NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
The grand jurors for Morris County returned an indictment charging defendant Gordon A. Washington with third-degree possession of a controlled dangerous substance (CDS), an ounce or more of marijuana, N.J.S.A. 2C:35-5a(1), b(11); possession of CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-7a; and fourth-degree possession of CDS, over fifty grams of marijuana, N.J.S.A. 2C:35-10a(3). Following the denial of defendant's motions to suppress and reconsider, defendant pled guilty to fourth-degree possession. The judge sentenced him to a two-year term of probation and assessed the appropriate fines, penalties and fees.
Defendant appeals and, as authorized by Rule 3:5-7(d), challenges the denial of his motion to suppress. On the morning of April 23, 2010, firefighters of the Borough of Madison's Fire Department and Patrolman Kevin Boone of the Madison Police Department responded to a 9-1-1 call placed by a neighbor of defendant who heard the smoke alarm in his apartment sounding. Defendant was not at home.
The firefighters arrived first. Upon entering defendant's apartment and observing smoke, which was "light" but "choking" and "gagging," the firefighters moved through the apartment to locate the fire and verify that no one was there. Firefighter Robert Dunn opened a door and found a utility closet. In addition to a sump pump, it was being used to house potted marijuana plants under a grow light. Dunn alerted the firefighter in charge, Chief Louie E. DeRosa, but after seeing the marijuana DeRosa told Dunn to move on to find the source of the smoke and deal with what he saw in the closet later.
The firefighters then saw a plate on a table or credenza that had a pile of smoldering papers on it. Although the plate was cracked, the fire had pretty much burned itself out. The firefighters looked for what might have ignited the fire, and took the plate outside. After the smoldering mass on the plate was removed, they ventilated the apartment to remove the smoke.
Patrolman Boone's duties included responding to fires and assisting the firefighters by controlling traffic and crowds outside. He left the firefighters alone to do their job and spoke to the woman who called 9-1-1, who was outside with other neighbors. According to Chief DeRosa, the only firefighter who testified at the hearing, he spoke to Patrolman Boone and told him that one of his men "seems to have found some marijuana plants growing in a closet."
According to Patrolman Boone, firefighter Barios approached him and said, "I want to show you what I found." Following Barios, Patrolman Boone saw the plate with a burned "prayer" candle, the charred dresser where it was found and, after Barios opened the door to show him, the marijuana plants under the grow light in the utility closet. Patrolman Boone also saw dried marijuana plants outside the closet. He then looked around the bedroom and saw paraphernalia — a wooden box with two smoked "joints," and an "exacto knife."
Patrolman Boone went to his patrol car for a camera and called for the detectives who process crime scenes in case the patrolman had missed something. They arrived quickly and some of the firefighters were still outside. Next to the bed, Patrolman Boone and a detective found eighty-seven small plastic bags, which were empty but of the type "used for distribution," and a plastic container with marijuana residue in it.
Applying the plain view and emergency aid exceptions to the warrant requirement, the trial judge found that the evidence was lawfully seized. The judge found:
[T]he Madison Fire Department responded to a 9-1-1 call reporting a smoke alarm activation ... in Madison. The defendant Mr. Washington was not present at the time of the alarm, although he was a resident and the owner of the premises. Upon arriving at the scene, Chief DeRosa was joined by firefighters Dunn ... and Bruce Barios....
The smoke alarm had been sounding. The Chief ... noticed a haze of smoke throughout the apartment. Shortly after gaining access into the apartment ... [f]irefighter Rob Dunn told Chief DeRosa that he found what appeared to be marijuana plants under a light in a closet in the bedroom.
The [c]ourt finds that this was discovered by [f]irefighter Rob Dunn almost immediately after the entrance. The cause of the smoke was a mass of papers that were smoldering by the time the firefighters arrived. These papers were on a plate. The smoldering mass, as it's been referred to in reports, was then removed outside the premises and the firefighters through positive pressure ventilation started to air out the apartment.
The [c]ourt finds ... Chief DeRosa's testimony to be credible, logical, and consistent with what would occur upon entry into a home given those circumstances. The [c]ourt finds as credible that the firefighters were first looking to determine whether there was a potential danger to life, and then to determine the source or the origin of the fire that was causing the smoke. It was during this "search" of the premises by the firefighters that the marijuana plants were first observed by Captain Rob Dunn.
... Officer Kevin Boone of the Madison Police Department also received the call contemporaneously with the fire department. And he arrived at the scene.... He was there five to six minutes when [f]irefighter Barios came up to him and said I want to show you what I found. At which time, Officer Boone followed [f]irefighter Barios into the premise[s]. Firefighter Barios brought Officer Boone to the closet where the marijuana plants were located. Officer Boone recognized the plants to be marijuana. He also made other observations of items in the room that appeared to be contraband, which included additional marijuana plants, along with clear plastic bags, a plastic container which he believed has marijuana residue, some marijuana cigarettes and an exacto tool. Office Boone then went out to his vehicle to obtain his camera from his patrol car and reentered the dwelling to take pictures of the plants.
....
Both the United States Constitution and New Jersey Constitution protect citizens from warrantless searches and seizures by government officials. Our Fourth Amendment guarantees the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.... As our Supreme Court recently pointed out in State v. Pena Flores, 198 N.J. 6, 19 [(2009)], "warrantless searches are presumptively unreasonable and thus prohibited unless they fall within one of the well-delineated exceptions to the warrant requirement."
One of these well-delineated exceptions to the warrant requirement is the plain view [doctrine].... In order to sustain the plain view doctrine as an exception, (1) law enforcement must have been lawfully in the viewing area; (2) the evidence must have been inadvertently discovered; and (3) law enforcement must have probable cause to associate the evidence with criminal activity.
....
On the facts before it the [c]ourt finds that Officer Boone was lawfully positioned at the time that he made the observation based upon the following findings. First it is clear that the firefighters on the scene were in the performance of their duty and that they were called to the scene based upon a potential danger both to property and persons. In sum, they were carrying out their duty and it was while the course of that duty that they uncovered the marijuana plants, which in and of themselves the [c]ourt finds inadvertent.
The [c]ourt notes as the defendant did in his brief under Michigan v. Tyler that firefighters much like police officers are considered agents of the State, and therefore, an individual is entitled to the same degree of privacy in a search conducted by a firefighter as he would be with a search conducted by police officers. Nonetheless, the [c]ourt finds that the firefighters observance of the marijuana plants does not violate Michigan v. Tyler....
Upon making the observation that they did, [f]irefighter Barios ... spoke to Officer [Boone who] follow[ed firefighter] Barios into the residence so that Barios could show Officer Boone what he had found. The [c]ourt finds Officer Boone's testimony to be credible that he did not ask [f]irefighter Barios what he had found or [f]irefighter Barios did not offer particulars....
Had Officer Boone been told and this [c]ourt found that there was evidence of criminality within the house, unrelated particularly to the fire, that is that there was no claim of arson, the officer might not have been justified in entering the premises at that time without a warrant. However, those are not the facts of this case as determined by the [c]ourt.
The officer entered into the home not knowing what he was to be shown; not knowing whether it was evidence of arson; not knowing whether it was injury to a person; only that he was following Fire Officer Barios which he did. It was upon entering into the bedroom following [f]irefighter Barios that Officer Boone made the observation that he did of the marijuana plants.
The [c]ourt finds again on the record before it and having determined applicable facts and relevant facts, that at that point Officer Boone was lawfully at the looking post and therefore, the observations that he made which based upon his training, education, and experience appeared to be evidence of criminality that he was entitled to act thereupon.
... There are a number of cases that refer to matters in which police and other law enforcement agencies who are not initially investigating a fire were permitted to gain entry and to [seize] certain evidence that was found during the course of the fire.
Some States even hold that firefighters themselves may seize criminal evidence unrelated to arson. A majority of those cases hold that [a] warrant is not needed because the defendant no longer has a reasonable expectation of privacy for that area of the residence where one officer is already present....
....
On the record before it, the [c]ourt finds for the reasons stated that the motion to suppress is denied....
In support of the final assertions, the judge relied upon State v. Bell, 737 P.2d 254 (Wash. 1987), and several decisions of the Federal Courts of Appeals including Steigler v. Anderson, 496 F.2d 793 (3d Cir.), cert. denied, 419 U.S. 1002, 95 S.Ct. 320, 42 L. Ed. 2d 277 (1974). See also Eady v. Connecticut, 753 A.2d 95 (Conn. 1998) (reh'g en banc), cert. denied, 528 U.S. 1030, 120 S.Ct. 551, 145 L. Ed. 2d 428 (1999).
In his opening brief, defendant argues:
THE MOTION JUDGE COMMITTED HARMFUL ERROR IN NOT SUPPRESSING THE EVIDENCE OBTAINED BY THE WARRANTLESS SEARCH, NON-CONSENSUAL ENTRY INTO THE DWELLING WHERE THE FIRE OFFICIAL IN CHARGE OF THE SCENE INFORMED THE OFFICER OF THE CONTRABAND BEFORE HE ENTERED THE HOME AND NO LAWFUL REASON JUSTIFIED HIS ENTRY INTO THE HOME.
In his reply brief, defendant contends:
THE WARRANTLESS, NON-CONSENSUAL SEARCH OF THE HOME IS INVALID UNDER EXISTING LAW IN NEW JERSEY.
Defendant's argument, in the trial court and on appeal, does not distinguish between the marijuana plants retrieved from the utility closet and the paraphernalia and "joints" Patrolman Boone observed in the bedroom. Noting that the judge overlooked Chief DeRosa's testimony about having informed the patrolman of the marijuana plants, defendant argues that the judge would and should have suppressed the marijuana plants because Patrolman Boone entered with the intent to seize them.
In response, the State argues that the judge erred to the extent he indicated that Patrolman Boone "might not have been justified in entering the premises at that time without a warrant."1 The State argues that Patrolman Boone did not need a warrant to seize the contraband and evidence of drug possession that was in plain view when the firefighters entered and lawfully addressed the fire emergency. We agree.
The trial court properly relied on the emergency aid/firefighters and plain view exceptions to the warrant requirement in denying defendant's motion to suppress the marijuana plants and the other evidence Patrolman Boone saw when he followed firefighter Barios into defendant's home. Patrolman
Boone's involvement simply presents a wrinkle in the analysis. The wrinkle presents an issue Judge Skillman resolved in State v. O'Donnell, 408 N.J.Super. 177, 178-79 (App. Div. 2009), aff'd o.b., 203 N.J. 160 (2010), cert. denied, ___ U.S. ___, 131 S.Ct. 803, 178 L. Ed. 2d 537 (2010) — the validity of "a seizure of evidence without a warrant" that "constitutes a reasonable continuation of [an] initial entry to provide emergency aid" in a home. See U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7.
A police officer or other public safety official may enter a home under the emergency aid exception to the warrant requirement if that official has
an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or prevent serious injury; his primary motivation for entry into the home [is] to render assistance, not to find and seize evidence; and there [is] a reasonable nexus between the emergency and the area or places to be searched.
[State v. Frankel, 179 N.J. 586, 600, cert. denied, 543 U.S. 876, 125 S.Ct. 108, 160 L. Ed. 2d 128 (2004).]
If there is a proper entry into a home under the emergency aid exception, "evidence observed in plain view by a public safety official who is lawfully on the premises and is not exceeding the scope of the search will be admissible." Id. at 599-600.
[O'Donnell, supra, 408 N.J. Super. at 182.]
Defendant does not dispute that Madison's firefighters properly entered his apartment in response to a 9-1-1 call reporting a sounding smoke alarm upon confirming that the cause was smoke in the apartment. Moreover, the trial court's factual findings support a determination that Dunn was in the process of identifying the source of the smoke and the absence of any person injured by or at risk of injury from the gagging and choking smoke when he opened the door to the utility closet and saw the marijuana plants under a grow light.
That conduct of the firefighter was reasonably limited to the scope of the reason for entry of defendant's home. "[O]fficials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze [even] after it has been extinguished." Michigan v. Tyler, 436 U.S. 499, 510, 98 S.Ct. 1942, 1950, 56 L. Ed. 2d 486, 499 (1978). Moreover, "if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional." Ibid. The evidence that may be seized is "any evidence that is in plain view during the course of [the officers'] legitimate emergency activities." Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 2413, 57 L. Ed. 2d 290, 300 (1978); O'Donnell, supra, 408 N.J. Super. at 184 (quoting Mincey).
It is true that where "reasonable expectations of privacy remain in the fire-damaged property, additional investigations begun after the fire has been extinguished and fire and police officials have left the scene, generally must be made pursuant to a warrant or the identification of some new exigency." Michigan v. Clifford, 464 U.S. 287, 293, 104 S.Ct. 641, 647, 78 L. Ed. 2d 477, 484 (1984) (suppressing evidence seized a half day after the firefighters left the home secured during a search of an attic of the house undertaken after learning that the cause and origin of the fire was in the basement). But Patrolman Boone was by no means conducting a new investigation when he seized evidence the firefighters observed while they were doing their work; Patrolman Boone was on the scene and completing the work while the firefighters were still there.
Neither the delay between the plain view observation during legitimate emergency activity and the seizure nor the fact that seizure is made by an officer other than the one who made the plain view observation is constitutionally significant in this case. O'Donnell, supra, 408 N.J. Super. at 185-86; see State v. Magnano, 528 A.2d 760, 761-66 (Conn. 1987). The goal of "`effective law enforcement'" is furthered and "`the rationale and purpose of the plain view doctrine'" are promoted by recognizing that an officer "`whose duty it is to process evidence'" may seize evidence another officer observed "`in plain view.'" O'Donnell, supra, 408 N.J. Super. at 186 (quoting Mangano, supra, 528 A.2d at 764).
For those reasons and others too well stated in O'Donnell to warrant a poor summary here, this court held that a
reentry into defendant's apartment by the Prosecutor's Office investigators to seize evidence observed in plain view by the Highland Park police officers during their initial entry [into a residence to provide emergency aid] was merely another "component[] of a single, continuous, and integrated police action" conducted under the emergency aid exception to the warrant requirement.
[408 N.J. Super. at 186-87 (quoting State v. Henry, 133 N.J. 104, 116 (1993)).]
We upheld the search because the "evidence seized by the Prosecutor's Office investigators was all observable by the Highland Park police officers when they entered defendant's apartment in response to her sister's 9-1-1 call." Id. at 187. Thus, we concluded that the items seized, even those not mentioned by the Highland Park officers in their reports, "would have been within view during the Highland Park police officers' initial entry into the apartment" and the path they took through it. Ibid.
Applying the principles articulated in O'Donnell to the facts as the judge found them to be in this case, we affirm. Defendant's focus on whether or not Patrolman Boone knew what he would find misses the mark. What Patrolman Boone knew or was motivated to find is immaterial. In State v. Edmonds, 211 N.J. 117, 131-32 (2012), the Court modified the three-part test it adopted in Frankel, to eliminate the focus on the officer's subjective motivation as contrary to the United States Supreme Court's decisions in Brigham City v. Stuart, 547 U.S. 398, 404-05, 126 S.Ct. 1943, 1948, 164 L. Ed. 2d 650, 658 (2006) and Michigan v. Fisher, 558 U.S. 45, 46-48, 130 S.Ct. 546, 548, 175 L. Ed. 2d 410, 413 (2009). As modified in Edmonds,
for a warrantless search to be justified by the emergency-aid doctrine, the State must prove only that (1) the officer had `an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or to prevent serious injury' and (2) there was a "reasonable nexus between the emergency and the area or places to be searched."
[211 N.J. at 132 (quoting Frankel, supra, 179 N.J. at 600).]
Under O'Donnell, the first question is whether the firefighter's opening of the door to the utility closet was "`limited to the reasons and objectives that prompted' the need for immediate action" — entry of the home to locate the source of the smoke and anyone endangered by it or the fire. Edmonds, supra, 211 N.J. at 134. The plain view exception applies where the officer is "lawfully in the viewing area," "discover[s] the evidence `inadvertently,' meaning that he did not know in advance where the evidence was located nor intend beforehand to seize it," and it is "`immediately apparent' ... that the items were evidence of a crime, contraband, or otherwise subject to seizure." State v. Bruzzese, 94 N.J. 210, 236 (1983) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 470, 91 S.Ct. 2022, 2037-40, 29 L. Ed. 2d 564, 582-85 (1971)), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L. Ed. 2d 695 (1984); accord State v. Mann, 203 N.J. 328, 341 (2010).
Because the "gagging" smoke Chief DeRosa described warranted entry into the apartment and taking a look into the utility closet to see if anyone was there, Dunn's conduct was within the reasonable limits of the firefighters' reason for entering. Thus, he was lawfully in the viewing area when he inadvertently found what was readily identifiable as contraband. Dunn and Chief DeRosa could have seized the plants and anything contraband or evidence of crime they observed in properly performing their mission at that time.
Moreover, consistent with O'Donnell, Patrolman Boone could gather the evidence the firefighters were in a position to see as they did their work, whether or not he knew what Barios had seen. The record amply supports the conclusion that Patrolman Boone seized only what "would have been within view during the" firefighters' "initial entry into the apartment" and as they walked through it in connection with their reason for entry. Accordingly, we affirm the denial of defendant's motion to suppress.
Affirmed.
