A case argued Monday had the state Supreme Court probing the boundaries of the “community caretaker” and “emergency aid” exceptions to the warrant requirement for home searches.
How the justices rule in State v. Vargas, A-56-11, may draw sharper contours on when police, called for no other reason than to check on a tenant’s well-being, can shift their focus to illegal contraband and use it to prosecute.
That happened in the case of Cesar Albert Vargas, a normally reliable Vineland tenant whose protracted silence had led his landlord to fear for his safety and to call police. Admitted to the apartment by the landlord, police found controlled substances and arrested Vargas.
Cumberland County Superior Court Judge Benjamin Telsey said the search and seizure was improper and ordered the evidence suppressed. But the Appellate Division reversed, saying “the police conduct here was based initially upon a legitimate concern for defendant’s welfare and divorced from any criminal investigation … and … the scope of their search was limited to that reasonably designed to secure their articulated purpose.”
On Monday, Vargas’ lawyer, Cherry Hill solo Wayne Powell, asked the court to reinstate the original ruling. “Judge Telsey was not satisfied that this was an articulable reason for the entry,” he said.
Justice Anne Patterson raised whether the analysis would be different if a relative had contacted the landlord, Henry Olaya, saying Vargas had not been heard from in some time.
Powell conceded that those factors might alter the outcome. “Olaya would have a basis to enter,” he said. “There would be another person with familiarity of [Vargas'] routine.”
Justice Barry Albin wondered why the police did not obtain a warrant, since there appeared to be no emergency.
Powell said he did not believe a judge would authorize one in those circumstances. “Mere absence isn’t sufficient to establish probable cause,” he said.
Deputy Attorney General Steven Yomtov urged the court to uphold the Appellate Division. “The police conduct here was entirely reasonable,” he said. “The defendant was viewed as a potential victim. The landlord was concerned for defendant’s well-being.”
Albin asked Yomtov why the police did not seek a warrant when Olaya contacted them.
“You have to have probable cause,” Yomtov replied. “There was no evidence of criminality at the time.”
Albin suggested that the state was asking the court to create another exception to the warrant requirement when there are no exigent circumstances, no public safety question and no emergency aid need.
Yomtov denied that. “You have to look at the facts of this case. The landlord called 9-1-1. He was showing concern because there was something wrong here.”
Chief Justice Stuart Rabner said the court needed to preserve the sanctity of the home and a person’s right against unreasonable searches.
“Protection of life always outweighs the right to privacy,” Yomtov said. “Where is the police misconduct in this case? This is what we expect the police to do.”
Vargas lived in an upstairs apartment owned by Henry Olaya, who described Vargas as a good tenant who paid his rent on time, was quiet, kept to himself and maintained a clean apartment. On March 2, 2008, Olaya placed a notice in each of his tenants’ mailboxes, including that of Vargas, informing them that he would be entering their premises to allow an appraiser to evaluate the property. Three days later Olaya entered the apartment with the appraiser. Defendant was not home at the time.
When Vargas had failed to pay his rent by that day, Olaya made several attempts to contact him by phone and in person, all of which were unsuccessful.
Two weeks later, on March 17, Olaya went to the building with his girlfriend to do some spring cleaning. He again attempted to contact Vargas by phone and by knocking on the door of his apartment, but received no answer. Olaya spoke with some of the other tenants in the building, who said they had not seen or heard Vargas coming in or out of the building for a couple of weeks and that his car had not been moved for several days or weeks. There was a bag of trash left outside Vargas’ apartment on the front porch. His car was covered in pollen, and the back tires had deflated. Vargas’ mailbox was filled with mail, including the letter Olaya had dropped off on March 2.
Olaya then called the police. Three police officers from the Vineland Police Department responded to Olaya’s emergency call and the landlord again told the officers about his concern, stating he had not heard from Vargas for more than two weeks and that it was unusual for his calls to Vargas to go unanswered.
The officers knocked on the door to Vargas’ apartment and identified themselves as police officers. There was no response. The officers looked through the windows of the apartment, but could not see much inside. At that point, the officers decided an entry was necessary to determine if there was a body in the apartment.
Olaya used his keys to open the back door and entered the apartment with the officers. The officers called out for Vargas and identified themselves. They searched the rooms for signs of Vargas but did not open any drawers or containers. They did open closets because of the possibility that a person could be inside. In the living room, the officers observed a glass jar about six to eight inches high with green vegetation inside that appeared to be marijuana. The officers saw nothing in the apartment to indicate foul play.
Without being asked to do so, Olaya opened one of the drawers in the kitchen and found two canning jars full of marijuana. Upon seeing the marijuana, one of the officers asked everyone to leave the apartment.
The officers then left and obtained a search warrant for the apartment. The search conducted resulted in the seizure of various items, including $47,001 in U.S. currency, a shotgun, a rifle, ammunition, two ballistic vests, a clear plastic bag containing white powder, eight mason jars with pot, two digital scales, and measuring cups and pots with white powder residue.
The police then learned of the reason why Vargas has not been around for a while. He had been in custody since March 6 after being arrested by the State Police in connection with another investigation.