A New Jersey appeals court found itself in a rare three-way split Wednesday over whether a dropped 9-1-1 call gave police authority for a warrantless entry into a private home.
The New Jersey Supreme Court has held that such circumstances create a presumption of an emergency, but the case of State v. Reece tested the application of that doctrine on the ground.
Judge Carmen Alvarez, writing for the majority, upheld Evan Reece's conviction for resisting arrest but reversed his conviction for obstructing administration of the law, finding that the police did not have a basis for pushing their way into his house after he refused to let them in.
Justice Alexander Waugh Jr. concurred, but laid out his view that the police were justified in seeking entry, and thus the warrantless search was lawful.
Nevertheless, he agreed that the obstruction conviction should be overturned, saying Reece's "exercise of his Fourth Amendment rights to refuse his consent ought not be criminalized."
The dissenter, Clarkson Fisher Jr., not only would have thrown out both convictions but chided Alvarez and Waugh for deciding not to publish an "important case" that "exposes the great dangers of a freewheeling view" of the community caretaker and emergency aid exceptions to the Fourth Amendment warrant requirement.
On Jan. 7, 2009, Pemberton Police Sgt. Peter Delagarza went to Reece's home in response to a 9-1-1 call that had disconnected before the caller spoke.
Reece denied making the call and showed Delagarza the call history on his cordless landline phone to prove it.
But after calling the dispatcher to confirm the source of the call, Delagarza, having noticed three cars in the driveway and claiming to have seen a bruise on Reece's hand, asked whether he was married.
Reece said it was none of his business and refused to let him in.
Delagarza summoned two patrolmen out front to the door and repeated his request for entry.
Reece slammed the door and tried to lock it as the officers sought to push their way in. In the ensuing scuffle, Reece head-butted Delagarza and was repeatedly punched in the face. One patrolman injured his knee.
Reece was charged with assault against both injured officers on top of the disorderly persons offenses of obstruction and resisting arrest.
Pemberton Judge Charles Shember convicted him of all but the assault on Delagarza.
Shember said Reece was not credible because he was too glib and denied resisting arrest or even being certain the officers were police even though they were in uniform.
Burlington County Superior Court Judge Thomas Kelly threw out the assault conviction for lack of intent but affirmed on the disorderly persons charges. He relied on the emergency aid doctrine in upholding the obstruction conviction.
Alvarez's opinion vacating that conviction stated that the doctrine did not apply because there was no noise or other sign giving Delagarza, who could see inside the house, sufficient basis to believe someone was at risk.
All he had was the dropped 9-1-1 call and Reece's lack of cooperation, which created a basis for concern but not for forced entry. Reece was entitled not to cooperate but had no right to resist arrest, Shember added.
Fisher, on the other hand, said Reece did have that right because he was not just resisting arrest but defending against a physically excessive one following an unlawful entry. Reece, an Air Force captain, was injured badly enough that he was taken off flight duty, Fisher noted.
Fisher saw the police as the aggressors in an illegal government invasion into a home, where Fourth Amendment protections are strongest. He called it "unconscionable that defendant could be convicted of resisting such an injustice" and said the majority view "encourages arrogant and lawless police conduct."
Further, Fisher thought Rule 1:36-2(d) mandated that the case be published. Because the other judges did not agree, "we will have left unsettled the troubling questions this case presented about a citizen's rights in these circumstances," he lamented.
Reece's lawyer, Justin Loughry of Loughry & Lindsay in Camden, says his client "had the temerity to believe in the civics lessons, in his rights and in the sanctity of the home."
He does not yet know whether Reece, who has an appeal of right, will pursue it.
Loughry also represents Reece in a civil rights suit against the officers and Pemberton. The action, before U.S. District Judge Joseph Irenas in Camden, was administratively terminated in 2012 until the criminal matter was resolved.
Salvatore Siciliano of Haddonfield, who is defending the case, says he expects it will be re-opened soon, unless Reece appeals.
The Burlington County prosecutor's office declines comment through spokesman Joel Bewley.
State v. Frankel, 179 N.J. 586 (2004), and State v. Edmonds, 211 N.J. 117 (2012), recognized that warrantless searches could sometimes be proper after dropped 9-1-1 calls. •