Protective Sweep exception used to uphold denial of motion to suppress
















Submitted November 6, 2008 – Decided


Before Judges Payne and Waugh.


On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 04-03-1040.


Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).


Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Luanh L. Lloyd,

Assistant Prosecutor, of counsel and on the





Following the denial by Judge Ravin of his motions to suppress evidence and bar the use of his confession, defendant Johnnie Davila entered a conditional plea of guilty to two counts of felony murder and one count of conspiracy to commit robbery in return for an offer of thirty years in custody with a thirty-year parole disqualifier.1 On appeal, defendant challenges the judge’s evidentiary rulings. He argues:









Judge Ravin found, for purposes of the motion, the following background facts:

[O]n November 13th, 2003, witnesses reported that white Jeep Cherokee with the letter “G” on the driver’s side, occupied by several young African-American males, approached 30 Lenox Avenue in the city of East Orange. The masked front passenger of the Jeep Cherokee approached victim [Shanfidine] Sutton and shot him. The . . . occupants of the Jeep Cherokee then fled the scene in that car. Sutton was taken to the hospital and pronounced dead.


A short time later, victim Alonzo Brown, age 15, was also shot and killed in an attempted robbery. Witnesses at the scene described the same car[] [being] used in the Sutton murder also occupied by several young African males. Witnesses claimed that the front seat passenger exited, demanded Alonzo Brown’s black leather jacket, and shot him. Alonzo Brown was pronounced dead at the scene.


Law enforcement located and recovered .40 caliber shell casings at both scenes. And a ballistics examiner later determined that both casings were fired from the same firearm, which was not recovered. Also, witnesses at the scene of the second shooting memorized a portion of the license plate number of the car.


Further investigation revealed that David Cataneo, the owner of the Jeep Cherokee, had reported it stolen a few hours prior to the first shooting. He also reported that he had left his Nextel cellular phone inside the Jeep. At 8:00 P.M. on November 13th, 2003, law enforcement recovered the car in front of 93 Alexander Street in Newark. The cellular phone, however, was not recovered.


On November 14, law enforcement obtained a communications data warrant for records of calls made to and from the Nextel phone. On November 15, investigators determined that, among other calls, eight calls had been made from the phone to 730 Dr. Martin Luther King Boulevard, apartment 1-G, in Newark during the period from November 13 to 15, the last having been made at 1:01 a.m.

Lieutenant John Melody, an employee of the Essex County Prosecutor’s Office assigned to the Homicide Division, testified at the suppression hearing regarding what then occurred. At approximately 11:20 a.m. on November 15, he and six representatives of the Newark and East Orange Police Departments traveled to the apartment to which the telephone calls had been directed. Melody knocked on the door, which was opened by a person named Jayaad Brown. Melody testified that he then told Brown that he was from the Prosecutor’s Office and asked, “can we come in?”

At that point [Brown] opened up the door for us. We stepped in. I believe at that point Investigator Sarabando along with Mike Chirico, the next two officers advised him that we were her[e] to investigate a homicide.


Melody stated that the officers were all dressed in plain clothes with their badges exposed. Melody had his hand on his weapon, but it was not drawn. He was unsure of the status of the other officers’ weapons.

Once Melody had entered, he “swung the doorway open” and surveyed the apartment, determining that no one else was visible, but noting that open doorways led to additional rooms on the right side of the apartment. Melody immediately proceeded to determine whether the other rooms were occupied, so that he could “secure” any persons found there and determine if any were armed. In the meantime, two other officers had secured Brown. Melody confirmed that, at the time, as the result of the recent murders, he was concerned for his own safety and that of the other officers.

As the result of his inspection, Melody discovered a black male named Shawn Upshaw in the rear bedroom and a substantial quantity of crack cocaine in a bag on a dresser in that room. Upshaw was taken into custody. Upon proceeding to the apartment’s second bedroom, Melody discovered defendant and a female in bed, and a cell phone on the mattress. Both were placed under arrest as the result of the discovery of narcotics in the other bedroom. By calling the number of the Nextel phone taken from the Jeep, Melody identified the phone on the bed as the one the officers had been tracing.

Once the narcotics had been seized, the apartment’s occupants had been arrested, and the telephone identified, Melody proceeded to obtain a warrant to permit a further search of the apartment. Various gang-related materials and other evidence were then seized. Thereafter, defendant gave a statement to the police in which he implicated himself and his co-defendants.

On cross-examination, Melody agreed that he had not obtained a warrant to search the apartment prior to going there because he didn’t think probable cause could be established. He denied that the officers had conducted a raid, maintaining his position that the entry into the apartment had been consensual.

In contrast to Melody’s testimony, Jayaad Brown testified that he had been in the apartment’s back bedroom when the police started banging on the door, announcing their presence, and demanding entry. Upon unlocking and opening the door, according to Brown, the officers “rushed the door” with guns drawn, causing Brown to jump back. Brown denied that the officers asked whether they could come in. Brown testified additionally that, upon entering the apartment, one or more of the officers made him “get down on the ground,” face down. Although Brown had been in the back bedroom with Upshaw, Brown maintained, after considerable equivocation, that he had no knowledge that drugs were in the apartment.

Following the hearing, written briefs were submitted by the parties. After considering them, the judge placed on the record his oral opinion denying the motions for suppression of evidence. In that connection, the judge found that Jihad Brown lacked credibility.

While testifying, he displayed a laissez-faire and jovial attitude that appeared designed to and, in fact, did elicit laughs from people in the courtroom with whom he appeared to be friends.


Also, Brown’s admitted friendship with defendants and familial relationship with defendant Johnnie Davila demonstrated to the court his interest and bias. Finally, Brown’s hesitation to answer questions concerning the narcotics found and seized by the officers and Shawn Upshaw’s connection to those narcotics further demonstrated his bias.


In contrast, the judge found Lieutenant Melody to be “absolutely and completely honest in terms of his tone, his demeanor and the content of what he said.” Accordingly, the judge accepted Melody’s testimony while rejecting that of Brown.

Addressing the substantive issues raised, the judge found that, although the officers did not have a warrant or probable cause to enter the apartment, their entry for investigatory purposes was consensual and properly conducted pursuant to State v. Padilla, 321 N.J. Super. 96, 108 (App. Div. 1999), aff’d, 163 N.J. 3 (2000). Further, the judge found the officers’ brief warrantless survey of the premises was justified as a protective sweep under decisions such as Maryland v. Buie, 494 U.S. 325, 335-36, 110 S. Ct. 1093, 1099, 108 L. Ed. 2d 276, 287 (1990) and State v. Smith, 140 N.J. Super. 368, 372 (App. Div. 1976), aff’d, o.b., 75 N.J. 81 (1977). The judge held:

In this case, upon entering the apartment at 730 Martin Luther King Boulevard, officers conducted a brief survey of the premises to ensure that the occupants of the dwelling were not armed. The police did not extend the survey beyond the scope necessary to secure their own safety. The totality of the circumstances presents an articulable reason for believing that there might be persons unseen in the apartment that posed a threat to the safety of the police.


Thos circumstances were:


1.) The police were investigating a ruthless double murder which occurred, in part, in Newark.


2.) The murders were committed with a gun.


3.) The murders occurred within the preceding 48 hours.


4.) The murders were committed by several African-American males.


5.) The gun used in the commission of the murders was missing.


6.) The apartment in question was in Newark.


7.) A cellular telephone connected to the murders was being used to call the apartment in Newark where the police were present investigating the double murder.


. . . In light of these facts, Lieutenant Melody’s concern for the safety of the officers and the action taken to ameliorate that threat were clearly reasonabl[e].


The judge acknowledged the defense argument that what had actually occurred constituted a raid. However, he rejected that argument, noting that it was well established that the subjective intent of the police officers has no significance in evaluating alleged violations of the Fourth Amendment, so long as the officers’ conduct is reasonable. In support of this conclusion, the judge cited to State v. Bruzzese, 94 N.J. 210, 219 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). “The proper inquiry for determining the constitutionality of a search and seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable without regard to his or her underlying motives or intent.” Ibid. The judge found the officers’ conduct to have been objectively reasonable.

The judge also rejected the defense argument that exigent circumstances alleged as a justification for the warrantless entry were impermissibly self-created, noting that the entry was not justified by exigency, but occurred as the result of Brown’s permission and that the police’s action was not tantamount to a search for evidence, but was instead a superficial check to dismiss a reasonable suspicion of danger and secure safety.

As a final matter, the judge upheld the seizure of the phone and drugs, which he found to have been in plain view and thus excepted from the warrant requirement by Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971).

On appeal from this decision, we affirm substantially on the basis of the well-reasoned opinion of Judge Ravin. We add only that the protective sweep exception to the Fourth Amendment’s warrant requirement was extensively analyzed by a panel of this court in a decision issued after Judge Ravin’s opinion was placed on the record. See State v. Lane, 393 N.J. Super. 132 (App. Div.) certif. denied, 192 N.J. 600 (2007).

In that case, following an armed robbery of a Strauss Auto store by multiple black individuals and the identification of two cars in the vicinity of the robbery at the time that the robbery occurred, the police located one of the vehicles, parked in a residential driveway. Defendant, who was working under the hood of the car when the police arrived, was taken to headquarters for questioning. However, one officer remained at the premises. After looking through a gate into the yard of the house and discovering a headband similar to that described as having been worn by one of the robbers, the officer entered the yard and conducted a protective sweep of the area, which disclosed an automatic rifle under a couch in a shed.

In considering whether the protective sweep in Lane was valid, we noted that in Buie the Supreme Court had defined a protective sweep as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers and others.” Lane, supra, 393 N.J. Super. at 151 (quoting Buie, supra, 494 U.S. at 327, 110 S. Ct. at 1094, 108 L. Ed. 2d at 281). Although Lane was not arrested, we determined that:

an arrest should not be the sine qua non of a legitimate protective sweep and that to hold otherwise would place undue importance on the particular facts in Maryland v. Buie and show too little regard for the important public policy of insuring police safety. As the Supreme Court has observed, it is “dubious logic” to conclude that “an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it.” United States v. Knights, 534 U.S. 112, 117, 122 S. Ct. 587, 590, 151 L. Ed. 2d 497, 504 (2001). Adhering to this approach, we agree with the logic of those federal decisions that have determined that the validity of the warrantless sweep does not turn on the officer’s possession of an arrest warrant or the right to arrest, but turns instead on the officer’s right to be in a location that generates a reasonable articulable suspicion that the area to be swept “harbors an individual posing a danger” to those on the scene. Maryland v. Buie, supra, 494 U.S. at 337, 110 S. Ct. at 1100, 108 L. Ed. 2d at 288.


[Lane, supra, 393 N.J. Super. at 153.]


We further found that a determination of the legality of a protective sweep required consideration of whether the sweep occurred in a home, the lawfulness of the police’s presence, and whether the police had a reasonable articulable suspicion that the area to be swept harbored individuals posing a danger to them. Id. at 154. In this regard, we noted the Court’s observation in Buie that:

[U]nlike an encounter on the street or along a highway, an inhome arrest puts the officer at the disadvantage of being on his adversary’s “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.


[Lane, supra, 393 N.J. Super. at 154 (quoting Buie, supra, 494 U.S. at 333, 110 S. Ct. at 1098, 108 L. Ed. 2d at 285).]


In Lane, we determined that additional factfinding by the motion judge was required in order to resolve whether the seizure of the gun by the police officer had violated the Fourth Amendment. Id. at 156-58. We reach a different conclusion here. In the present case, we are satisfied that the police’s determination to go to the apartment to investigate the connection between its occupants and the murderers was both legal and reasonable, id. at 147, and that the judge’s conclusion that the police lawfully entered the apartment with Brown’s consent was based upon substantial evidence in the record, State v. Locurto, 157 N.J. 463, 470-71 (1999). We are further satisfied that the police acted in an objectively reasonable manner in determining to conduct a protective sweep of the premises. As Judge Ravin noted, a number of black males had recently performed two callously-inflicted felony murders, utilizing a gun. The murderers remained at large, and their weapon or weapons had not been recovered. And, as the result of the cell phone traces, there was a substantial reason to believe that the occupants of the apartment were somehow connected with the murderers. Further, upon entry into the apartment, it was clear that it was comprised of multiple rooms, the occupants of which could not be seen from the door. And finally, the sweep was limited in its scope and duration to a determination of whether additional persons were present on the premises. As Judge Ravin found, the drugs and phone seized during the course of the sweep were both in plain view.

Defendant additionally challenges the judge’s determination, following an additional hearing, to deny his motion to suppress the confession given to the police by defendant, in the presence of his mother,2 following the administration of Miranda3 warnings. In support of his position, defendant notes that there was no specific written indication on the Miranda warning form utilized by the police that he had knowingly waived his right to speak with an attorney before submitting to police questioning. Our review of the form, however, indicates that defendant initialed each of the individual rights accorded to him, and that both he and his mother signed the Miranda form. Moreover, defendant confirmed that he had been properly advised of his rights at the commencement of his confession, wrote on the form that the Miranda warnings had been “read out loud” to him, and placed his initials next to statements confirming that his mother was present when the warnings had been given and that he understood his rights. Under these circumstances, we decline to further address defendant’s argument, finding it to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).




1 Defendant was charged along with co-defendants Wali Williams, Michael Whitfield and Laquan Dwight. All moved for suppression of evidence and participated in the hearing on that issue, as did Shawn Upshaw, who was charged with first-degree drug offenses in a separate indictment.

2 Defendant was sixteen years old at the time of the crimes.


3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

April 16, 2009


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