NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A

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STATE OF NEW JERSEY,

Plaintiff

- Respondent,

v.

DANIEL MORDENTE

, a/k/a KEIS EVAN

HAMWAY, DANIEL MORDENT,

Defendant

- Appellant

.

______________________________ _____ __

Submitted December 2, 2015

– Decided

Before Judges Fuentes

, Koblitz and Gilson

.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No. 12

-

06

- 0509.

Triarsi, Betancou rt, Wukovits & Duga n, LLC,

attorneys for appellant (Steven F. Wukovits,

on the brief).

Grace H. Park, Acting Union County Prosecutor

, attorney for respondent (Stephen K. Kaiser,

S pecial Deputy Attorney General/ Acting

Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

After losing a motion to suppress evidence of numerous

marijuana plants growing in his basement, defendant Daniel March 2, 2016 APPROVED FOR PUBLICATION

March 2, 2016

APPELLATE DIVISION2

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Mordente 1 pled guilty to third

- degree possession of marijuana

plants with the inte nt to distribute within 1000 feet of a school,

N.J.S.A. 2C:35

- 7. The first

- degree charge of operating a marijuana

production facility, N.J.S.A. 2C: 35

- 4, and three other related

lesser drug charges were dismissed. Defendant was sentenced to

probation for five years with six hundred hours of community

service. He now appeals from the denial of his motion to suppress.

We affirm based on the State's ri ght

, as part of its community

caretaking function, to search a home for a missing person in an

emergency

.

The testimony at the suppression hearing reveals the

following facts. A Plainfield police officer went to defendant's

home at approximately 8:25 a.m

. on February 8, 2012, in response

to defendant's report that his sixty

- five year old mother, who

suffers from dementia, was missing since 11:30 p.m. the night

before. Six months earlier this officer had received a similar

report and on that occasion defe ndant's mother was later found

approximately eight miles away. When the officer arrived one of

the mother's caretakers was present at the home. Defendant was

out searching for his mother with a different caretaker. He was

called to the home, arriving te n minutes later. Defendant allowed

1 The co

- defendant did not participate in this appeal and we were

provided no information regarding the result of charges against

him.3

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the officers to enter, and signed a police missing person report.

Defendant was "distraught and frantic." He reported to the police

officer that he had already searched the home, and then left to

continue looking for h is mother.

Approximately one hour later, after entering the missing

person report in the National Crime Information Center (NCIC) data

base 2 at headquarters, the officer returned to the home where he

met the Union County Sheriff's Department K

- 9 unit. They asked

the caretaker for a piece of clothing belonging to the missing

woman to acquire her scent and also received permission from the

caretaker to enter the house to search it pursuant to the Sheriff's

Department missing person protocol.

Sheriff's O fficer Ryan Wilson testified that he had served

as a K

- 9 handler with the Union County Sheriff's Office for five

years. He had participated in more than fifty searches for missing

persons

. He testified: "Part of my initial investigation for all

missing p ersons cases is to actually

- - I check the home myself,

areas where people could hide, areas that may have been overlooked

2 The NCIC maintains "a computerized database of criminal justice

information available to law enforcement agencies nationwide."

State v. Sloane

, 193 N.J. 423, 433 (2008). According to the

Federal Bureau of Investigation website, "NCIC helps criminal

justice professionals apprehend fugitives, locate missing persons,

recover stolen property, and identify terrorists." National Crime

Informati on Center

, FBI.gov, https://www.fbi.gov/about

us/cjis/ncic/ncic (last visited Dec. 8, 2015). The NCIC apparently

assisted in locating defendant's mother.4

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by a family member because they're distraught or upset at the

time." He also testified to three specific instances where he

located a missing person inside the home after family members had

indicated that the house was clear. He specifically described an

incident where an elderly woman in a nursing home was found behind

a locked door.

During his search of the home, which was done wi thout a dog,

Wilson began on the top floor. Wilson found the basement door

locked. The caretaker did not have a key, but the Plainfield

police officer was able to "pop open" the door using his "pen

light." Both officers testified that after the door was opened

they smelled the strong odor of marijuana. They descended the

stairs and looked around the base ment, finding several marijuana

plants, but not the missing woman. A warrant was obtained and the

plants were seized. The missing woman was located at Pennsylvania

Station in Newark sometime after 10:00 a.m. that morning, after

the officers entered the basement.

The motion judge found that the police had "an objectively

reasonable basis to believe that immediate police action was

necessary based on [] defendant's emergency call to police." The

judge also found it relevant that defendant had left the initial

officer in the home in the company of the caretaker, and determined5

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that the officers were not restricted to a search outside of the

home because defendant thought his mother was not in the home.

On appeal defendant raises the following issues:

POINT I : THE TRIAL COURT ABUSED ITS DISCRETION

WHEN IT DENIED THE DEFENDANT'S MOTION TO

SUPPRESS.

A. REASONABLENESS STANDARD.

B. COMMUNITY CARETAKING FUNCTION.

C. EXIGENCY STANDARD.

POINT II : THE FRUIT OF THE POISONOUS TREE

DOCTRINE SHOLD BAR ALL EVIDENCE SEIZED AS A

DIRECT CONSEQUENCE OF THE UNLAWFUL POLICE

ACTIVITY.

"We consider the factual findings of the trial court, premised

upon detailed testi mony elicited in a lengthy suppression hearing,

in accordance with a deferential standard of review." State v.

Rockford

, 213 N.J. 424, 440 (2013). It is well established that

we "should defer to trial courts' credibility findings that are

often influence d by matters such as observations of the character

and demeanor of witnesses and common human experience that are not

transmitted by the record." State v. Locurto

, 157 N.J. 463, 474

(1999). Moreover, in reviewing a trial court's determination, we

are car eful not to substitute our decision merely because we might

have concluded differently. State v. Elders

, 192 N.J. 224, 244

(2007).6

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Our Supreme Court recently held that "the community

caretaking doctrine is not a justification for the warrantless

entry and search of a home in the absence of some form of an

objectively reasonable emergency." State v. Vargas

, 213 N.J. 301,

305 (2013). In Vargas

, a landlord called the police after a tenant

failed to pay rent, his mail piled up, and his car was left unmoved

a nd unattended in the driveway for two weeks. The police conducted

a "welfare check" during which illicit drugs were discovered. Id.

at 307

- 08. The Court determined explicitly that "[w]ithout the

presence of consent or some species of exigent circumstanc es, the

community

- caretaking doctrine is not a basis for the warrantless

entry into and search of a home." Id. at 321.

Neverth e less

, in Vargas

, Justice Albin also explained :

In that regard, this is unlike the case of a

close family member whose housebound elderly

relative is not responding to telephone calls

and knocks on the door. Nor is this like the

case of a diabetic or infirm neighbor who is

not seen carrying out routine daily activities

and who is not answering the door or the

telephone. We need no t describe the myriad

circumstances that might give rise to an

objectively reasonable basis to believe that

an emergency requires immediate action for the

safety or welfare of another.

[ Id. at 327.]

Here, the motion judge found there was an emergency; a woman

suffering from dementia was missing. The motion judge also

credited the testimony of Sheriff Officer Wilson that it was7

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established protocol to search the home in every missing person's

case to ensure that the individual had not been overlooked b y a

distraught relative. Importantly, there was no evidence that any

officer had an ulterior motive to search the home for illegal

activity. The sole reason the officers were at the home was at

defendant's urgent request to help find his mother. Defenda nt had

also given no indication that he did not want his home searched.

To the contrary, defendant had previously invited an officer into

the home and his actions reflected a paramount desire to find his

mother as soon as possible. Thus, all the facts es tablish that

the sanctity and privacy of this home was not being invaded;

rather, the sole object of the search of the home was to find a

missing person as part of law enforcement's community

- caretaking

function.

Our dissenting colleague views the search o f the home as a

mechanical adherence to protocol rather than a response to exigent

circumstances. The facts demonstrate a true emergency where time

was of the essence. Defendant's mother suffered from dementia,

she had been missing overnight in the winte rtime, and defendant

himself was clearly extremely worried about her welfare. The

possibility that the basement door had been locked by her after

she entered the basement, and that she had then fallen down the

steps was posited by the motion judge and acc epted by counsel as8

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a distinct possibility. The fact that Officer Wilson was following

established protocol in searching the home top to bottom does not

undercut the conclusion that he was responding to an emergency.

Indeed, it is often the case that sta ndard police protocols are

designed specifically to respond to emergency situations. See id.

at 315.

T his factual scenario fulfills the " objectively reasonable

basis to believe that an emergency requires immediate action for

the safety or welfare of ano ther." Ibid. The fact that more

than an hour had elapsed from the time of the initial report to

the actual search reflects the practical realities of calling in

a specially

- trained missing persons unit, not a reduction in the

emergent nature of the situation. While the dissent's affirmation

of the unique and powerful protections afforded to the home by the

Fourth Amendment, State v. Wright

, 221 N.J. 456, 467 (2015)

, is

unassailable, in this instance the situat ion presented the type

of crisis requiring immediate action of emergency responders who

specialize in finding missing persons. The community

- caretaking

function of the police was not used as a pretext to search the

home. The officers did not detect the odor of marijuana emanating

from the basement until they opened the basement door. To

defendant's credit, his concern for his mother overcame his fear

of law enforcement involvement, and he called the police to assist9

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in finding his mother. The police di d their best to locate his

mother as they were trained to do, but also inadvertently happened

upon defendant's illegal drug activity. Defendant's mother was

found, as were his marijuana plants.

Affirmed.FUENTES, P.J.A.D., d issenting

Applying the community

- caretaking doctrine, my colleagues

in the majority found the warrantless search of defendant's home

was constitutionally permissible. I respectfully disagree.

The majority's legal conclusion is gro unded on the finding

by the motion judge that the search conducted by Sheriff's

O fficer Ryan Wilson, following a missing person protocol adopted

by the Union County Sheriff's Department, was lawful. The

record shows, however, that the search Wilson conduc ted pursuant

to this alleged protocol was not rationally related to the facts

known to the police at the time. Rather, Wilson robotically

carried out a room

- by

- room search of defendant's entire

residence, including the first floor and kitchen area where

P lainfield Police Officer Kevin Egbert and the caretaker were

present. Wilson conducted this search without the assistance of

his K

- 9 partner whom, by Wilson's own description, was

especially trained to detect the scent of missing persons.

Indeed, the dog never entered defendant's home nor was it given

an article of clothing previously worn by defendant's mother to

acquire her scent.

In my view, the highly intrusive, wide ranging search

conducted by Sheriff 's O fficer Wilson long after defendant had2

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called the police to report his mother was missing from the

home

, is the antithesis of the narrowly tailored, fact

sensitive, exigent

- circumstances

- driven scenarios our Supreme

Court envisioned in State v. Vargas

, 213 N.J. 301 (2013). Under

the controlling fact s of this case, the missing person protocol

adopted by the Union County Sheriff's Department would license

the type of "roving commission to conduct a nonconsensual search

of a home" the Court rejected in State v. Edmonds

, 211 N.J. 117,

143 (2012). I reac h this conclusion based on the testimony of

the two law enforcement officers the State called as witnesses

in the suppression hearing.

City of Plainfield Police Officer (now Detective) Kevin

Egbert testified that, at approximately 8:25 a.m., on February

8

, 2012, he responded to defendant's home on Woodland Avenue to

investigate a report of a "missing elderly female." On his

arrival, he was greeted on the front porch of the residence by a

woman who identified herself as the missing woman's caretaker.

Offi cer Egbert asked the caretaker for the location of the

missing woman's son (defendant) "because [he] was the one [who]

placed the call, according to [the] dispatcher." The caretaker

told Officer Egbert defendant "was out looking for his mother."

In re sponse to his questions, the caretaker told Officer

Egbert that she had arrived at "around 8 o'clock [a.m.],"3

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chatted briefly with defendant, and "then they went upstairs to

look for the mother and she was missing." Officer Egbert's

testimony does not ma ke clear how much time transpired during

his conversation with the caretaker. Sometime thereafter

Officer Egbert called defendant using the caretaker's cellphone

and spoke to him to gather the information necessary and obtain

his authorization "to file a Missing Person's Report."

Defendant eventually returned to the house while Officer Egbert

was still there. Based on the following testimony from Officer

Egbert, I infer Officer Egbert did not enter defendant's home

until defendant arrived accompanied by a woman who appeared to

be the senior caretaker.

Q. Okay. At

. . . some point, did you speak

to Mordente?

OFFICER EGBERT: Yes. Due to the fact that

we had to file a Missing Persons' Report, our

protocol is to contact the person that's

calling us or the responsible party and sign

off on what's called an NCIC 1 Missing Persons

Report

.

Q. And could you explain how that

. . . took

place?

1 The National Crime Information Center [NCIC] " helps criminal

justice professionals apprehend fugit ives, locate missing persons,

recover stolen property, and identify terrorists. It also assists

law enforcement officers in performing their official duties more

safely and provides them with information necessary to aid in

protecting the general public. " National Crime Information

Center

, Federal Bureau of Investigation,

https://www.fbi.gov/about

- us/cjis/ncic (last visited February 4,

2016.)4

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- 13T1 OFFICER EGBERT: I contact

- - I asked [the

caretaker] if she could call him on the cell

phone, which she did, and I spoke to

[defendant] utilizing her cell phone and

advised him that he needed to come back so we

can get this re

- - investigation started.

. . . .

OFFICER EGBERT: After Mr. Mordente entered

-

- got to the house, we went inside, went to

the kitchen area, and we began talking. I

advised him that we needed to get a signature

because the report can't be filed and we can't

do our job to look for further for her unless

we have him signed off on. He gave me a brief

examp

- - brief description of what she was

wearing last night

- - or the night before,

signed off on the form. He advised me around

11 o'clock he put her to bed and that was the

la st time that he actually saw her.

. . . .

Q. Okay. And when Mr. Mordente returns to the

house

. . . did he have

- - was anyone with

him?

OFFICER EGBERT: Yes. Ann Roselle.

Apparently she might be a senior caretaker or

in charge of [the daytime caret aker].

Q. And at some point, did you inquire as to

whether Mr. Mordente had looked for his mother

in the house?

OFFICER EGBERT: Yes. During the time talking

to him I stated, have you searched the house?

He said, yes, I had. And that was it. That's

all I remember about that.

Q. Okay. So, after you spoke to Mr. Mordente

and you

- - and you got him to sign the form,

what did you do at that point?5

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Mordente sign it, he was very distraught and

frantic and he just said, I'm going back out

looking for her.

. . . At that point, I

finished writing up my notes on my report and

I left the house

.

Q. Where did you go?

OFFICER EGBERT: I went to headquarters to get

that report into the system.

. . . .

After I got back to headquarters and finished

that paperwork

- - you know, sign off on it,

make sure all the blocks were filled in that

I had information to, I give it to the service

person, they enter it into the computer

system. At that time, I started writing my

repor t.

Sergeant Richards, my immediate supervisor,

advised me that the K

- 9 Unit was located and

they're in route back to [defendant's

residence] to start the search for [his

mother]. At that time, I packed up my stuff

and responded back to the house.

Q. And Detective, approximately how far would

you say headquarters is from [defendant's

residence]?

OFFICER EGBERT: About five minutes.

Q. Okay. And could you describe the situation

when you returned to [the residence]?

OFFICER EGBERT: I responded there a nd I

waited for the Union County Sheriff's Officers

to show up. Once they arrived, we went back

to the door

, knocked on it, [the caretaker]

was still there. We advised her that we needed

a piece of clothing from [defendant's mother]

so the dog can take a sniff and start

searching

. And the Sheriff's Officers asked6

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that's their protocol

.

[(emphasis added).]

Officer Egbert's testimony leaves no doubt about the

absence of the indispensable element that must b e present to

justify the warrantless entry of a home based on the community

caretaking doctrine

- exigency

. As Justice Albin made clear in

Vargas :

Police officers serving in a community

caretaking role are empowered to make a

warrantless entry into a home under the

emergency

- aid exception to the warrant

requirement. Under the emergency

- aid

doctrine, a police officer can enter a home

without a warrant if he has "'an objectively

reasonable basis to believe that an emergency

requires that he provide immediat e assistance

to protect or preserve life, or to prevent

serious injury'" and there is a "'reasonable

nexus between the emergency and the area or

places to be searched.'" In other words, "if

police officers 'possess an objectively

reasonable basis to belie ve' that prompt

action is needed to meet an imminent danger,

then neither the Fourth Amendment nor Article

I, Paragraph 7 demand that the officers 'delay

potential lifesaving measures while critical

and precious time is expended obtaining a

warrant.'" Ind eed, the rationale of the

emergency

- aid exception is informed in large

measure by the community

- caretaking

responsibilities of government officials

. . . .

[ Vargas

, supra , 213 N.J. at 323

- 324 (internal

citations omitted).]

Officer Egbert's testimony desc ribed the execution of the

Plainfield Police Department's established protocol for7

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responding to a report of a missing person. He was not

dispatched to defendant's mother's residence to provide

emergency aid; he was there to gather information to complete a

written report that is thereafter inputted into the NCIC

database. Officer Egbert candidly testified that he accepted

defendant's representation that he had searched the entire

residence to confirm his mother was not in the house before

calling the pol ice to report her as a missing elderly person

with cognitive impairments.

Officer Egbert also made equally clear that the Sheriff's

Department's K

- 9 unit was there to obtain an article of

defendant's mother's clothing "so the dog can take a sniff and

sta rt searching." The Sheriff's request to search the home was

a mere formality, a mechanical adherence to the Sheriff's

Department's protocol untethered to any evidence that indicated

the responding officers actually believed defendant's mother was

inside t he house. The foll owing tes timony from Sheriff's

O fficer Wilson unambiguously supports this conclusion.

SHERIFF'S OFFICER WILSON: Upon our arrival,

our

. . . standard is to obtain information

regarding the victim. We'll obtain clothing

description, physical description. From there

we'll get a last time seen, whereabouts. If

it's a house, in a case like this and the

other cases of a missing person, we'll usually

ask to gain entry to the residence, again, to

search the residence because of past cases8

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located within the residence.

Q. Did you become aware

. . . the ti me

[defendant's mother] was last seen?

SHERIFF'S OFFICER WILSON: Yes, I was.

Q. And what was that time?

SHERIFF'S OFFICER WILSON: I believe

. . . she

was last seen around 8 a.m. that morning or

-

- I'm sorry. She was last seen the night

prior around

- - I don't have the last time.

. . . .

[After attorneys' conferred off the record,

the prosecutor apprised the motion judge he

was "going to move on."]

Q. Do you remember how long she had been

missing for at that point, even if you don't

remember the exact time? Approximately how

long it had been.

SHERIFF'S OFFICER WILSON: At the time of our

arrival at approximately 9:30 [a.m.], we were

advised that it was noticed that she was

missing since approximately 8 a.m., 8:20 a.m.

that morning. So

. . . rou ghly an hour and

change by the time we arrived on scene.

. . . .

Q. Okay. And what did you do after you met

with Officer Egbert?

SHERIFF'S OFFICER WILSON: After we met with

Officer Egbert, again, we

. . . obtained a

description, last known location, b asically

she was last see within the confines of the

residence. And roughly when she went missing.

And that's what we obtained upon initial

arrival.9

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. . . did you do after you

had that information from Officer Egbert?

SHERIFF'S OFFIC ER WILSON: After we had this

information, then

. . . we went into our

- -

our usual procedure where we would go in,

speak to someone in the house, if anyone was

there, and check the residence.

Q. Now at that point, were you concerned about

the safety of [defendant's mother]?

SHERIFF'S OFFICER WILSON: Yes, I was.

Q. [H]ow did the search for [defendant's

mother] proceed?

SHERIFF'S OFFICER WILSON: Upon entry into the

home, I start usually at the top down. So

I'll go to the second floor first and I'll

clear the

. . . the second floor and then work

my way down. It's

. . . not a search

. . . in a sense

. . . under every nook and cranny.

It's

. . . places a person would hide

. Under

beds, in closets, behind shower curtains,

things of that nature.

. . . .

And upon completing all these areas on the

second floor, I then move down to the first.

Q. When you were

. . . conducting that search,

were you

. . . looking for

. . . did you

suspect any criminal activity?

SHERIFF'S OFFICER WILSON: No. I did not.

Q. Now, what happened after you went to the

second floor?

SHERIFF'S OFFICER WILSON: After I went to the

second floor, the second floor was cleared of

all areas a person could possibly hide, an

adult person

. After completion of that

search, I moved down to the first floor.10

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SHERIFF'S OFFICER WILSON: There was negative

findings on the second floor for [defendant's

mother]. So, upon that

. . . I went down the

first floor and then completed the same

routine search there

. All common places; the

kitchen, the living room, closets. And also,

that was negative as well. [Defendant's

mother] was not located on the first floor.

Q. Okay. After you cleared the first floor,

then what did you do?

SHERIFF'S OFFICER WILSON: There was one d oor

on the first floor that was locked. We weren't

sure where that door led, whether it was to a

closet or what. We were able to gain entry

to that door. [ 2 ]

. . . We learned it was a

basement upon opening the door.

Q. And again

. . . at the point before you

opened that door, do you suspect anything

criminal?

SHERIFF'S OFFICER WILSON: Nothing at all.

Q. All right. So, what happens once you open

that

- - once Officer Egbert opens that door?

SHERIFF'S OFFICER WILSON: Once we open the

door and w e begin to go downstairs, we were

met with a strong odor, to be known

- - it was

marijuana.

Q. And did you continue to go downstairs?

SHERIFF'S OFFICER WILSON: Yes, we did.

Q. And what did you do in the basement?

2 The caretaker who was in the house during this entire search

did not have the key to this door. The Sheriff’s O fficer gained

entry by forcing the lock open.11

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- 13T1 SHERIFF'S OFFICER WILSON: In the ba sement we

searched all the areas, again, where a person

might hide. There was a lot of debris and

garbage and junk down there, for the most part

. . . scattered about. So, we checked behind

those areas in case she had fallen down there

or gotten hurt. A gain, she had been missing

quite some time, that we knew, so we weren't

sure what state she would have been in.

[(emphasis added).]

The room

- by

- room search described by Sheriff's Officer

Wilson is not part of the protocol of the K

- 9 unit. Sheriff's

Off icer Wilson later testified that after he completed the

search of the house, they went to defendant's mother's bedroom

on the second floor to retrieve an article of her clothing,

"namely pajamas." The dog especially trained for this task did

not enter the house at any time. Before taking any meaningful

action to find this cognitively impaired elderly woman, the

officers received a radio transmission that she had been found

in Newark, approximately fourteen miles from Plainfield.

Under these facts, the m otion judge found:

[Defendant's mother] was 65 years old at the

time of this incident. In addition, unlike

Vargas

, the police were aware that [she]

suffered from dementia and was, therefore, at

times not fully conscious of her actions and

surroundings. T he defendant clearly

acknowledged the urgency of the situation when

he departed from the home in order to search

for his mother, leaving the Officers in the

home with only the caretaker. Witnesses

allege that defendant grew agitated at the12

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begin searching for [his mother]

.

Therefore, given the circumstances here, the

police did have an objectively reasonable

basis to believe that immediate police action

was necessary based upon defendant's emergency

call to poli ce. While the police's knowledge

that [defendant's mother] did previously

wander away from home is relevant here

, it is

reasonable to check a door to see if it is

unlocked before you break it down. And here,

it was reasonable for the Officers to check

wi thin the home to verify that [defendant's

mother] was not in the immediate area before

continuing their search outward.

[(emphasis added).]

The motion judge's analysis and ultimate conclusion here

are irreconcilable with the Court's explication of the emergency

aid doctrine in Vargas

. I quote Justice Albin's emphatic and

unambiguous language in Vargas to highlight the inapplicability

of the c ommunity caretaking doctrine to the uncontested salient

facts of this case:

Under the emergency

- aid doctrine, a police

officer can enter a home without a warrant if

he has "'an objectively reasonable basis to

believe that an emergency requires that he

prov ide immediate assistance to protect or

preserve life, or to prevent serious injury'"

and there is a "'reasonable nexus between the

emergency and the area or places to be

searched.'"

[ Vargas

, supra , 213 N.J. at 323 (quoting

Edmunds

, supra , 211 N.J. at 132).]13

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Here, the motion judge noted the connection between

defendant's agitation with the slow pace of the police's

response and his decision to take matters into his own hand.

However, instead of fixing fault for this delay where it

belonged, on the lethargic response by the officers at the

scene, the judge uses defendant's sense of urgency to justify

the officers' warrantless search of his home. The room

- by

- room

search described by Sheriff's Officer Wilson was nothing more

than a perfunctory execut ion of an inapplicable protocol. The

Sheriff's Department was summoned to this scene because it was

expected it would use the K

- 9 Unit to aid in the search of

defendant's mother, not to conduct a room

- by

- room search of the

home that Officer Egbert was cl early capable of conducting if he

thought it was warranted. The fact that Officer Egbert

testified he believed defendant's representation that he had

searched the house before calling the police corroborates this

self

- evident observation.

In Vargas

, Just ice Albin explained the type of emergency

aid situations the Court envisioned would trigger the

application of the community

- caretaking doctrine by quoting then

Judge (later Chief Justice) Burger, in Wayne v. United States :

[A] warrant is not required to b reak down a

door to enter a burning home to rescue

occupants or extinguish a fire, to prevent a

shooting or to bring emergency aid to an14

A

- 5838

- 13T1 injured person. The need to protect or

preserve life or avoid serious injury is

justification for what would be otherwi se

illegal absent an exigency or emergency.

[ Vargas

, supra , 213 N.J. at 324 (quoting 318

F. 2d 205, 212 (D.C. Cir.), cert. denied

, 375

U.S. 860, 84 S. Ct. 125, 11 L. Ed. 2d 86

(1963)).]

Sheriff's Officer Wilson's robotic execution of the Sheriff's

Depart ment "missing person protocol" reflects none of the

exigency or urgency that justifies the highly intrusive, wide

ranging warrantless search of the residence that occurred here.

The record also shows defendant did not consen t to the search of

his home. " Without the presence of consent or some species of

exigent circumstances, the community

- caretaking doctrine is not

a basis for the warrantless entry into and search of a home. "

Vargas

, supra , 213 N.J. at 321.

I conclude by quoting Chief Justice Rabne r's recent

reaffirmation of the unique status a home has under our Nation's

and our State's constitutional jurisprudence:

As the Court has repeatedly observed, the

physical entry of the home is the chief evil

against which the wording of the Fourth

Amendme nt is directed.

The unique status of the home has been

recognized for centuries. And throughout our

nation's history, one of our most protected

rights

. . . has been the sanctity and privacy

of a person's home. Those interests "are

entitled to the highes t degree of respect and15

A

- 5838

- 13T1 protection in the framework of our

constitutional system."

The United States Supreme Court recently

reaffirmed the heightened status of the home

under the Constitution. The Court observed

that "when it comes to the Fourth Amendmen t,

the home is first among equals" and stands "at

the Amendment's very core."

This Court also recently emphasized the

preeminent position of a private residence

when it held that the community

- caretaking

doctrine, standing alone, could not justify a

warr antless search of a home.

[ State v. Wright

, 221 N.J. 456, 467 (2015)

(internal citations omitted).]

Because the search conducted here by the Union County

Sheriff's Department in conjunction with a Plainfield Police

Officer was not justifiable under the community

- caretaking or

emergency

- aid doctrine, I would reverse the order of the trial

court denying defendant's motion to suppress. Because my

colleagues in the majority have concluded otherwise, I

respectfully dissent.