Opinion
DOCKET NO. A-4332-14T2
08-24-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. ELIJAH WILSON and RAMIL HARRIS, Defendants-Respondents.
Priya P. Ramrup, Assistant Prosecutor, argued the cause for appellant (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Ramrup, on the brief). Margaret McLane, Assistant Deputy Public Defender, argued the cause for respondent Elijah Wilson (Joseph E. Krakora, Public Defender, attorney; Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). Charles Alvarez argued the cause for respondent Ramil Harris (Peter R. Willis, LLP, attorneys; Mr. Willis and Mr. Alvarez, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-10-1840. Priya P. Ramrup, Assistant Prosecutor, argued the cause for appellant (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Ramrup, on the brief). Margaret McLane, Assistant Deputy Public Defender, argued the cause for respondent Elijah Wilson (Joseph E. Krakora, Public Defender, attorney; Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). Charles Alvarez argued the cause for respondent Ramil Harris (Peter R. Willis, LLP, attorneys; Mr. Willis and Mr. Alvarez, of counsel and on the brief). PER CURIAM
On leave granted at the State's request, we review the trial court's April 22, 2015 order suppressing a handgun that Jersey City police officers seized from defendant Ramil Harris's car without a warrant. The police observed the gun from the exterior of the car after stopping the vehicle for minor traffic violations. For the reasons that follow, we reverse.
I.
The following pertinent facts emerged at the suppression hearing in which counsel for the State, defendant Harris, and co-defendant Elijah Wilson participated.
At approximately 11:00 p.m. on the evening of April 23, 2013, Lieutenant Timothy O'Brien was conducting surveillance in an unmarked vehicle at the intersection of Bergen Avenue and Lexington Avenue in Jersey City. Lieutenant O'Brien was then the head of the Jersey City Police Department Violent Crime Unit. According to O'Brien, this neighborhood comprises "the highest crime area within Jersey City," as it typically experiences "numerous incidents concerning aggravated assaults, shootings, shots fired, [and] firearms arrests."
While conducting surveillance at that time, Lieutenant O'Brien observed a green two-door Acura make a series of turns and illegally park on a side street approximately forty to fifty yards from the corner. The car was driven by defendant Harris.
Soon thereafter, defendant got out of the vehicle, accompanied by co-defendant Wilson, and walked south on Bergen Boulevard towards Lexington Avenue. After Harris and Wilson turned onto Lexington, O'Brien lost sight of the two men for approximately "five minutes."
In the interim, O'Brien advised the other patrol units in the area that he "intended . . . to stop the vehicle" when the men reentered the car because, "[t]hrough prior dealings with [Harris, he] was aware that [Harris] was in possession of only a probationary driver's license which doesn't permit [Harris] to drive after 11 o'clock at night." O'Brien testified, however, that he was neither responsible for, nor intended at that particular time to write a citation for these offenses.
After the approximately five-minute period elapsed, O'Brien witnessed defendants walking back towards Oxford Avenue where the car was parked. According to O'Brien, while the men were walking, he witnessed Harris "counting . . . what appeared to be currency."
Harris entered the Acura on the driver's side. Once Harris did so, O'Brien witnessed him "reaching towards the [] backseat area" although O'Brien testified that he could not tell what Harris was doing. After Harris began driving, three patrol officers, including Patrol Officer Vincent Alberto, stopped the vehicle at the corner of Oxford and Bergen Boulevard "almost immediately."
When Officer Alberto approached the vehicle, he perceived what he described as the "odor of burnt marijuana emanating from the vehicle." Consequently, Alberto and the other patrol officers physically removed Harris and Wilson from the vehicle and conducted a "pat down for weapons to make sure [either man] didn't have any weapons on him."
While conducting the pat down, Officer Alberto simultaneously "did a cursory view of the interior of the vehicle from the outside with [his] flashlight." This was prompted, as Alberto described it, by O'Brien's "mention[ing] something over the air about them in the back seat of the car[.]"
While standing outside the Acura on a spot he described as the "front of the car," Alberto "observed a silver handgun that was visible in the trunk through an open rear center console door," within the car. The police subsequently seized the weapon, which was later determined to be a Taurus .38 revolver.
No money or marijuana was seized from either defendant. Additionally, no officer had witnessed either of the men smoking marijuana prior to the stop.
Harris was subsequently issued traffic citations for "prohibited parking," and for "driving with a probationary license after 11 o'clock." A Hudson County Grand Jury returned Indictment No. 13-10-0184, charging Harris and Wilson with possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count one), and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two).
Defendants filed a motion to suppress evidence of the handgun seized during the traffic stop. After considering testimony at the suppression hearing and considering the arguments of counsel, the trial court granted defendant's motion to suppress in a letter opinion and order dated April 22, 2015.
The trial court concluded that suppression was warranted because Lieutenant O'Brien's "'suspicions' were based upon insufficient facts to support a reasonable and articulable suspicion of criminal activity in light of the totality of the circumstances."
More specifically, the court perceived that the "minor motor vehicle infractions were the only legitimate basis for any interaction" and that "what [really] motivated this stop and investigation was [Lieutenant] O'Brien's assumption that defendants were involved in some illegal activity."
The trial court reasoned that Harris "should have been served with a summons before he was allowed to get back into the car and drive away," and that the decision to forgo this initial opportunity vitiated the officers' subsequent right to stop the vehicle. Having thus concluded that the police were "not lawfully in the viewing area after [they] stopped the car," the trial court also rejected the State's proffer that the seizure was permissible because the gun was in plain view.
The State moved for leave to appeal and to stay further proceedings in the trial court on May 12, 2015, which we granted. This appeal ensued. We review the trial court's legal analysis of the suppression issues de novo. State v. K.P.S., 221 N.J. 266, 276 (2015).
The State also filed a motion for summary reversal, which was denied in the same order. --------
II.
It is well established under the Fourth Amendment of the United States Constitution and under Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981). We differ with the trial court in concluding, based on our own review of the record, that the State has overcome that presumption in this case.
The police here were justified in initiating the traffic stop because the Acura was parked illegally and because Harris's provisional license prohibited him from driving at the time of the traffic stop. See Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979) (recognizing the constitutional propriety of warrantless traffic stops if based upon articulable police suspicions of illegality). All that is required for a lawful stop of an automobile is a "'reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed.'" State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009) (quoting State v. Carty, 170 N.J. 632, 639-640, modified by 174 N.J. 351 (2002)).
Having directly observed the past-curfew driving and parking violations, the police officers here had probable cause to believe that a traffic offense had occurred. See State v. Pavao, 239 N.J. Super. 206, 209 (App. Div.), certif. denied, 122 N.J. 138, cert. denied, 498 U.S. 898, 111 S. Ct. 251, 112 L. Ed. 2d 209 (1990); see also Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996). In this regard, the trial court misapplied its discretion when it found that the officer's lacked a reasonable basis to initiate the traffic stop.
Defendants nonetheless contend that the stop was illegal because the officers allegedly had no "intention to stop the Acura to issue the minor motor vehicle summons," and that the stop was therefore pretextual. This argument lacks merit.
It is well established that a police officer's subjective state of mind is irrelevant when conducting a search or seizure analysis. See State v. O'Neal, 190 N.J. 601, 614 (2007) (observing that a police officer's action is reasonable "regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively, justify [the] action. The officer's subjective motivation is irrelevant.") (citation and internal quotation marks omitted). Although an officer may not engage in excessive questioning about matters wholly unrelated to the purpose of a routine traffic stop, see Rodriquez v. United States, ___ U.S. ___, 135 S. Ct. 1609, 1614-15, 191 L. Ed. 2d 492, 498-99 (2015), the officer need only have an objectively reasonable basis for the stop. See Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 1416-18, 185 L. Ed. 2d 495, 503 (2013) ("[A] stop or search that is objectively reasonable is not vitiated by the fact that the officer's real reason for making the stop or search has nothing to do with the validating reason.").
Defendants next argue that suppression is warranted here because the police officers' seizure of the weapon was not "inadvertent," because the police had advance knowledge that some undefined contraband was located in the back of the vehicle. In response, the State relies on the "plain view" exception as grounds for the seizure of the firearm.
Under the plain view doctrine, a warrant is not required to perform a search when a police officer is: (1) lawfully present in the viewing area, (2) the officer inadvertently discovers the evidence in plain view, and (3) it is "'immediately apparent'" to the police officer that the "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); see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
Here, the trial court did not make a ruling with regard to the inadvertency of the police's discovery. Rather, the court stated that the police could not rely on the plain view exception because Officer Alberto was not lawfully in the viewing area.
The requirements of the "plain view" analysis need not be satisfied in this case. As we have held, the plain view exception may be a justification for the police's warrantless search of the vehicle. Officer Alberto's mere act of shining a flashlight into the interior of the Acura, however, did not comprise a "search" of the vehicle for purposes of triggering the "plain view" exception to the warrant requirement. See, e.g., State v. Jessup, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip op. at 6); accord State v. Reininger, 430 N.J. Super. 517, 534 (App. Div.) (holding that an officer's use of a flashlight to illuminate the interior of a car does not turn an observation into a search), certif. denied, 216 N.J. 367 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1947, 188 L. Ed. 2d 962 (2014).
By peering into the car from an outside vantage point, Officer Alberto conducted a "nonsearch observation." Wayne R. LaFave, Search and Seizure, § 2.2(a) at 450 (4th ed. 2004). The State does not need to show that Officer Alberto's observation was inadvertent, as there was no prior physical intrusion into a constitutionally protected area.
We recognize that this conclusion as to the lack of an initial "search," does not settle the separate and distinct question of the propriety of the State's subsequent seizure of the handgun. "[E]ven when the plainly viewed object could be seized without interfering with a person or entering upon protected premises, it cannot be said that the right of seizure flows automatically from the plain view." LaFave, Search and Seizure, supra, §2.2(a) at 451. Instead, the State must get a warrant, or establish some other exception to the warrant requirement. See State v. Pena-Flores, 198 N.J. 6, 18 (2009) (describing various exceptions to the warrant requirement, including the automobile exception).
Here, the State did not have a warrant to seize the weapon. Because no other exceptions readily apply, the result here turns on the exigent circumstances exception. Pena-Flores, supra, 198 N.J. at 28; see also State v. Hathaway, ___ N.J. ___ (2015) (slip op. at 24).
The "totality of the circumstances" here support a finding of exigency. Pena-Flores, supra, 198 N.J. at 28. First, the traffic stop was conducted at approximately 11:00 p.m. in what Lieutenant O'Brien described as "the highest crime area within Jersey City." Second, the officers conducted the stop after observing defendants park illegally on a "desolate street," walk to an "extremely high crime area," and walk back a short time later counting money. Third, the firearm observed within an accessible area within the Acura and the odor of burnt marijuana firmly established probable cause to believe that the car contained evidence of criminal activity. See N.J.S.A. 2C:39-6(g) (stating that weapons being transported in a vehicle "shall be carried unloaded and contained in a closed and fastened case . . . or locked in the trunk"); see also State v. Nishina, 175 N.J. 502, 515-16 (2003) (holding that smell of marijuana constitutes probable cause to believe crime has been committed and that additional contraband might be present).
We have previously recognized that firearms and the special threat they can pose to public safety at times warrant prompt police action. See, e.g., State v. Wilson, 362 N.J. Super. 319, 336 (App. Div.) (permitting the warrantless search of a car for handgun even though "both suspects were in custody and the automobile under police control"), certif. denied, 178 N.J. 250 (2003). Consequently, the presence of the unsecured weapon in the Acura, regardless of whether the defendants were detained, triggers enhanced safety concerns that comprise a significant factor in determining whether exigent circumstances exist. State v. Diloreto, 180 N.J. 264, 281-82 (2004); accord Wilson, supra, 362 N.J. Super. at 333 ("Our state law has long recognized the special significance of firearms and the threat they represent to public safety"). Under these circumstances, the police's seizure of the revolver was justified.
III.
The trial court's ruling granting defendants' motion to suppress the handgun is consequently reversed. The case is remanded for trial, at which the handgun may be admitted as part of the State's proofs. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION