                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3953-18T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

RASHEED M. PHILLIPS,

     Defendant-Respondent.
______________________________

                    Argued on September 10, 2019 – Decided November 18, 2019

                    Before Judges Ostrer and Susswein.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Atlantic County,
                    Indictment No. 18-01-0074.

                    John Joseph Santoliquido, Assistant Prosecutor, argued
                    the cause for appellant (Damon G. Tyner, Atlantic
                    County Prosecutor, attorney for appellant; John Joseph
                    Santoliquido, of counsel and on the briefs).

                    Tamar Yael Lerer, Assistant Deputy Public Defender,
                    argued the cause for respondent (Joseph E. Krakora,
                    Public Defender, attorney for respondent; Tamar Yael
                    Lerer, of counsel and on the briefs).
PER CURIAM

      We granted the State's motion for leave to appeal from an order of the Law

Division, suppressing heroin seized by police from a hotel room defendant was

in at the time of his arrest. The trial court held that the police unlawfully entered

the hotel room to arrest defendant for a disorderly persons offense committed in

their presence. When defendant opened the door, the officers detected the strong

smell of burnt marijuana and saw a marijuana cigar on the bed. The trial court

only partly granted defendant's motion to suppress, however. Although the court

suppressed the heroin police observed only after they entered the room, it also

ruled that the marijuana cigar police observed while they were still in the

hallway was admissible under the plain view doctrine. Defendant did not seek

leave to appeal the court's decision to admit the marijuana cigar, nor has

defendant cross-appealed that ruling in the matter before us.

      We believe the trial judge's two rulings—suppressing the heroin and

admitting the marijuana cigar—are incongruous.            If there was sufficient

exigency to justify the police entry to retrieve the marijuana cigar from the bed,

as the judge appears to have found, then the officers would have been

legitimately present in the hotel room for that purpose when they observed the

heroin in an open suitcase next to the bed. We therefore remand the matter for


                                                                             A-3953-18T4
                                         2
the trial court to clarify and amplify its ruling with respect to the exigent

circumstances required to enter the room to secure the marijuana cigar. R. 1:7-

4(a).

                                       I.

        Defendant was charged by indictment with twelve drug offenses,

including two counts of possession of a controlled dangerous substance with

intent to distribute and two counts of conspiracy to distribute a controlled

dangerous substance. All charges against defendant are based on the drugs

seized in the hotel room.

        At the suppression hearing, the State presented testimony from two

Atlantic City police officers, both of whom the trial court found to be credible.

The salient facts derived from the officers' testimony follow. Police received

complaints about drug dealing occurring at the Rodeway Inn. The hotel manager

told police that there had been heavy foot traffic in and out of Room 107. Police

conducted surveillance and observed a male leave that room and walk to the

corner of Pacific Avenue, where he met with a female. Police observed what

they believed to be a hand-to-hand drug transaction. Police arrested the female

and found an illicit drug in her possession. Police then stopped the male and




                                                                         A-3953-18T4
                                       3
arrested him for drug distribution. He stated to police that he was staying in

Room 107 at the hotel.

      Two police detectives went to Room 107 to continue the investigation.

The detectives knocked on the door to the hotel room and announced their

identity as police officers. Defendant opened the door about "80 percent"—

enough to allow the officers to see into the room. The officers immediately

detected the "extremely overpowering smell of burnt marijuana." While still in

the hallway outside the room, the officers observed what appeared to be a hand-

rolled marijuana cigar on the edge of the bed.

      Detective Berardis testified that the room was "extremely small" and that

the door almost hit the bed on which the marijuana cigar rested. Despite the

room's small size, the detective could not tell whether any other person might

have been in the bathroom. The detective testified: "I mean management was

saying that people were coming inside and out all throughout the night. So yes,

there was a possibility there could have been more than one person inside."

      Detective Berardis entered the room to place defendant under arrest for

marijuana possession and use. At the moment of the police entry, defendant was

still inside the room in the doorway. Detective Berardis explained that, "I can't




                                                                         A-3953-18T4
                                       4
just extend my arms from outside the room and place him into custody. I have

to actually step into the room."

      As soon as he crossed the threshold into the room, the detective observed

a large suitcase in between the bed and the wall adjacent to the door. The

suitcase was open. The officer observed a sandwich bag filled with rice, which

the officer knew from training and experience drug dealers use to preserve

heroin. He also observed multiple bags of suspected heroin and a digital scale.

After making the arrest, the detectives secured the marijuana cigar, the bag of

rice, the bags of suspected heroin, and the scale. They did not search the room

for further evidence.

      Although the trial judge found the police witnesses to be credible, he did

not agree with Detective Berardis that it was necessary for him to enter the hotel

room to effect the arrest. The judge reasoned that the officers could have

directed defendant to step out of the room to complete the arrest process.

      The judge's oral opinion only briefly touched on the question of exigency

and did so in the context of the reasonableness of the police decision to arrest

defendant inside the hotel room rather than in the hallway. Specifically, the

judge stated,




                                                                          A-3953-18T4
                                        5
              Cleveland,1 Alvarez,2 and even the unpublished case
              that the State submits, Lawton,3 all speak to exigencies,
              destruction of evidence, and officer safety. None of
              these were present in this particular case, and officer –
              Detective Berardis could have very well, in my view,
              when he didn't ask Mr. Phillips to step out or simply
              cuff him in the threshold when he entered into the room
              he was not privileged to do so without a warrant absent
              some concern about destruction of evidence, which I
              didn't hear, or concern about officer safety, which I
              didn't hear.

The judge thereupon granted the defense motion "in part," ruling that "[t]he cigar

on the bed is in. Everything else [the heroin and paraphernalia] is out."

                                       II.

       We begin our legal analysis by noting the standard of review we apply.

We defer to the factual findings made by the trial judge if they are sustained by

sufficient credible evidence. State v. Harris, 457 N.J. Super. 34, 43 (App. Div.

2018) (citing State v. Sencion, 454 N.J. Super. 25, 31 (App. Div. 2018)). We

owe no such deference to conclusions of law, which we review de novo. Id. at

44 (citing Sencion, 454 N.J. Super. at 31–32).



1
    State v. Cleveland, 371 N.J. Super. 286 (App. Div. 2004).
2
    State v. Alvarez, 238 N.J. Super. 560 (App Div. 1990).
3
  State v. Lawton, A-3946-14T2 (App. Div. Jan. 13, 2017). We do not rely on
this unpublished opinion in making our decision. See R. 1:36-3.
                                                                            A-3953-18T4
                                             6
      To sharpen the focus of our analysis, it is appropriate to identify what is

not at issue in this interlocutory appeal. Defendant does not dispute that it was

lawful for police to go to the hotel room without a warrant and knock on the

door as part of their ongoing investigation. See generally State v. Hutchins, 116

N.J. 457 (1989) (discussing whether officers' warrantless entry into a home was

impermissible but not disputing that knocking on the door during an

investigation was allowed). Nor does defendant dispute that, while still outside

the threshold of the hotel room, police had probable cause to believe that

someone was smoking marijuana inside the room. Defendant does not dispute

police also had probable cause to believe that the cigar-shaped object lying on

the edge of the bed was contraband.

      Defendant acknowledges, in other words, that the "immediately apparent"

prong of the plain view doctrine was satisfied with respect to the marijuana

cigar. See Texas v. Brown, 460 U.S. 730, 737 (1983) ("Finally, it must be

'immediately apparent' to the police that the items they observe may be evidence

of a crime, contraband, or otherwise subject to seizure." (plurality opinion)

(quoting Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971))). Nor is it

disputed that once Detective Berardis entered the room, he immediately

recognized the heroin in the open suitcase. The gist of defendant's argument is


                                                                         A-3953-18T4
                                       7
that the detectives were not lawfully present inside the hotel room at the moment

that the heroin came into their view.

                                        III.

      The trial correctly determined—and both parties agree—that the critical

question in this case is whether police were justified in entering the hotel room

under the Fourth Amendment and Article I, Paragraph 7 of the New Jersey

Constitution. Given the small size of the room and the close proximity of the

open suitcase to the bed and door, it is clear that if the officers were authorized

to enter the room for any lawful purpose, the plain view doctrine would apply

to the heroin. In that event, the officers would have been "legitimately on the

premises" at the same moment that it was "immediately apparent" that the open

suitcase contained an illicit controlled dangerous substance.

      The question thus turns to whether any recognized warrant exception

applies to justify the police entry. The trial judge properly rejected the State's

argument that the search-incident-to-arrest exception justified entry.          The

critical issue is not whether the suitcase fell within the arrestee's wingspan, that

is, the area within which an arrested person could reach for a weapon or to

conceal or destroy evidence. See Chimel v. California, 395 U.S. 752, 763 (1969)

(explaining that when an officer makes an arrest it is reasonable for the officer


                                                                            A-3953-18T4
                                         8
to search both the arrestee and the area "within his immediate control").

Application of that doctrine in these circumstances would beg the question of

whether police were authorized to cross the threshold of the room to make the

arrest.

      The trial judge also properly rejected the State's argument that entry was

authorized by the statute that authorizes police to arrest a person for committing

a disorderly persons offense in their presence, N.J.S.A. 40A:14-152. That

statute alone cannot authorize police entry into a constitutionally protected

premises.4 Rather, entry must be authorized by a warrant or fall within a

recognized exception to the warrant requirement, such as consent (which is not

applicable here) or exigent circumstances.

                                       IV.




4
  We recognize that in certain circumstances, the privacy expectations in a hotel
room may differ from those in a home. Alvarez, 238 N.J. Super. at 571.
Recently, the New Jersey Supreme Court made clear in State v. Shaw that,
"[h]otel guests have a reasonable expectation of privacy in their rooms akin to
that held by property owners and tenants." 237 N.J. 588, 610 (2019). For
purposes of this interlocutory appeal, we deem the hotel room to be a
constitutionally protected premises that police were not privileged to enter
without an arrest or search warrant, defendant's consent, or a recognized
exception to the warrant requirement (in this case, exigent circumstances).


                                                                          A-3953-18T4
                                        9
      By suppressing the heroin but admitting the marijuana cigar, the trial court

seems to have made inconsistent rulings with respect to the officers' authority

to go into the hotel room based on exigent circumstances. The officers' entry

into the hotel room was either lawful or not, whether their purpose for entering

was to arrest defendant, to secure the marijuana cigar on the bed, or to

accomplish both enforcement objectives. 5

      Under the objective test of reasonableness that courts use to evaluate the

constitutionality of police conduct under both the Fourth Amendment and

Article I, Paragraph 7 of the State Constitution, it does not matter that the

detectives' stated purpose for entering the room was to make the arrest rather

than to seize the contraband observed from outside the room. See State v. Malik,

221 N.J. Super. 114, 120 (App. Div. 1987) ("[T]he fact that the arresting officer

perhaps did not harbor the state of mind hypothecated by the reasons which

provide the legal justification for his conduct does not vitiate the constitutional

efficacy of the action taken."). If Detective Berardis had lawful authority to

enter the room to secure the marijuana cigar, he would be legitimately present



5
   Although Detective Berardis expressly stated at the suppression hearing that
he entered the room for the purpose of taking defendant into custody, we think
it reasonable to infer from his testimony that he also had the purpose to retrieve
the marijuana cigar, which is exactly what he did after handcuffing defendant.
                                                                           A-3953-18T4
                                       10
inside the room for purposes of applying the plain view doctrine to the openly

exposed contraband he observed while inside the room. That would be true even

if Detective Berardis was not authorized to enter based solely on the State's

arrest argument.

      By denying defendant's motion to suppress the marijuana cigar under the

plain view doctrine it appears the trial court held that entry into the room was

lawful to effectuate the seizure of the cigar.6 Courts have long emphasized that

"plain view alone is never enough to justify the warrantless seizure of evidence.

. . . [N]o amount of probable cause can justify a warrantless search or seizure

absent 'exigent circumstances.'" Coolidge, 403 U.S. at 468. Rather, as Illinois

v. Andreas made clear, "[t]he plain view doctrine authorizes seizure of illegal or

evidentiary items visible to a police officer whose access to the object has some

prior Fourth Amendment justification."       463 U.S. 765, 771 (1983) (citing

Brown, 460 U.S. at 737); see also Horton v. California, 496 U.S. 128, 137 (1990)

(clarifying that for the plain view doctrine to apply, "not only must the officer

be lawfully located in a place from which the object can be plainly seen, but he

or she must also have a lawful right of access to the object itself"). Therefore,


6
  The trial court noted that "[t]he plain view insofar as the marijuana cigar is
concerned, is easy. . . ." We interpret this to mean that the judge was satisfied
that the seizure of the cigar was lawful.
                                                                          A-3953-18T4
                                       11
as the plain view doctrine requires a separate exception to the warrant

requirement to justify police entry into the protected area, the judge's ruling on

the marijuana cigar suggests the judge also found there to be sufficient exigency

to justify crossing the threshold of the room to gain access to the marijuana cigar

inside.

      The point simply is that the plain view doctrine by itself could not justify

the police entry to retrieve the marijuana cigar. Rather, to gain access to the

marijuana cigar, the State must prove another warrant exception. In view of this

principle of constitutional law, it would seem that the trial court concluded that

the exigencies facing the police justified the seizure of the marijuana. However,

the trial court did not explicitly indicate its reliance on the exigent-

circumstances exception, nor did it make clear findings on the exigencies

presented to the police when they viewed the marijuana cigar on defendant's

bed. Therefore, our concern at this point focuses on the tacit nature of the trial

court's conclusion with respect to the exigency needed to enter the hotel room

to retrieve the marijuana.

                                        V.

      Unlike in Alvarez, where the trial judge was not available to hear the

matter on remand, this case presents no need for us to exercise original


                                                                           A-3953-18T4
                                       12
jurisdiction to reconcile the trial judge's rulings to suppress the heroin but not

the marijuana cigar. 238 N.J. Super. at 563, 569. The trial judge is better

situated than we are to undertake the fact-sensitive inquiry into the exigencies

of the situation presented to the police with respect to the seizure of the

marijuana cigar. Accordingly, it is proper for the trial court in the first instance

to make a detailed finding on whether exigent circumstances made it objectively

reasonable for the police to enter the hotel room to retrieve the marijuana cigar.

      Although we leave it to the trial court to determine whether it was

objectively reasonable for police to retrieve the marijuana cigar without a

warrant, to guide the trial court on remand, we next review and summarize

several cases that explain the relevant factors to determine whether a particular

situation is sufficiently exigent to justify an intrusion upon Fourth Amendment

privacy rights. As we noted in Alvarez, while these so-called exigency factors

"can be articulated with disarming ease, their application to a concrete factual

pattern is not without difficulty." 238 N.J. Super. at 568. The test is "highly

fact sensitive." Ibid. (quoting State v. Lewis, 116 N.J. 477, 487 (1989)). We

further cautioned that, "[i]n making these judgments, our review" of the police

conduct "must be in a commonsense and realistic fashion." Id. at 569.




                                                                            A-3953-18T4
                                        13
      The New Jersey Supreme Court's decision in State v. Walker is

particularly instructive in describing the myriad of exigency factors that may

arise. 213 N.J. 281 (2013). In that case, police officers observed the defendant

"smoking a marijuana cigarette during a brief interaction with him, while the

apartment door was open." Id. at 284. The Court reiterated the well-established

principle that a warrantless arrest in an individual's home is presumptively

unreasonable and emphasized that the warrant requirement is strictly applied to

physical entry into the home because the primary goal of the Fourth Amendment

and Article I, Paragraph 7 of the State Constitution is to protect individuals from

unreasonable home intrusions. Id. at 289. The Court thus required a showing

of exigent circumstances to justify a warrantless home arrest. Id. at 291. The

Court further observed that "the application of the doctrine of exigent

circumstances demands a fact-sensitive, objective analysis."        Id. at 291–92

(quoting State v. DeLuca, 168 N.J. 626, 632 (2001)).

      To assist in that analytical process, the Court identified some of the many

possible exigency factors that might exist, including

            the degree of urgency and the amount of time necessary
            to obtain a warrant; the reasonable belief that the
            evidence was about to be lost, destroyed, or removed
            from the scene; the severity or seriousness of the
            offense involved; the possibility that a suspect was


                                                                           A-3953-18T4
                                       14
            armed and dangerous; and the strength or weakness of
            the underlying probable cause determination.

            [Id. at 292 (quoting DeLuca, 168 N.J. at 632–33).]

The Court added that "[t]he possible destruction of evidence is of great concern

when dealing with controlled dangerous substances because 'drugs may be easily

destroyed by flushing them down a toilet or rinsing them down a drain.'" Ibid.

(quoting Kentucky v. King, 563 U.S. 452, 461 (2011)).

      Turning to the particular circumstances in the case before it, the Court

deemed it to be a "significant event" that defendant appeared at the door smoking

a marijuana cigarette.    Id. at 295–96. "Defendant was standing inside his

apartment." Ibid. Nonetheless, defendant and the officers were within inches

of each other, leading the Court to conclude that, "[c]learly, defendant must have

been aware that the officers knew that he was committing an offense. Such

observations gave rise to probable cause and authorized the officers to arrest

defendant for the disorderly persons offense." Ibid.

      This first "significant event" is similar to the facts in the present case given

the overpowering smell of burnt marijuana emanating from a small hotel room.

It bears noting, however, that in Walker, there was a "second significant event"

attributed to the defendant's reaction to the police presence.           Id. at 296.

Specifically, Walker discarded the marijuana cigarette, retreated into his

                                                                              A-3953-18T4
                                        15
apartment, and attempted to close the door. Ibid. The defendant's evasive

conduct, the Court noted, compelled the police to act to prevent defendant from

disposing of the marijuana cigarette or eluding the officers. Ibid.

      Considering those circumstances, the Court found the officers' warrantless

entry was objectively reasonable, "justified pursuant to the exigent

circumstances exception to the warrant requirement." Id. at 298. In reaching

this conclusion, the Court emphasized that this exception "did not authorize a

broad search of the apartment, but justified a limited entry necessary to arrest

defendant for the disorderly persons offense and to retrieve the marijuana

cigarette." Ibid. (emphasis added).

      We recognize that the defendant's flight into the room made the situatio n

in Walker more urgent than what occurred in the present case. However, other

New Jersey precedents have sustained police entry into a home or hotel room in

circumstances where occupants did not engage in such provocative actions in

response to police appearing at their door.

      In State v. Stanton, police responded to a telephone call from an

anonymous informant reporting that drug dealing was occurring in a specific

room in a motel in Asbury Park. 265 N.J. Super. 383, 384 (App. Div. 1993).

Police went to the room, knocked on the door, and identified themselves as


                                                                        A-3953-18T4
                                      16
police officers. Id. at 385. One of the occupants pulled back the drapes to the

window, and from the vantage point of the hallway, an officer observed a plastic

bag containing a white powdery substance on top of a microwave oven in his

direct line of sight. Ibid. The officer recognized the substance as cocaine and

ordered the other officers to enter the room and seize the drugs. Ibid. Once

inside, the police found sixty bags containing cocaine, two handguns, a box of

ammunition, and a large knife. Ibid.

      The trial court suppressed the handgun and illicit drugs, holding that the

officers' warrantless entry was unlawful. Ibid. We granted the State's motion

for leave to appeal and reversed. Id. at 384. We held that although the exigent

circumstances that justified entry into the motel room were "police-created,"

they arose as a result of reasonable police investigative conduct. Id. at 386.

Implicit in that holding is that the circumstances were sufficiently exigent to

justify the entry.

      We reached a similar result in Alvarez. In that case, police received a

report of drug activity occurring on the fourth floor of a hotel in Atlantic City.

238 N.J. Super. at 563. When police went to the hotel to investigate, the desk

clerk advised them that there had been numerous telephone calls and "foot

traffic" to and from Room 402—the only room occupied on the fourth floor.


                                                                          A-3953-18T4
                                       17
Ibid. Four officers went to the room. Ibid. After knocking on the door, one of

the officers, in a falsetto voice, identified himself as the maid. Ibid. When the

door to the room was opened, police observed narcotics and drug paraphernalia.

Ibid. They then entered the room, seized the contraband, and arrested the

occupants. Ibid.

      The trial judge suppressed the evidence. Id. at 564. We granted the State's

motion for leave to appeal and reversed.       Id. at 572. We synthesized the

exigency factors discussed in earlier precedents and concluded that the State

"met its heavy burden of establishing that exigent circumstances existed and that

they were not impermissibly created by the police." Id. at 568–69.

                                       VI.

      As noted, we leave it to the trial court to undertake an initial assessment

of the exigencies presented to the police with respect to their lawful authority to

retrieve the marijuana cigar without first obtaining a search warrant. The court

in assessing exigency may consider (1) the limited degree of physical intrusion

into the room; (2) the seriousness of the offense for which they had probable

cause; (3) the drug distribution transaction involving a room occupant that




                                                                           A-3953-18T4
                                       18
occurred nearby shortly before the entry; 7 (4) the report of heavy foot traffic into

the room; (5) the possibility that someone else might have been in the bathroom;

(6) the inherent destructibility of the marijuana cigar; and (7) any other

circumstance the court deems relevant to the reasonableness of the police entry

to retrieve the marijuana cigar. If the trial judge on remand reaffirms his

decision that the entry to seize the marijuana cigar was objectively reasonable

under the Fourth Amendment and Article I, Paragraph 7 of the State

Constitution, then the detectives would have been legitimately inside the room

at the moment they observed the open suitcase next to the bed. In that event,

the heroin will be admissible under the plain view doctrine. 8

      Remanded for proceedings consistent with this opinion. We do not retain

jurisdiction.




7
  Although the observation of the marijuana cigar and smell of burnt marijuana
provided only probable cause for a disorderly persons offense, N.J.S.A. 2C:35 -
10(a)(4), for purposes of exigency analysis, the officers had a basis to believe
that Room 107 was associated with drug distribution activity.
8
  Alternatively, if the court makes a finding that there was insufficient exigency,
we leave it up to the trial court whether to reverse course and entertain a motion
to reconsider the marijuana's admissibility. See R. 4:49-2.
                                                                             A-3953-18T4
                                        19
