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(NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5482-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALVIN McCONNEYHEAD,

Defendant-Appellant. ___________________________________ January 3, 2011 Ja Submitted October 27, 2010 - Decided

Before Judges Ashrafi and Nugent.

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On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-12-1194.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Alvin McConneyhead appeals from an order denying his motion to suppress evidence. We affirm. In December 2006, a Union County grand jury returned a six-count indictment charging defendant with possession and distribution of cocaine, including within 1,000 feet of a school, and obstruction of justice. After his motion to suppress evidence was denied, defendant entered a conditional plea of guilty to thirddegree possession of cocaine, N.J.S.A. 2C:35-10a(1). In accordance with his plea agreement with the State, defendant was sentenced to four years' imprisonment and money penalties as required by statute. The other counts of the indictment were dismissed. On defendant's motion to suppress evidence, the trial court conducted a hearing in which two police witnesses and defendant testified. Patrolman Franklin Idrovo testified that he and Patrolman Raul Delaprida were on duty in the early morning hours of October 5, 2006. They were in plain clothes, driving an unmarked car, and assigned to patrol for street crimes in an area of Elizabeth known for drug transactions, prostitution, and robberies. At 1:25 a.m., they passed a rooming house on Morris Avenue where people often congregated outside. The officers saw that the front door of the rooming house was open. In the past, the door had been closed and locked. The officers entered the hallway and saw two men a few feet from the door. As soon as they announced they were police officers, the two men fled up the stairway. The officers gave chase. One of the men, identified as defendant, threw an object to the floor as he was fleeing. After defendant was captured, Officer Delaprida retrieved the thrown object, a plastic bag inside which were nineteen smaller plastic bags

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containing suspected cocaine. Defendant was then arrested. Officer Idrovo arrested the other man and found a single small bag of cocaine on his person. That man later made a statement that he had purchased cocaine from defendant. The defense presented the testimony of Lieutenant John Deresz, who had detailed knowledge of the record-keeping practices of the Elizabeth Police Department through a computer aided dispatch, or CAD, system. Relying on the data in the CAD record, defendant argued that the police had designated the location of the police entry and arrests as a "home" rather than an apartment building, and they had unlawfully entered the home without a warrant or other exigent circumstances and chased defendant up the stairs. Finding the testimony of the arresting officer credible, the trial court denied the motion to suppress evidence. The court concluded that the police entry into the hallway was reasonable because the door was left open in the middle of the night and that, upon the two men taking flight, the police had reasonable suspicion to chase and detain them to investigate their presence in the building at that hour. In reviewing a motion to suppress evidence, an appellate court must defer to the trial court's fact findings and "feel" of the case and may not substitute its own conclusions regarding the evidence. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)); State v. Robinson, 200 N.J. 1, 15 (2009). In particular, the appellate court must defer to the credibility determinations of the trial court between competing factual testimony. Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed.2d 1022 (1966). On appeal, defendant has not challenged the trial court's factual findings or credibility determinations. Instead, he challenges the court's legal conclusions, arguing that: THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.
1

A. THE POLICE LACKED REASONABLE SUSPICION TO DETAIN THE DEFENDANT.

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B. THE POLICE ENTERED A HOME WITHOUT A WARRANT AND ILLEGALLY ARRESTED THE DEFENDANT.

Our standard of review is plenary because defendant's arguments address legal conclusions reached from undisputed evidence. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.; see also State v. Mann, 203 N.J. 328, 337 (2010) ("When a question of law is at stake, the appellate court must apply the law as it understands it."). Arguing primarily from the holding of State v. Tucker, 136 N.J. 158 (1994), defendant contends that his flight from the police did not give them probable cause or reasonable suspicion to seize his person by chasing him up the stairs. In Tucker, our Supreme Court held that a seizure of the defendant occurred when he fled on the street and several police officers chased him on foot and by patrol car. Id. at 161-62, 166. The United States Supreme Court had reached a different conclusion in virtually identical factual circumstances in California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 1550-51, 113 L. Ed.2d 690, 697 (1991). In Hodari D., the Court held that a police pursuit was not a "seizure" under the Fourth Amendment until the defendant was captured. Ibid. In Tucker, supra, the Supreme Court of New Jersey decided that article I, paragraph 7 of our State constitution provides more protection than the Fourth Amendment for individuals to be "secure in their persons" against police conduct. 136 N.J. at 164-66 (citing United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 1877, 64 L. Ed.2d 497, 509 (1980); State v. Davis, 104 N.J. 490, 498 (1986)). Deciding the issue on state constitutional grounds, the Court held that flight alone did not authorize the police to seize a person for investigation. Id. at 165, 168-70. Here, the police "seized" defendant within the meaning of the State constitutional protection by chasing him up the stairs of the rooming house. Although the Court in Tucker stated "[n]ot every police pursuit is a seizure[,]" id. at 167, the pursuit in this case resembled more closely the "seizure" of the defendant found in Tucker than the less-intrusive police investigative pursuits described in Michigan v.

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Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 100 L. Ed.2d 565 (1988), and State in the Interest of C.B., 315 N.J. Super. 567 (App. Div. 1998). However, the Court in Tucker did not hold that flight was irrelevant to whether the police had reasonable suspicion to pursue and detain a person for investigation. Rather, flight together with other evidence of unexplained and suspicious conduct could provide the police with a lawful basis to investigate further by means of pursuit and temporary detention of the person in accordance with Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968). Tucker, supra, 136 N.J. at 167-69; see also State in the Interest of J.B., 284 N.J. Super. 513 (App. Div. 1995) (late-night police "sweep" of drug-sales area, together with citizen's report of drug sales on corner of street, gave the police reasonable suspicion to seize and detain juvenile who fled when police approached). Here, the police had more than merely defendant's flight to support their pursuit up the stairs. Defendant was in a hallway of a rooming house with an open door at 1:30 a.m. The police were aware that the door was usually closed and locked. Upon seeing defendant and another man in the hallway, the police could make a "field inquiry" without objective evidence that defendant was involved in criminal activity. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed.2d 229, 236 (1983); State v. Davis, 104 N.J. 490, 497 (1986). When defendant and the other man immediately fled, the level of information the police had, in that setting at that time, grew to reasonable and articulable suspicion of criminal activity, and it justified the pursuit and temporary detention of defendant for investigation. See State v. Doss, 254 N.J. Super. 122, 127-28 (App. Div.), certif. denied, 130 N.J. 17 (1992). When defendant discarded an object as he fled and the object was found to contain suspected cocaine, reasonable suspicion grew to probable cause justifying defendant's arrest.
2

We conclude, as did the trial court, that the police had reasonable suspicion to detain and question defendant upon encountering him in the hallway of the rooming house and his immediate flight from them. Defendant argues alternatively that the police had no right to enter the hallway of a private home to conduct an investigation. "A basic principle of Fourth Amendment law is that 'searches and seizures inside a home without a warrant are presumptively unreasonable.'" State v. Henry, 133 N.J. 104, 110 (quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed.2d 639, 651 (1980)), cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed.2d 436 (1993). On the other hand, the police do not require a

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warrant to enter a hallway or other common areas of an apartment building to investigate criminal activity. See State v. Smith, 37 N.J. 481, 496 (1962), cert. denied, 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed.2d 1055 (1963) ("A policeman is not out-of-bounds when he is in the common passageway of a multi-family house in the furtherance of an investigation."); State v. Brown, 282 N.J. Super. 538, 547 (App. Div.), certif. denied, 143 N.J. 322 (1995) (police did not need a warrant to enter and search a utility room used by defendant, who was the porter of an apartment building, and others). To support his argument that the police entered a private home, defendant relies on the CAD designation in the police records identifying the police activity as occurring in a "home" and not a multi-unit residence such as an apartment building. The State responds that the front hallway of a rooming house is a common area of a multi-residential dwelling accessible to persons outside defendant's control, and that defendant did not have a constitutionally recognized expectation of privacy when he was at that location. In State v. Nunez, 333 N.J. Super. 42, 46-51 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001), we discussed the divergence of both federal and state case law on the issue of whether the hallway of an apartment building is subject to Fourth Amendment protections against police intrusion. In Nunez, the police had a warrant to search one apartment in a three-unit building, but the warrant required that they knock and announce their presence before entry. The police had entered an open door of the building into the common hallway without first knocking and announcing. Id. at 45. We stated in Nunez that "whether a door is locked or unlocked [is] a far more reliable predictor of a reasonable expectation of privacy than the size of the building in which one resides." Id. at 51. In State v. Penalber, 386 N.J. Super. 1, 10 (App. Div. 2006), we stated: Our courts have not decided whether a common hallway in a two-unit apartment building is within the zone of privacy protected by the Fourth Amendment and the parallel provision of the New Jersey Constitution. However, the Supreme Court has indicated that generally in "multi-occupancy premises . . . none of the occupants can have a reasonable expectation of privacy in areas that are also used by other occupants." State v. Johnson, 171 N.J. 192, 209 (2002). We found it unnecessary to decide the issue in Penalber because the search and seizure were otherwise unlawful. Id. at 11. Likewise in this case, we decline to hold that the police had a right to enter the hallway of the rooming house on Morris Avenue simply because it housed more than one resident. The cases cited by the

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State or discussed here did not pertain to a rooming house as opposed to an apartment building. On the record presented to us, we do not have sufficient factual evidence by which to determine the reasonable expectations of privacy of the residents in the common areas of the rooming house. We do not know from this record how many residents occupied the rooming house and whether they shared rooms, such as a living room, kitchen, or bathrooms. We do not view as automatically transferable to a rooming house the holdings of cases pertaining to hallways and similar common areas of apartment buildings. Also missing from the appellate record, however, is any evidence of what expectation of privacy this defendant had in the hallway of the building in which the police encountered him. Nothing in the record indicates that he resided in the rooming house or was an invited guest there. A person would have no recognizable expectation of privacy against police entry, and hence no protected constitutional rights, in a home in which he is an intruder. See State v. Perry, 124 N.J. 128, 149-50 (1991); State v. Harris, 298 N.J. Super. 478, 484-85 (App. Div.), certif. denied, 151 N.J. 74 (1997). More important, without explicitly stating so, the trial court appears to have concluded that the warrantless entry was justified under the community caretaking function of the police. See Cady v. Dombrowski, 413 U.S. 433, 439-48, 93 S. Ct. 2523, 2527-31, 37 L. Ed.2d 706, 713-18 (1973); State v. Bogan, 200 N.J. 61, 73-75 (2009). The court stated: [T]he officers' entry into the hallway was objectively reasonable under the circumstances. . . . The officers were entering that to investigate an area that they found to be unusual. When they entered into the hallway, their observations were appropriate. They had a right, when they saw two individuals, even in a boarding house, to approach and just inquire as to their circumstances.

. . . . Just to make sure everything was all right given the circumstances, the officers may have believed that a burglary was in progress or something untoward was happening.

We read these remarks as the trial court's conclusion that, because of the late hour and unusual nature of the open door, the police could enter the hallway without a warrant for the purpose of assuring the safety of residents and property. See State v. Garbin, 325 N.J. Super. 521, 525 (App. Div. 1999) (performance of their responsibility to assure the safety of the community may authorize the police to enter a building without a warrant), certif. denied, 164 N.J. 560 (2000). We agree with that conclusion.

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In sum, we find no violation of defendant's constitutional rights on this record, either in the initial entry through an open door of the rooming house into the common hallway or in the police pursuit of defendant when he fled.

Affirmed. 1 Defendant has not included a transcript of his own testimony in the appellate record. We must assume that none of his testimony would have assisted our understanding of the issues he raises on appeal.

2 We need not address the State's argument that defendant's flight gave the police probable cause to pursue and arrest him for obstruction of justice. See State v. Williams, 192 N.J. 1, 10 (2007); State v. Crawley, 187 N.J. 440, 460-61, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed.2d 563 (2006). Unlike the facts in Williams and Crawley, defendant in this case fled before the police made any attempt to detain him.

Also, we reject the State's argument that defendant had no constitutional rights in the package of cocaine because he abandoned it by tossing it aside. The Court in Tucker supra, 136 N.J. at 172, held that the defendant there had not "abandoned" a package of drugs because the discarding occurred as a result of the unlawful police seizure of his person.

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