Opinion
DOCKET NO. A-2311-14T1
06-20-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD BAILEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-12-1466. Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After the judge denied his motion to suppress evidence seized without a warrant, defendant Richard Bailey pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5a(3). He was sentenced to a five-year term of imprisonment to run concurrently with any parole violation.
Defendant raises the following points on appeal:
POINT I
THERE WAS NO EXCEPTION TO THE WARRANT REQUIREMENT FOR THE OFFICER TO BE IN THE PROXIMITY OF THE EMERGENCY ROOM AND OBSERVE EMERGENCY TREATMENT OF THE UNCONSCIOUS DEFENDANT WITHOUT ANY EVIDENCE OF CRIMINALITY
POINT II
CONTRARY TO THE TRIAL COURT'S DECISION, THERE WAS NO PROBABLE CAUSE THAT THE BROWN FOLDED BAG CONTAINED DRUGS TO JUSTIFY APPLICATION OF THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT
POINT III
EVEN ASSUMING THAT THERE WAS PROBABLE CAUSE THAT THE SMALL BROWN FOLDED BAG CONTAINED DRUGS, THE ABSENCE OF A SEARCH WARRANT REQUIRES THE SUPPRESSION OF THE DRUGS
I.
New Brunswick police officer Branden G. Salter was the sole witness at the evidentiary hearing on defendant's motion to suppress. He testified that at approximately 11:00 p.m. on August 31, 2013, he was dispatched to a report of an unconscious man with head trauma lying in the middle of an intersection. When Salter arrived, a large crowd of onlookers had already gathered and several indicated that the man may have been intoxicated or under the influence of drugs. Salter observed that the man, later identified as defendant, "appeared to have some sort of head trauma." Shortly thereafter, emergency medical personnel arrived, placed defendant in an ambulance and transported him to the hospital. Salter followed.
At the hospital, defendant was taken into the trauma center on a stretcher, which Salter trailed. The large swinging doors to the trauma center were ajar as defendant was placed on an operating table and medical personnel attended him. From his vantage point in the hallway, Salter observed a small, brown bag fall from defendant's groin area to the floor as defendant's pants were cut away by those attending him. Salter explained that based upon his training and experience, he knew that individuals secrete narcotics in that area of their person. Salter described the package as being a tightly-folded brown paper bag, about the size of a candy bar. He immediately suspected it was "something of an illegal nature." Salter grabbed the bag from where it had fallen on the floor.
When Salter opened the package, he observed another smaller package wrapped with a rubber band containing small, separately stamped baggies. The smaller baggies, about one-inch in length, were stamped "Gucci" and contained a powdery substance. Salter believed that the baggies contained heroin and took custody of them. It was later determined that there were a total of fifty packets, or a brick, of heroin. Before leaving the hospital, staff informed Salter that defendant did not appear to have been the victim of an assault.
The State argued that Salter was lawfully outside the emergency trauma room when he saw the drugs fall from defendant's groin area. The State asserted that the seizure was permitted by the plain view exception to the warrant requirement. Alternatively, the State suggested that Salter was exercising his community caretaking responsibilities when he seized the drugs. Lastly, the State argued that the drugs were subject to inevitable discovery, since any evidence found during the medical treatment of a patient in the trauma room would eventually be turned over to hospital security and law enforcement.
Defendant argued Salter's community caretaking duties ended once defendant arrived at the hospital and began receiving medical treatment. Defendant also argued that the plain view exception did not apply, because Salter was "not in a legitimate position to see the evidence," and his observations violated defendant's privacy rights under the federal and state constitutions and the Health Insurance Portability and Accountability Act of 1996. Defendant additionally argued that even if Salter was in a lawful viewing area, it was not readily apparent that the brown bag was contraband or evidence of crime. Finally, defendant argued there was no exigency that relieved Salter of the obligation to obtain a search warrant before opening the bag.
The judge found Salter to be a credible witness and determined the facts in accordance with the officer's testimony. He rejected defendant's contention that Salter had no right to stand outside the trauma room and observe the treatment of defendant. As the judge reasoned, not knowing at the time whether defendant was the victim of an assault, "it [was Salter's] obligation and duty to make inquiry into what exactly created the trauma." The judge also found that Salter, "objectively didn't know if anything would be found of value, that there would be any evidence, that there'd [be] anything."
The judge also determined that when Salter noticed the package fall from the defendant's groin, and observed both its size and how the package was folded, he could have drawn a legitimate inference that the package was associated with criminal activity. Alternatively, the judge concluded Salter could reasonably have seized the paper bag as "something that might help him solve the incident, if it was a crime." The judge denied defendant's motion.
II.
When considering the ruling on a motion to suppress evidence, "[w]e conduct [our] review with substantial deference to the trial court's factual findings, which we '"must uphold . . . so long as those findings are supported by sufficient credible evidence in the record."'" State v. Hinton, 216 N.J. 211, 228 (2013) (quoting State v. Handy, 206 N.J. 39, 44 (2011)). "When . . . we consider a ruling that applies legal principles to the factual findings of the trial court, we defer to those findings but review de novo the application of those principles to the factual findings." Ibid. (citing State v. Harris, 181 N.J. 391, 416 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)).
"A police officer may seize evidence in plain view without a warrant if the officer is 'lawfully . . . in the viewing area' when he discovers the evidence, and it is immediately apparent the object viewed is 'evidence of a crime, contraband, or otherwise subject to seizure.'" State v. Keaton, 222 N.J. 438, 448 (2015) (quoting State v. Johnson, 171 N.J. 192, 206-07 (2002)). Defendant argues that Salter was not lawfully in the viewing area because there was no reason for the officer "to be in the proximity of the emergency room" and make observations of defendant. He also contends that Salter lacked probable cause to believe the folded bag contained drugs, and, even if probable cause existed, Salter was not free to open the bag without a search warrant.
Defendant does not challenge the second prong of the plain view exception, which is that the evidence was discovered "'inadvertently.'" Johnson, supra, 171 N.J. at 206 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L. Ed. 2d 695 (1984)). --------
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Defendant's argument regarding the first prong of the plain view exception lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). Salter had every legitimate reason to remain in the emergency room to determine defendant's medical status and whether he was, or was not, the victim of crime. Moreover, Salter's decision to wait in the hallway of the trauma room did not intrude upon any reasonable expectation of privacy. Defendant was being treated in a busy emergency room with the doors open not only to Salter, but to others in the immediate area. See, e.g., Hinton, supra, 216 N.J. at 239 (no reasonable expectation of privacy after eviction from apartment); Johnson, supra, 171 N.J. at 209 (finding no reasonable expectation of privacy on the porch of a multi-occupancy premises); State v. Stott, 171 N.J. 343, 355-56 (2002) (questioning reasonable expectation of privacy in hospital emergency room). Other jurisdictions have firmly concluded no right of privacy exists in a hospital emergency room. See, e.g., Sheffield v. United States, 111 A.3d 611, 619 (D.C. Cir. 2015); State v. Rheaume, 889 A.2d 711, 714 (Vt. 2005); State v. Lomax, 852 N.W.2d 502, 506 (Iowa Ct. App. 2014); People v. Hillsman, 839 N.E.2d 1116, 1125 (Ill. App. Ct. 2005), appeal denied, 850 N.E.2d 811 (Ill. 2006).
As to the third prong, defendant first asserts that Salter lacked probable cause to associate the paper bag with criminality because it "appear[ed] intrinsically innocent." State v. Demeter, 124 N.J. 374, 383 (1991). He argues that Salter's "subjective beliefs" that the paper bag likely contained drugs were "not dispositive." Id. at 384. Again, we disagree.
The "immediately apparent" prong requires the court to determine whether probable cause existed to associate the item in plain view, here, the folded brown paper bag, with criminal activity, before opening it. Johnson, supra, 171 N.J. at 213. "[W]hen 'determining whether the officer has probable cause to associate the item with criminal activity, the court looks to what the police officer reasonably knew at the time' . . . ." Ibid. (quoting Bruzzese, supra, 94 N.J. at 237).
This is not a case like Demeter, supra, 124 N.J. at 383, where the Court suppressed the seizure of a closed film canister. Here, Salter, who had training and experience in narcotics investigations and arrests, immediately suspected the bag contained narcotics, both because of the way it was folded and because it had been secreted in defendant's groin area to avoid detection. See State v. Cope, ___ N.J. ___, ___ (2016) (slip op. at 23) (discussing third prong and quoting Texas v. Brown, 460 U.S. 730, 734, 103 S. Ct. 1535, 1539, 75 L. Ed. 2d 502, 508 (1983) ("holding that criminal nature of container is immediately apparent where officer '[b]ecause of his previous experience in arrests for drug offenses, . . . was aware that narcotics frequently were packaged in [similar] balloons'")). "[I]n light of his experience and the facts known to him," Salter had probable cause to associate the folded paper bag with illegal activity. Johnson, supra, 171 N.J. at 215.
Lastly, defendant contends that even if Salter had probable cause to seize the bag, there was no exigency to excuse the requirement that he obtain a search warrant before opening it. We again disagree.
In Johnson, supra, 171 N.J. at 218-19, the Court upheld the warrantless search of the contents of an opaque, plastic bag, reasoning that in light of the totality of the circumstances and the officer's training and experience, "[o]nce he seized the clear plastic bag, and without opening it, he knew for sure that he had seized contraband." Id. at 219. As the Court stated, "[t]he totality of the circumstances here 'warrant a man of reasonable caution in the belief that [the content of the clear plastic bag] may be contraband . . . [and the constitution] does not demand any showing that such belief be correct or more likely true than false.'" Id. at 219-20 (quoting Brown, supra, 460 U.S. at 742, 103 S. Ct. at 1543, 75 L. Ed. 2d at 514).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION