. Martinez exited his car as two uniformed officers stopped the Tucson on a dead-end street. When asked for his credentials, defendant drove forward, executed a K-turn, and came back toward the officers at thirty-to-thirty-five miles per hour. Martinez testified that as the officers scrambled for safety, the car passed within a few feet of them. The officers returned to their vehicles but were unable to pursue defendant who was already out of sight. They broadcast a description of defendant and the car.

Within "a couple [of] minutes," another officer located the Tucson parked in front of a home on Mast Drive. Martinez testified the address was "a known location" for defendant, and home of a woman who was pregnant with defendant's child. The passenger Martinez saw earlier driving with defendant was standing next to the Tucson, speaking with other officers. She denied knowing where defendant was and claimed she did not know why he "ran."

Martinez said a "concerned citizen" told police that defendant exited the Tucson and ran into the Mast Drive house. As police approached the front door, the owner came outside. She said defendant was not inside but told Martinez he could go in and look. Martinez did not review a "standard consent . . . form" with her prior to entering the home. He estimated that between five to eight minutes had passed since defendant fled from the motor vehicle stop.

Together with Sergeant Andrew Parsley and two uniformed officers, police cleared each room. Martinez and Parsley entered a bedroom and saw "a large bulge underneath the mattress. It seemed like someone was hidingunderneath there." Martinez lifted the mattress and "immediately recognized [a] silver handgun as well as a large blue case . . . underneath the bed." In response to the judge's questioning, Martinez said the bed was pushed into the corner of the room, against the wall, and "[i]t was like somebody was trying to hide in between the wall and underneath the bed." The blue case was a plastic gun case.

Martinez did not seize this evidence at the time, but rather continued to another bedroom and adjoining bathroom. A young woman was using the bathroom at the time, so police closed the door and waited outside until she was finished and left. Police found defendant hiding behind a shower curtain in the bathroom. After arresting defendant and securing the Mast Drive home, police applied for and obtained a search warrant for the premises. They seized a total of three handguns, including the one seen earlier under the mattress, the gun case and ammunition, including hollow point bullets.

Defendant called Sergeant Parsley as a witness. He was uninvolved in, but aware of, the events prior to police arriving at the Mast Drive house. Parsley, who had ten years' experience as the Ocean County SWAT commander, formulated a plan for entry with the seven or eight police officers he said were at the scene.

Parsley confirmed that the owner gave police permission to enter the house, but he also said that if she had denied police access, "we would still have made entry" because of the exigency of the circumstances. Parsley explained that police had reason to believe defendant was inside the house, and considering "the totality of everything," defendant posed a threat to the community and police who were pursuing him. Parsley corroborated much of Martinez's testimony regarding events after police entered the home. He described the lump under the mattress and said the mattress was "displaced enough that . . . [he] thought it could be a person." Parsley later said, in response to a question from the judge, that the lump could have been caused by a person's legs under the mattress.

After considering the parties' briefs and oral argument, the judge issued a short, written statement of reasons supporting the order denying defendant's motion to suppress. He found both witnesses credible and initially rejected defendant's argument that the passage of time between the motor vehicle stop and arrival of police at the Mast Drive home eliminated the exigency of the situation. He also found that the homeowner consented to the search, writing: "Th[e] consent and the exigent circumstances afforded law enforcement thelawful authority to search the residence for [d]efendant and any possible weapons that could be utilized to harm law enforcement or any other occupants."

The judge also addressed defendant's contention that the officers acted unreasonably in lifting the mattress because it was "highly improbable that the detectives could have reasonably thought that the 'bump in the mattress' was [d]efendant, a six[-]foot[,] two[-]hundred pound male." The judge noted the "superficial appeal" of the argument but credited Parsley's testimony that the bump could have been created by someone's legs, finding "that explanation sufficiently credible and . . . law enforcement's conduct was reasonable when viewed in the totality of the circumstances. . . . [L]ifting the mattress to investigate the unknown 'bump' was consistent with insuring officer safety."

II.

We address seriatim the various arguments defendant makes challenging the warrantless entry and search of the Mast Drive home. "An appellate court reviewing a motion to suppress evidence in a criminal case must uphold the factual findings underlying the trial court's decision, provided that those findings are 'supported by sufficient credible evidence in the record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). "[A] trial court's findings should be disturbed only if they are so clearlymistaken 'that the interests of justice demand intervention and correction.'" State v. A.M., 237 N.J. 384, 395-96 (2019) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). However, we review the motion judge's legal determinations de novo. State v. Hagans, 233 N.J. 30, 38 (2018) (citing State v. Gamble, 218 N.J. 412, 425 (2014)).

Defendant first contends the officers failed to obtain valid consent to enter the house from its owner because she "was not told she had a right to refuse consent and the presence of a large number [of] police officers was inherently coercive." We disagree.

"Both the United States Constitution and the New Jersey Constitution guarantee an individual's right to be secure against unreasonable searches or seizures." State v. Williams, 461 N.J. Super. 80, 94 (App. Div. 2019) (quoting State v. Minitee, 210 N.J. 307, 318 (2012), cert. denied, 241 N.J. 92 (2020)). "[W]e 'accord the highest degree of protection to privacy interests within the home.'" State v. Bryant, 227 N.J. 60, 69 (2016) (quoting State v. Johnson, 193 N.J. 528, 532 (2008)).

Warrantless searches are "presumptively unreasonable," and the State bears the burden of demonstrating the search fell within one of the exceptions to the warrant requirement. Id. at 69-70 (quoting Johnson, 193 N.J. at 552).Consent to search is a one such "long-recognized" exception. State v. Coles, 218 N.J. 322, 337 (2014).

We recently considered...