Opinion
DOCKET NO. A-1908-14T3
07-18-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MATTHEW G. NABER, a/k/a MATTHEW NABOR and WAYNE NABER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs). Christopher S. Porrino, Acting Attorney General, attorney for respondent (Lila B. Leonard, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-09-1323. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs). Christopher S. Porrino, Acting Attorney General, attorney for respondent (Lila B. Leonard, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant appeals from his convictions for second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). We affirm.
In June 2011, Officers Gilberto Simao and Jose Pais responded to a noise complaint and use of illegal fireworks. When they arrived at the location, they saw defendant and another man, Jamie Rodriguez, sitting on the front porch of the residence. As they approached, used fireworks were on the lawn, Rodriguez stood up and entered the residence, and defendant removed a bag from his waist and placed it on a windowsill. When Officer Simao asked defendant for identification, he replied it was inside the residence and offered to retrieve it. Officer Simao accompanied defendant inside the residence.
Officer Pais remained on the porch, where he shined his flashlight on the bag defendant placed on the windowsill. Through a tear in the bag, Officer Pais saw a white substance. He then seized the bag.
Meanwhile, inside the residence, defendant entered his bedroom where Officer Simao remained by the doorway. As defendant opened a drawer, Officer Simao saw a white substance on top of a plate and in a bag. Defendant then went into the kitchen, where he produced his license. Because Rodriguez also entered the kitchen, Officer Simao decided to wait until they were outside the residence to arrest defendant and Rodriguez where he would not be outnumbered.
Once outside, defendant was arrested after a struggle. After defendant was placed in a patrol vehicle, Officer Simao returned to the bedroom to secure the substance he observed because he was not certain whether there were any other individuals still in the residence. Soon after, police obtained and executed a search warrant but did not find additional contraband.
On appeal, defendant raises the following points:
POINT I
THE OFFICERS DISCOVERED AND SEIZED THE EVIDENCE IN VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST UNREASONABLE SEARCHES AND SEIZURES.
A. Mr. Naber's Act of Placing the Bag Down on the Porch's Windowsill Did Not Constitute Abandonment.
B. The Plain View Doctrine Neither Justifies the Search Inside The Purported Tear in the Bag on the Porch, Nor the Discovery of the CDS Inside Mr. Naber's Bedroom.
i. The Plain View Exception Is Inapplicable Because Officer Pais's Act of Peeping Into the Purported Tear in the Non-Transparent Bag Was A Search, and Therefore, Cannot Be Justified Under the Plain View Doctrine. Moreover, His Discovery of the Contraband Inside the Bag Was Not Inadvertent.
ii. The Officer Was Not Lawfully in the Viewing Area When He Observed CDS in Mr. Naber's Bedroom. Therefore, the Plain View Doctrine is Inapplicable.
POINT II
THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCE IMPOSED BY THE COURT BELOW IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
A. The Sentencing Court Failed to Adequately Explain the Basis for Finding Aggravating Factors Three, Six, and Nine.
B. The Sentence Imposed on Count Three Is Not Offense-Oriented, as Required by State v. Roth and State v. Hodge.
Defendant first argues the judge erred by finding that the CDS from the bedroom was admissible under the plain-view exception to the warrant requirement and that the CDS from the windowsill was admissible both because it was abandoned and by virtue of the plain-view exception.
When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). The trial court's legal conclusions are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
The plain-view exception applies when (1) the officer is lawfully in the viewing area; (2) the officer discovers evidence inadvertently, without knowing "in advance where evidence was located nor intend[ing] beforehand to seize it"; and (3) it is "immediately apparent to the officer that items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002). Applying these standards, we conclude that the police properly performed a valid Terry investigatory stop, observed CDS in plain view, and lawfully seized it.
An investigatory stop, also known as a Terry stop, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002). A police officer may detain an individual for a brief period, if that stop 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." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).
The officers had the requisite particularized suspicion that "defendant 'ha[d] been [engaged] or [was] about to engage in criminal wrongdoing.'" State v. Nishina, 175 N.J. 502, 512 (2003) (alterations in original) (quoting Davis, supra, 104 N.J. at 504). They were investigating illegal fireworks use when Officer Simao saw defendant with used fireworks on his lawn. Thus, the initial Terry stop was lawful.
Officer Simao appropriately asked defendant for identification. "[I]t is well established that an officer may ask a suspect to identify himself in the course of a Terry stop." State v. Legette, 441 N.J. Super. 1, 16 (App. Div.) (alteration in original), certif. granted, 223 N.J. 355 (2015). Likewise, Officer Simao lawfully accompanied defendant into the residence to obtain identification. See id. at 20-23. He then observed CDS in plain view in the drawer, and its criminal nature was immediately apparent. Officer Simao had probable cause to seize the CDS, see id. at 26-27, but he made a reasonable decision to mitigate the risk of a physical altercation by waiting to arrest defendant outside. He then reentered the house to secure the CDS to guard against risk of destruction because he did not know if other individuals were still inside. Officer Simao's reentry to secure the CDS was a mere continuation of his prior lawful entry. State v. O'Donnell, 408 N.J. Super. 177, 186-87 (App. Div. 2009) (explaining "reentry into a residence to seize evidence observed in plain view during an initial entry . . . may be made without a warrant"), aff'd, 203 N.J. 160 (2010), cert. denied, 562 U.S. 1094, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010).
In any event, the CDS was also admissible under the inevitable discovery exception to the exclusionary rule, which applies where: "(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means." State v. Sugar, 100 N.J. 214, 238 (1985). Police obtained and executed a valid search warrant soon after Officer Simao reentered the residence, which would have undoubtedly yielded the CDS independent of the officer's reentry.
As to Officer Pais, he lawfully shined his flashlight on the bag left on the windowsill. Johnson, supra, 171 N.J. at 210 (using a flashlight does not constitute a search). He saw CDS in plain view through a tear in the bag and lawfully seized it. The officers' actions were not pretextual; they arrived investigating a noise complaint and illegal fireworks, not on a search for CDS. State v. Damplias, 282 N.J. Super. 471, 478-79 (App. Div. 1995) (the inadvertence requirement "prevent[s] the police from engaging in planned warrantless searches, where they know in advance the location of certain evidence and intend to seize it, relying on the plain view exception as a pretext"), certif. denied, 154 N.J. 607 (1998). Because the seizure was lawful by virtue of the plain-view exception, we need not consider whether the CDS from the windowsill was abandoned.
Defendant argues his sentence of twelve years in prison with four years of parole ineligibility is excessive. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
We review a sentence for abuse of discretion. State v. Robinson, 217 N.J. 594, 603 (2014). Specifically, we will affirm a sentence unless: (1) the judge violated the sentencing guidelines; (2) competent, credible evidence in the record did not support the findings of aggravating and mitigating factors; or (3) the application of the law to the facts shocks the judicial conscience. State v. Bolvito, 217 N.J. 221, 228 (2014) (citation omitted).
Defendant benefited from a favorable plea agreement. State v. Fuentes, 217 N.J. 57, 70 (2014) (explaining "[a] sentence imposed pursuant to a plea agreement is presumed to be reasonable" (citation omitted)). Within the permissible extended-term range of ten to twenty years, N.J.S.A. 2C:43-7(a)(3), defendant received only twelve years in prison with four years of parole ineligibility despite his lengthy criminal record. Competent, credible evidence supported the judge's findings of aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (the risk defendant will reoffend); six, N.J.S.A. 2C:44-1(a)(6) (defendant's criminal record); and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). Defendant's criminal history spans decades, includes prior CDS offenses, and demonstrates a risk he will reoffend.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).