State v. AlvarezState v. Alvarez
We granted the State‘s motion for leave to appeal from an order of the Superior Court, Law Division, suppressing approximately one ounce of cocaine and related drug paraphernalia seized by the police in a warrantless search of defendant Eric Alvarez‘s hotel room. The Law Division judge found that the search was not supported by probable cause and that the evidence was not within the plain view of the arresting police officers prior to their entry into the room. The State asserts that the Law Division judge‘s findings of fact are not supported by sufficient credible evidence present in the record. Alternatively, the State argues that the facts, as found by the Law Division judge, were sufficient to establish probable cause.
I.
The salient facts can be briefly summarized. At approximately twelve noon on November 23, 1988, Detective Samuel
His suspicions aroused, Detective Thomas “called for a backup.” Three plain clothes detectives who had been working nearby responded. The four officers proceeded to the fourth floor. From their vantage point in the hallway, the detectives heard a male voice from Room 402 state “if we sell one more ounce, we‘ll have enough to re-up.” Based upon their training and experience, the detectives believed that there was an ongoing scheme to distribute drugs from the room and that after making another sale, the perpetrators would attempt to “resupply.”
After knocking on the door, one of the officers, in a falsetto voice, identified himself as the maid. According to the detectives, when the door to the room was opened, they observed narcotics and drug paraphernalia in plain view. They then entered the room, seized the contraband and arrested the occupants.
The principal factual issue presented at the hearing was whether the detectives observed the drugs prior to their entry into the hotel room. We need not recount the evidence presented with respect to that question in great detail. Suffice it to say, the testimony of the four detectives deviated on that critical point.
II.
Preliminarily, we reject the State‘s argument that the Law Division judge erred in finding as a fact that the detectives entered the hotel room prior to observing the contraband. Although the issue was hotly contested, we are entirely satisfied that the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record. State v. Johnson, 42 N.J. 146, 165, 199 A.2d 809 (1964). In this respect, we are obliged to review the record in light of the State‘s contention, but not initially from the point of view of how we would decide the matter if we were the court of first instance. Id. at 161, 199 A.2d 809. The aim of our review is to determine whether the judge‘s findings are supported by evidence in the hearing transcript. Id. at 162, 199 A.2d 809. In making that determination, we are duty-bound to give deference to those findings which are substantially influenced by the judge‘s opportunity to hear and see the witnesses and to have the “feel” of the case. Id. at 161, 199 A.2d 809. Applying these principles, we cannot fairly say that the Law Division judge went so wide of the mark, a mistake must have been made.
III.
While the scope of our review of the judge‘s factual findings is narrow and restricted, we are not similarly confined in assessing the validity of the legal conclusions he reached.
Probable cause is an elusive concept incapable of precise definition. It is more than mere suspicion but less than legal evidence necessary to convict. State v. Mark, 46 N.J. 262, 271, 216 A.2d 377 (1966). It has been described by our Supreme Court as a “well grounded” suspicion that an offense has been committed. State v. Burnett, 42 N.J. 377, 387, 201 A.2d 39 (1964); see also State v. Waltz, 61 N.J. 83, 87, 293 A.2d 167 (1972); State v. Dilley, 49 N.J. 460, 463-464, 231 A.2d 353 (1967). Our courts have eschewed technisms in reviewing factual circumstances to determine whether probable cause exists. State v. Esteves, 93 N.J. 498, 503, 461 A.2d 1128 (1983). Probable cause must be drawn from “practical considerations of everyday life” as tested by reasonably prudent persons. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949). In dealing with probable cause, as the very name implies, we are concerned with probabilities. Ibid. Resolution of such issues is rarely susceptible to abstract contemplation. Rather, the answer must be found in the “tumult of the streets.” State v. Gerardo, 53 N.J. 261, 264, 250 A.2d 130 (1969). Hence, the decisions of police officers which, as here, often must be made on the spur of the moment, cannot be viewed from the vantage point of twenty-twenty hindsight. State v. Grant, 196 N.J. Super. 470, 476, 483 A.2d 411 (App.Div. 1984).
In this case, we are dealing with law enforcement efforts to eradicate one of the chief instrumentalities of human catastrophe, the distribution of dangerous drugs. The business is carried on warily and guardedly and in as many different ways and by as many conceivable methods as human ingenuity can
Against that backdrop, we are satisfied that the circumstances known to the detectives were such as to establish a reasonable belief that a crime was being committed in their presence. Initially, we note that the information received from the citizen informant that a disturbance relating to drugs had occurred at the Aristocrat Hotel clearly called for further investigation. Detective Thomas was not dealing with a tip received from a faceless and anonymous member of the criminal milieu, but rather from an ordinary citizen presumably having “no ties or connections with the underworld....” State v. Lakomy, 126 N.J. Super. 430, 435, 315 A.2d 46 (App.Div. 1974). “Consequently, an individual of this kind may [generally] be regarded as trustworthy and information imparted by [her] to a police [officer] concerning a criminal event would not especially entail further exploration or verification of [her] personal credibility or reliability before appropriate police action is undertaken.” Ibid. In these circumstances, the officer would have been derelict in his duty had he failed to investigate.
The detective‘s suspicions were further aroused when he learned that there had been numerous telephone calls and “foot traffic” to and from Room 402. Moreover, the room was registered to defendant Alvarez, an individual known to the detective by reason of a prior drug investigation.
Perhaps, no single circumstance was determinative of the prudence of the action taken by the detectives. Consideration of the various factors separately, which is defendant‘s thesis here, may show no one in itself sufficient. In combination, however, the test of probable cause was clearly satisfied.
IV.
Because the Law Division judge determined that the police officers lacked probable cause, he did not reach the issue whether the warrantless entry was justified by exigent circumstances. We now address that question.
It has been said that “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. 740, 749, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 743 (1984).
Only recently, our Supreme Court in State v. Hutchins, 116 N.J. 457, 561 A.2d 1142 (1989) and State v. Lewis, 116 N.J. 477, 561 A.2d 1153 (1989), had occasion to consider the parameters of the exigent circumstances exception to the warrant requirements
While these factors can be articulated with disarming ease, their application to a concrete factual pattern is not without difficulty. The issue is “highly fact-sensitive.” State v. Lewis, 116 N.J. at 487, 561 A.2d 1153. Commonly a constitutional question involves no more than a value judgment upon a factual complex rather than an evident application of a precise rule of law. State v. Funicello, 60 N.J. 60, 72, 286 A.2d 55 (1972) (Weintraub, C.J., concurring). In making these judgments, our review must be in a commonsense and realistic fashion, taking into account that police officers are not constitutional lawyers and their decisions often cannot be the product of studied reflection. “Our function is not to second-guess police officers, but rather to establish guidelines within which objectively-reasonable police action can be sustained.” State v. Lewis, 116 N.J. at 488, 561 A.2d 1153.
Ordinarily, we would remand the matter to the Law Division to resolve the pivotal issues that affect the justification for the warrantless entry — the existence of exigent circumstances and whether, if they existed, they were permissibly or impermissibly created by the police officers. See State v. Hutchins, 116 N.J. at 476-477, 561 A.2d 1142. Unfortunately, that remedy is unavailable to us because the Law Division judge is no longer on the bench. We perceive no double jeopardy consideration which would preclude us from ordering a new hearing. Id. at 477, 561 A.2d 1142. However, we are convinced that the better course is for us to exercise original jurisdiction and decide the questions presented. See
Based upon our review of the record, we are convinced that the State met its heavy burden of establishing that exigent circumstances existed and that they were not impermissibly created by the police. It is obvious from our recitation of the factors cited in State v. Hutchins and State v. Lewis, that some apply and others do not. Nevertheless, we do not read these opinions as requiring a quantitative rather than a qualitative analysis of the factors listed.
Perhaps the most compelling circumstance present here is the degree of urgency involved. The point to be stressed in this regard is that the police were involved in an “immediate,
Second, the police officers harbored the reasonable belief that the contraband was about to be removed. From the conversation overheard by the officers, they could reasonably conclude that most of the drugs had already been sold. While it is true that the police could have attempted to secure a warrant while awaiting the sale of the remainder of the drugs, such a course would pose serious risks. As we will note more fully, the hotel room was not conducive to further surveillance without the possibility of being detected. We know of no constitutional doctrine that would compel the officers to risk the possibility of being detected and the correlative danger to their safety in the event their investigation were to go awry. We acknowledge that there was no evidence suggesting that defendants might have reacted in a violent way had they discovered the presence of the detectives in the hallway. However, we would be short on realism were we to fail to note that police work is dangerous work.
Third, drugs and drug paraphernalia, by their very nature, can be rapidly secreted or destroyed. If detected by the occupants of the motel room, it was reasonably foreseeable that much, if not all, of the evidence would have been discarded or otherwise lost.
Finally, we emphasize that we are concerned here with a hotel room, not a person‘s house. We recognize that the occupants of a hotel room are entitled to the protection of the Fourth Amendment. See Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374, 381 (1966). However, “the reasonable privacy expectations in a hotel room differ from those in a residence.” United States v. Agapito, 620 F.2d 324, 331 (2nd Cir.1980), cert. den. 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980). “[D]espite the fact that an individual‘s Fourth Amendment rights do not evaporate when he rents a motel room, the extent of the privacy he is entitled to reasonably expect may very well diminish.” United States v. Jackson, 588 F.2d 1046, 1052 (5th Cir.1979), cert. den. 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). Granted that a tenant has standing to protect the room he occupies, “there is nevertheless an element of public or shared property in motel surroundings that is entirely lacking in the enjoyment of one‘s home.” Marullo v. United States, 328 F.2d 361, 363 (5th Cir.1964).
Beyond this, unlike a private home, the ability of police officers to secure or continue a surveillance of a hotel room poses peculiar risks, many of which we have identified. It bears repeating that the hotel was empty other than the room occupied by the defendants. The detectives had been told that there had been a great volume of “foot traffic” to and from the room. Had the officers remained in the hallway while awaiting a search warrant, the strong likelihood is that their presence would have been noticed.
The order of the Law Division suppressing the evidence is accordingly reversed.