Opinion
DOCKET NO. A-1987-11T2
04-23-2013
STATE OF NEW JERSEY, Plaintiff-Respondent v. LAMAR CHERRY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Erin M. Bisirri, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Mantineo.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-02-0264.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Erin M. Bisirri, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following the denial of his motion to suppress, defendant pled guilty, pursuant to a negotiated plea, to two charges in Atlantic County Indictment No. 11-02-0264: third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. In return, the State agreed to recommend concurrent aggregate terms of five years imprisonment with a three-year period of parole ineligibility and to dismiss all remaining charges. Defendant was subsequently sentenced in accordance with the terms of the plea bargain.
During the same hearing, defendant also pled guilty to one count in a second Indictment, No. 10-11-2720, for the disorderly persons offense of wandering/loitering with the intent to obtain CDS, N.J.S.A. 2C:33-2.1(b)(2). The denial of defendant's motion to suppress related to Indictment 10-11-2720 is not raised on appeal.
Defendant appeals the denial of his motion to suppress the gun and drugs seized, upon which the charges in Indictment No. 11-02-0264 were based. Defendant presents the following arguments on appeal:
POINT I
THE MOTION TO SUPRESS WAS WRONGLY DENIED BECAUSE THE COURT RELIED UPON FACTS NOT IN EVIDENCE, FURTHER, THE POLICE LACKED A REASONABLE SUSPICION TO REMOVE THE CO-DEFENDANT FROM THE DRIVER'S SEAT OF HIS PARKED CAR.
A. The court improperly relied upon facts outside the evidence in denying the motion to suppress.
B. Officer Herrerias acted on a hunch when he stopped Thompson and ordered him to exit the vehicle.
Defendant argues that the trial court erroneously considered a police report that was not a part of the record. Defendant attached this report to the brief submitted in support of his motion to suppress. Thus, this error was invited by defendant and will not be considered by us. Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996).
Having reviewed defendant's arguments in light of the record, we discern no reason to disturb the trial court's denial of his motion to suppress. We affirm.
I.
Two witnesses testified at the hearing on the defendant's motion to suppress: Atlantic City Police Officer, William Herrerias and Joyce Bishop.
Bishop testified that she phoned 9-1-1 on October 24, 2010, at 12:48 a.m. and reported she was chasing a black male who had pulled a gun on her. She reported the suspect was traveling north on South Carolina Avenue. Bishop provided a limited description of the gunman, stating he was a black male wearing a blue shirt and blue jeans. Upon arrival in the area, Herrerias and his partner received a more detailed description of the suspect: a light-skinned black male with light chin hair, wearing a blue shirt, blue jeans and dark sneakers.
While he searched for the suspect, Herrerias observed a man, later identified as the defendant, and another male, later identified as Efram Thompson, seated in a parked Nissan Altima. As the patrol car approached the Altima, the defendant exited the vehicle and quickly walked across the parking lot into the breezeway of an apartment complex. Herrerias observed the defendant matched the description of the gunman. Herrerias also noticed that the defendant continuously looked back as he walked away and appeared focused on the patrol car.
Moments after entering the breezeway, the defendant reemerged accompanied by a female. He was then stopped by Officer Niremburg, another responding officer. Herrerias and his partner approached Officer Niremburg and alerted him that they had observed the defendant exit the Altima parked in the lot. Herrerias and his partner then approached the Altima. Thompson was seated in the driver's seat. As Herrerias spoke with him, he observed Thompson "was completely rigid. . . . He was trying to stare straight ahead[,]" and "was nervous[.]" Herrerias then ordered Thompson to exit the vehicle.
After Thompson was removed from the car, Herrerias walked to the passenger side and peered through the window into the area where the defendant had been seated. In plain view, on the front passenger-side floor, Herrerias observed a semi-automatic handgun and a small bag containing yellow baggies with a white rock-like substance later determined to be cocaine. Thompson immediately declared that the contraband belonged to the defendant.
Efram Thompson was charged as a co-defendant in Indictment No. 11-02-0264. Defendant Cherry provided an exculpatory statement as to Mr. Thompson when he gave his factual basis for his plea.
After listening to the testimony and the arguments of counsel, the trial court denied the defendant's motion to suppress; concluding the officers had reasonable and articulable suspicion to approach the vehicle and order Thompson to exit. The court determined that the contraband discovered was in plain view and thus, subject to seizure under the plain view exception to the warrant requirement.
II.
We begin by noting the standard of review that applies to a trial court's findings on a motion to suppress. We must "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). However, we owe no deference to the trial court's rulings on questions of law. State v. Gandhi, 201 N.J. 161, 176 (2010). Finally, the State bears the burden of proving the validity of a warrantless search by a preponderance of the evidence. State v. Edmonds, 211 N.J. 117, 128 (2012).
Defendant argues Herrerias's request of Thompson to exit the vehicle was unlawful, as it was made in the absence of a particularized suspicion that Thompson was involved in criminal activity. Defendant urges this Court to find that the officers "acted on a hunch" when they ordered Thompson to exit the vehicle. Defendant also maintains the subsequent seizure of the contraband must be suppressed as it was the product of Thompson's unlawful detention. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963) ("[w]e need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. . . . [T]he more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt 221 (1959)."). We are not persuaded by defendant's arguments.
An investigatory stop or a Terry stop is a well-recognized exception to the warrant requirement. Mann, supra, 203 N.J. at 338. "Such a stop 'is valid if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). "[A] reviewing court must assess whether 'the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate.'" Ibid. (quoting Piniero, supra, 181 N.J. at 21). The officer's actions cannot be based upon "inarticulate hunches . . . ." Ibid. (citation omitted). "Because the 'determination of reasonable [and articulable] suspicion is fact-sensitive,' a careful review of the totality of the circumstances surrounding each case is required." Ibid. (quoting Pineiro, supra, 181 N.J. at 22).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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In this case, the totality of the circumstances as found by the motion judge warranted the officers' action. The officers were responding to a late-night report of a man with a gun. When they arrived in the area, they observed the defendant, who fit the description of the reported gunman, seated in a parked vehicle. Then, as they approached, the defendant exited the Altima and hurried away from the officers as he continuously looked back in an attempt to keep the patrol car in his sight. These actions, even if individually susceptible of an innocent explanation, considered in the aggregate, support a finding of reasonable suspicion. State v. Stovall, 170 N.J. 346, 368-70 (2002).
In addition, Thompson's reaction to the officers' questions; his ridged, nervous behavior and reluctance to look at them, together with the officers' other observations, justified the request for Thompson to exit the vehicle. "Nervousness and furtive gestures may, in conjunction with other objective facts, justify a Terry search[.]" State v. Lund, 119 N.J. 35, 47 (1990) .
We are satisfied the trial court correctly determined that Herrerias had a particularized suspicion that the defendant and Thompson were engaged in criminal activity, justifying the investigatory stop as well as the order to exit the vehicle.
III.
Even if our assessment of whether reasonable and articulable suspicion justified the officers' removal of Thompson from the vehicle is incorrect, we are convinced the seizure of the contraband passes constitutional muster. The evidence sought to be suppressed was observed by the officers in plain view, and properly seized pursuant to the plain view exception to the warrant requirement.
The bedrock constitutional mandates of the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, "protect citizens against unreasonable police searches and seizures by requiring warrants issued upon probable cause." State v. Walker, ___ N.J. ___, (2013) (slip op. at 7) (quoting State v. Johnson, 171 N.J. 192, 205 (2002). A warrantless search is presumptively invalid unless it falls within one of the recognized exceptions to the warrant requirement. Mann, supra, 203 N.J. at 337-38 (citing Elders, supra, 192 N.J. at 246). One such exception to the warrant requirement is the plain view doctrine. See State v. Perry, 124 N.J. 128, 148 (1991) (holding "[t]he police may seize evidence found 'in plain view' despite the lack of a warrant."). The admission of evidence seized without benefit of a warrant when found in plain view results because "a police officer lawfully in the viewing area" should not be required "to close his eyes to suspicious evidence in plain view." State v. Bruzzeze, 94 N.J. 210, 237 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)
The plain view doctrine allows an officer to seize evidence without a warrant where he is "lawfully . . . in the viewing area[,]" the evidence is discovered "'inadvertently,'" and it is "'immediately apparent' to the officer that [the] items in plain view [are] evidence of a crime, contraband, or otherwise subject to seizure." Johnson, supra, 171 N.J. at 206-07 (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-70, 91 S. Ct. 2022, 2037-40, 29 L. Ed. 2d 564, 582-85 (1971); Bruzzese, supra, 94 N.J. at 236)).
All of these conditions were satisfied in this case. Officer Herrerias observed the contraband through the passenger-side window while he was lawfully outside the vehicle. In fact, any person walking around the vehicle could have made the same observation. Second, the record reflects the officers inadvertently observed the contraband. The trial court found Officer Herrerais's testimony credible and his testimony established that the officers approached Thompson as part of their investigation into the report of a man with a gun. The officers did not know in advance that an illegal handgun and CDS would be found in the vehicle. Third, the illegality of the items was immediately recognizable. We are satisfied that the seizure of the contraband was valid under the plain view exception to the warrant requirement.
Furthermore, "[a] simple observation into the interior of an automobile by a police officer located outside the automobile is not a 'search' within the meaning of the Fourth Amendment." State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987) (citing Texas v. Brown, 460 U.S. 730, 739-740, 103 S. Ct. 1535, 1541-42, 75 L. Ed. 2d 502, 511-12 (1983)). "There is no legitimate expectation of privacy, . . . shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by . . . diligent police officers." Id. at 216 (quoting Texas v. Brown, supra, 460 U.S. at 740, 103 S. Ct. at 1542, 75 L. Ed. 2d at 513). Thus, an observation of contraband which is in plain view from outside a vehicle does not constitute a search. State v. Johnson, 274 N.J. Super. 137, 154 (App. Div.), certif. denied, 138 N.J. 265 (1994).
Herrerais's observation of the contraband through the closed passenger-side window was lawful. As such, defendant's suggestion of constitutional infirmity is unfounded.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION