Opinion
DOCKET NO. A-3525-13T1
01-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUIS VALERIANO, a/k/a ALEXANDER SANCHEZ-PAULINO, BAURY PAULINO, BAURY SANCHEZ, BAURY SANCHEZ PAULINO, Defendant-Appellant.
Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Rockoff, of counsel and on the briefs). Ian C. Kennedy, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Teresa A. Blair, Deputy Attorney General, of counsel; Teresa Sia, Volunteer Attorney, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 12-10-1059. Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Rockoff, of counsel and on the briefs). Ian C. Kennedy, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Teresa A. Blair, Deputy Attorney General, of counsel; Teresa Sia, Volunteer Attorney, on the brief). PER CURIAM
Defendant Luis Valeriano appeals from the denial of his motion to suppress the handgun and ammunition seized during a stop and subsequent arrest. After reviewing the record in light of the contentions advanced on appeal, we affirm.
As part of his regular patrol route, Parsippany-Troy Hills police officer Jason Ferreira was driving through the parking lot of a convenience store at 1:00 a.m. when he observed Valeriano and another man standing in a corner of the lot. He testified that he patrolled the area "at least several times a shift" because "we have some issues there . . . [m]ostly narcotics." A second officer, Robert Appel, described the store location as a "high-crime area for narcotics, theft, [and] carjackings." Ferreira observed the men "going back and forth with their hands," and although he "[c]ouldn't make out what they were doing," it appeared "they were shoving something down their pants." As Ferreira continued to observe them, the men split up; Valeriano walked toward the back of the building with two shopping bags in his hand, while the other man walked toward the front of the store. Ferreira testified the two men separated when they saw him, walking at a fast pace.
As these events were occurring, Appel pulled into the parking lot and observed the two men in front of the store and then saw Valeriano walk at "a very quickened pace" towards the back of the building. As Appel watched Valeriano at the back of the building, he observed him drop "a black and a white convenience store-style bag" on the ground. Valeriano then bent over, picked up the white bag and looked inside, leaving the black one on the ground.
Appel drove down the side of the building and parked his cruiser several feet from the wall behind Valeriano. He walked up to defendant, asking him "What's in the black bag and why did you drop it?" Valeriano responded, "What bag?" Ferreira then pulled his vehicle up to the left side of Appel's police car, exited his vehicle and asked "What do you have?" Ferreira testified that the bag, which was "standing next to" Valeriano was "wide open," and in it Ferreira observed a black handgun. Later, magazines and ammunition were also found in the bag.
Valeriano was charged and indicted on various weapons offenses and other crimes. After he filed a motion to suppress the physical evidence seized the night of his arrest, a hearing took place and the trial judge denied the motion by a written decision on August 21, 2013. Valeriano thereafter entered a conditional guilty plea to second-degree unlawful possession of a weapon and was sentenced. This appeal followed.
On appeal defendant argues the following:
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS PHYSICAL EVIDENCE WHICH WAS DISCOVERED ONLY
BECAUSE OFFICERS SEIZED LUIS VALERIANO WITHOUT ANY REASONABLE OR ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY.
In reviewing a trial judge's ruling on a motion to suppress, "an appellate court . . . 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. Elders, 192 N.J. 224, 243 (2007) (citation omitted). This court "should not disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Id. at 244. (quoting State v. Johnson, 42 N.J. 142, 162 (1964)). Issues of law, however, are reviewed de novo. State v. Gandhi, 201 N.J. 161, 176 (2010).
Valeriano argues that the officers' observations did not create a reasonable or articulable suspicion sufficient to justify stopping him. As the gun and ammunition were found following the unlawful seizure, he contends the judge erred in denying his motion to suppress. We disagree.
The Fourth Amendment of the United States Constitution, U.S. Const. amend. IV, and article one, paragraph seven of the New Jersey Constitution, N.J. Const. art. I, ¶ 7, "protect citizens against unreasonable police searches and seizures by requiring warrants issued upon probable cause." State v. Rodriguez, 172 N.J. 117, 125 (2002) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). Warrantless searches and seizures are "presumptively invalid." State v. Pineiro, 181 N.J. 13, 19 (2004) (citation omitted). When the State does not seek a warrant, it bears the burden to demonstrate that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" Rodriguez, supra, 172 N.J. at 125 (quoting Maryland, supra, 167 N.J. at 482). Two of those exceptions are the field inquiry and the investigatory stop. Id.
The trial judge found that the initial contact with Valeriano was a lawful field inquiry which then became a lawful investigatory stop. A field inquiry occurs when a police officer approaches an individual and asks "if [the person] is willing to answer some questions." Pineiro, supra, 181 N.J. at 20 (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). The officer must act reasonably measured against the totality of the circumstances. See State v. Sirianni, 347 N.J. Super. 382, 390-91 (App. Div.), certif. denied, 172 N.J. 178 (2002). The location was in a high-crime area; these events occurred at 1:00 a.m. outside in February; the officers observed defendant exchanging items with another man and shoving something into his pocket; the men then split up and moved away from each other quickly when they saw the police officers; and defendant, carrying two bags, quickly walked to the back of the building where no vehicle was parked and there was no access to the inside of the building. All of these facts warranted a field inquiry.
Thereafter, when the officer observed Valeriano drop the bags, picking only one back up, as the trial judge found, the inquiry developed into an investigatory stop. An investigatory stop may be performed if "there is reasonable suspicion that the person being stopped is engaged, or is about to engage, in criminal activity." State v. Gamble, 218 N.J. 412, 428 (2014). The judge found the officer had reasonable and articulable suspicions with regard to Valeriano's actions in dropping and then leaving a bag. According to the trial judge:
It was reasonable to suspect that the bags might contain stolen property or drugs. Indeed, it would otherwise be unusual for a person to drop bags behind a store at 1:00 a.m. Moreover, it was simply reasonable police procedure to approach and question a person who was walking behind a store in a high-crime area just after 1:00 a.m. and who then dropped bags as a police officer was approaching.If the police have a reasonable and particularized suspicion, based on objective consideration of the totality of the circumstances, that the person stopped has engaged in or is about to engage in criminal activity, a preventative stop is lawful. See United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 694-95, 66 L. Ed. 2d 621, 628-30 (1981); see also State v. Davis, 104 N.J. 490 (1986) (adopting the totality of the circumstances standard pronounced by the United States Supreme Court).
Finally, Valeriano argues that the officers' discovery of the gun was not inadvertent and therefore the plain view exception to a warrant requirement is not applicable. We find no merit to this argument. "A search without a warrant is presumptively invalid unless it falls within one of the few well-delineated exceptions to the warrant requirement." State v. Mann, 203 N.J. 328, 340 (2010) (citation and quotation marks omitted). The plain view exception applies when a police officer: (1) is 'lawfully . . . in the viewing area'; (2) discovers the evidence "inadvertently"; and (3) it is "immediately apparent" that the items are "'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)). A discovery is inadvertent when the officer "did not know in advance where evidence was located nor intend beforehand to seize it." Mann, supra, 203 N.J. at 341 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)).
As stated above, the officers approached Valeriano pursuant to a lawful investigatory stop, thereby satisfying the first prong of the plain view exception. There is no dispute as to the third prong that the gun and ammunition were "immediately apparent . . . [as] evidence of . . . contraband." Keaton, supra, 222 N.J. at 448 (internal citation and quotations omitted). Ferreira was walking towards defendant as part of a lawful investigatory stop. As he approached, he looked down at the plastic bag sitting next to Valeriano and observed the gun. There is no evidence that Ferreira either knew a gun was in the plastic bag or intended to seize the gun prior to approaching the bag, therefore satisfying the inadvertence requirement. We find the plain view exception applied, barring suppression of the lawfully seized gun and ammunition. The trial judge's decision to deny the suppression motion was based on credible evidence in the record. As such we will not disturb it.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION