On July 7, 2009, the New Jersey Supreme Court decided State v. Anthony Bogan, Docket No.: A-7-08. In the case, the Court considered whether, during an investigation into an alleged sexual assault, a police officer’s warrantless entry into an apartment was justified under the community caretaking exception to the warrant requirement.

In 2004, a receptionist at Passaic Mill Work noticed a young girl outside on the sidewalk crying hysterically. The receptionist invited the girl inside. The girl’s name was Kathleen and she was fourteen years old. Kathleen stated that a person who was supposed to drive her to school had molested her. The police were called and Kathleen informed the officers that she had been offered a ride by a male family friend, later identified as Defendant Anthony Bogan. Instead of taking her to school, Bogan drove Kathleen to an apartment in Clifton, where he lured her into a second-floor apartment and molested her. Kathleen gave a description of Bogan that included his race, age, height, and clothing, and told the officers that while she was inside the apartment a young boy named Wally was there.

Accompanied by Kathleen, three officers proceeded to the apartment. On their arrival, they found parked in front a gray Audi, which Kathleen identified as the car driven by Bogan. The officers rang the bell to the second-floor apartment. They heard an adult-sounding male voice yell from inside the apartment, “Who is it?” The officers identified themselves as police. Wally, who was approximately twelve years old, answered the door in his pajamas. The officers followed Wally up the stairs toward the apartment, asking him if he was home alone. Wally’s response that no one was home was inconsistent with the adult male voice that had responded when they rang the doorbell. At the top of the stairs, with Wally inside the apartment and the officers on the landing outside the doorway, the conversation continued. When officers asked the whereabouts of Wally’s mother, he gave conflicting answers and seemed nervous. The officers thought that Wally might be in danger. When the telephone rang in the kitchen, which was located immediately inside the apartment, Wally picked up the receiver and told the officers that his father was on the phone. One of the officers asked Wally if he could speak with his parent, and Wally responded “certainly.” The officer walked a few steps into the apartment and was handed the receiver by Wally. While on the telephone, the officer was able to see into a bedroom where Bogan was lying on the bottom level of a bunk bed. Bogan fit the description given by Kathleen, and the officer motioned for the other officers to enter the apartment.

An officer read Bogan the Miranda warnings. Bogan identified himself as “Anthony Green.” Another officer, who was on the telephone with Wally’s mother, was told that Anthony Bogan was supposed to be caring for Wally. Upon further questioning, Defendant stated that Bogan was his “maiden name.” While communicating with headquarters, the officers learned that there were multiple arrest warrants for Anthony Bogan. 

 

Defendant was handcuffed and again read his Miranda rights. As he was led from the apartment, Defendant admitted that he had given Kathleen a ride to the apartment in the gray Audi.  He denied touching her, however, and added that he thought she was eighteen years old. Defendant was charged with luring or enticing a child, criminal sexual contact, hindering apprehension, and endangering the welfare of a child. He moved to suppress the statements he made to the police, claiming that because the officers entered the apartment without a warrant, they engaged in an unreasonable search and seizure. Bogan claimed also that he did not knowingly and voluntarily relinquish his Miranda rights.

The trial court denied Defendant’s motion to suppress on both grounds. The court held that the officers were justified in entering the apartment based on the exigent circumstances and community caretaking exceptions to the warrant requirement. Thereafter, a jury convicted Bogan on all charges.

The Appellate Division disagreed with the trial court, suppressed Bogan’s inculpatory statements, and ordered a new trial. It concluded that the police, armed with probable cause, approached the apartment for the purpose of conducting an investigation and should have secured a search warrant before entering the premises. It also held that the issuance of Miranda warnings before Bogan made his incriminating statements did not break the causal chain of events precipitated by the officers’ illegal entry. This appeal ensued.

The Supreme Court held that the police officer’s warrantless entry into the apartment for the purpose of taking the telephone from an unattended child to speak with his parent was justified by the community caretaking doctrine because the officer had a duty to identify a responsible adult for the child to ensure his safety. Because the officer was lawfully on the premises when he observed in plain view Defendant, who fit the suspect’s description, he had a right to direct his fellow officers to question the Defendant. In addition, the Court held that Defendant’s Mirandized statements in response to questioning were properly admitted at trial. As such, the Court reversed the judgment of the Appellate Division and reinstated the convictions.

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Photo of Donald C. Barbati Donald C. Barbati

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault. In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.