Posted by drig crime defense pawyer, Jeffrey Hark. https://www.criminalcivillawyer.com/
Smoking pot while answering one’s front door, then tossing the evidence when seeing it’s the police, creates probable cause to search under the plain-view and exigent-circumstances doctrines, the state Supreme Court says. The justices reversed an Appellate Division ruling that suppressed drug evidence found in the warrantless search in State v. Walker, A-49-11.
They stressed it was the defendant’s own guilty behavior that gave the police authority.
“We do not suggest that, had no one come to the door, the mere smell of marijuana would have justified a forced entry into defendant’s home,” the court said.
Two Newark policemen came to Rashad Walker’s Riverview Court apartment, part of a public housing complex, on a tip from a confidential informant that he was selling drugs. They could smell marijuana smoke. One officer was dressed in plain clothes in order to attempt to make a purchase. When Walker opened the door and saw the second officer’s badge, he threw the joint into his living room and attempted to shut the door. The officers gained entry. In plain view, they found 22.4 grams of marijuana, 27 packets of heroin, 4.2 grams of cocaine, a scale and a razor.
After Essex County Superior Court Judge Stephen Bernstein denied his motion to suppress, Walker pleaded guilty to multiple drug offenses but preserved his right to appeal the motion denial. The Appellate Division reversed.At the Supreme Court, the state relied heavily on the reliability of the informant, who had provided valuable tips on at least 10 prior occasions.
The court said that was not enough to justify a warrantless search, but Walker’s actions were.
“Although the information contained in the tip was uncorroborated, by the time the officers knocked at the door of defendant’s apartment, subsequent events, created by defendant’s own actions, established probable cause and exigent circumstances which justified an entry into defendant’s apartment,” wrote Judge Ariel Rodriguez for the court.
“Clearly, defendant must have been aware that the officers knew he was committing an offense,” Rodriguez said. And once he threw the joint back into the living room and tried to shut the door, the officers “were compelled to act to prevent defendant from disposing of the marijuana cigarette, or eluding the officers.”
Judge Mary Catherine Cuff did not participate in the otherwise unanimous decision.
Assistant Deputy Public Defender Amira Scurato, Walker’s attorney on the appeal, says the ruling, being limited to its facts, “doesn’t change the overall landscape regarding privacy in one’s own house,” she says.
Officials from the Division of Criminal Justice did not return a reporter’s call