March 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHNATHAN B. MURPHY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 05-08-0499.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2007
Before Judges Payne and Sapp-Peterson.
Defendant, Jonathan Murphy, who entered a conditional plea of guilty to the charge of third-degree drug possession, seeks reversal of his conviction and sentence, claiming that the trial court erred in denying a motion by him and his co-defendant, Patrick A. Wilcox (Wilcox), to suppress the fruits of police searches and seizures that Murphy claims violated both the Federal and State Constitutions. Murphy also challenges his sentence as excessive, arguing that the trial judge improperly balanced the applicable aggravating and mitigating factors. We affirm.
Murphy's indictment for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and third-degree tampering with evidence, N.J.S.A. 2C:28-6(1), arose out of a police investigation that led to the arrest, for drug possession, of his co-defendant, Wilcox, outside of a WaWa convenience store located in Wildwood on June 26, 2005.
Both defendants jointly moved to suppress the evidence seized, claiming the police violated the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. A suppression hearing was held on November 14, 2005.
The evidence presented by the State at the hearing revealed that Officer Kevin Franchville (Franchville) was dispatched to the WaWa in Wildwood on June 25, 2005, upon a report from a WaWa employee, Jackal, who had been involved in an odd encounter with an individual later identified as Wilcox. When Franchville arrived at the WaWa, Jackal told him that Wilcox approached her outside the store, asked her a few questions, and then asked her to spit into a bottle for science, which she did. When Wilcox asked her to walk further up the street in order to be videotaped, she declined to do so and returned to the WaWa. Jackal gave a description of Wilcox to Franchville.
The following evening, Jackal saw Wilcox outside the WaWa and contacted police. Once again, Franchville responded to the call. When he arrived, Jackal "positively identified [Wilcox] as being the subject from the previous night." Franchville testified that "[he] went over to speak with him, and [he] was speaking with him, [he] went to -- told [Wilcox] to get off his bicycle and went to pat him down and asked him if he had anything on him and he handed me the six bags . . . of suspected heroin." Right after doing so Franchville testified that Wilcox immediately implicated defendant by stating that the drugs were not his but had been "handed to him by a . . . white guy in a white tee shirt that just went into the WaWa into the bathroom" and could be found in the bathroom of the store. Upon further investigation within the bathroom, police also found defendant in possession of drugs, which were seized.
At the conclusion of the hearing, the judge denied the suppression motion, and defendants thereafter entered conditional guilty pleas pursuant to plea agreements that preserved their right to challenge the court's decision.
In our per curiam opinion, issued on February 15, 2007 in co-defendant Wilcox's appeal from his conditional guilty plea, we found that Franchville conducted an investigatory stop of Wilcox based upon his reasonable and articulable suspicion that criminal activity was afoot. State v. Wilcox, No. A-3851-05T4 (App. Div. February 15, 2007) (slip op. at 6). We noted that the incident between Wilcox and Jackal, a WaWa employee, took place on the outskirts of a high-crime area, and Wilcox's conduct toward Jackal caused her to be concerned for her safety, prompting her to make a suspicious person phone call to the police and to contact the police the following evening when he appeared again. Additionally, we found Wilcox's clenched fist, which Franchville observed, provided a reasonable basis for the officer to fear for his own safety. Wilcox, supra, A-3851-05T4, Id. at 6-7. We concluded that under these circumstances, Franchville had a duty "to make demands and issue orders . . . to expect compliance with his reasonable commands, and to ask authoritative questions indicative of criminal suspicion." Id. at 7 (internal quotes and citations omitted).
In view of our earlier decision affirming the trial court's denial of defendants' joint suppression motion, there is no need to revisit the issue simply because it is now being raised separately by defendant. See State v. Reldan, 100 N.J. 187, 203 (1985) ("The 'law of the case' doctrine sometimes requires a decision of law made in a particular case to be respected by all other lower or equal courts during the pendency of that case."). Consistent with the Court's reasoning in Reldan, we have held that when a newly constituted appellate panel is asked to review an issue already decided in a prior appeal, a court should not deviate from the law of the case "unless the first decision was palpably wrong." Polidori v. Kordys, Puzio & DiTomasso, 228 N.J. Super. 387, 394 (App. Div. 1988); see also, United States v. Schaff, 948 F.2d 501, 506 (9th Cir. 1991) (reaffirming that the law of the case doctrine applies to issues previously decided on appeal brought by a co-defendant, if both defendants were convicted in the same trial).
Next, defendant argues that irrespective of the validity of the investigative stop of Wilcox, the police lacked probable cause to believe a crime was being committed in the WaWa men's room. Specifically, defendant contends the police acted unreasonably when they entered the WaWa men's room based solely upon Wilcox's statement. Defendant urges that, at most, the police should have waited outside of the men's room until he exited and then had Wilcox make a positive identification, because Wilcox, as a suspect at that point, was not an ordinary citizen. Consequently, defendant urges that Wilcox's statement to police was not accompanied by the presumed reliability of statements from ordinary citizens. We disagree.
First, neither probable cause nor reasonable suspicion that criminal activity is occurring or about to occur is a condition precedent to police entering a public place. State v. Davis, 104 N.J. 490, 497 (1986) (citing Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed. 2d 229, 236 (1983)). The bathroom in the WaWa was a public place open to its patrons or others lawfully on the premises. Ibid.; State v. Boynton, 297 N.J. Super. 382, 389 (App. Div. 1997). There can be no doubt that police called to the scene by a WaWa employee were lawfully on the premises and free to enter the bathroom to continue their investigation. Davis, supra, 104 N.J. at 497. Nonetheless, we agree that Murphy, in a private stall, had some expectation of privacy, and that his expectation of privacy would ordinarily include being free from any intrusive conduct such as peering at him from either over or under the stall. Here, however, police were directed to the bathroom based upon information received from Wilcox that the drugs confiscated from him belonged to a white male wearing a white tee shirt who had gone to the bathroom in the WaWa. Effective crime prevention often involves police conducting investigations based upon information received from citizens and suspects alike. That the source of the information came from a suspect only suggests that the information may not have been as reliable. Davis, supra, 104 N.J. at 503 (noting that a police officer has a duty to investigate suspicious behavior).
Once they entered the bathroom, the officers observed an individual wearing white sneakers standing in the stall with his feet facing outward. They identified themselves and asked him to exit from the stall. When defendant failed to respond, the officers proceeded to investigate further, with one officer attempting to go under the stall. Another officer attempted to go over the stall and, in doing so, observed defendant flushing a "little clear baggie." Although defendant was in a private portion of a public restroom, at that point he was using it to engage in criminal activity, namely, to discard suspected narcotics. Under these circumstances, defendant was not using the stall for its intended purposes. Boynton, supra, 297 N.J. Super. at 389. Consequently, in our view, defendant was not entitled to a reasonable expectation of privacy. Ibid.
Additionally, the actions of the police were justified based upon exigent circumstances. When determining if exigent circumstances existed that would justify a warrantless search, the court must look at several factors. State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990). Those factors are:
(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause, and (9) the time of the entry. [Ibid.]
Against that standard, we are satisfied that exigent circumstances existed here. First, Murphy had refused a reasonable police command to exit the stall and instead flushed the toilet in an attempt to dispose of evidence. It would have been impossible for the police to obtain a warrant in time to search Murphy prior to his destruction of evidence. Second, the officers' belief that contraband was about to be destroyed was reasonable. Murphy was in a restroom stall that allowed him to easily and quickly flush any drugs in his possession. Third, the judge surmised that it was likely Murphy knew that "the police were on [his] trail" because the officers arrived at the WaWa with their vehicle sirens activated. Fourth, when arrested, police seized six bags of heroin from Wilcox, who told the police that he obtained the drugs from Murphy. It was, therefore, reasonable for the officers to suspect that Murphy might be in possession of additional drugs in the men's room. All of these factors establish that there was reasonable suspicion to believe that defendant was engaged in criminal activity, and exigent circumstances justified the actions of the police. Ibid.
We likewise reject Murphy's argument that the heroin seized from his pocket after his arrest was the product of an illegal search. The drugs were seized as part of a search incident to arrest and did not extend beyond that which was necessary to ensure the officers' safety. Chimel v. California, 395 U.S. 752, 762-63; 89 S.Ct. 2034, 2040; 23 L.Ed. 2d 685, 694 (1969) (the need to protect the arresting officers and to prevent destruction or concealment of evidence justifies the search); State v. Sims, 75 N.J. 337, 352-53 (1978). Hence, no search warrant was necessary. Ibid.
Finally, defendant claims the court improperly balanced the aggravating and mitigating factors before imposing sentence. Defendant contends this resulted in the imposition of an excessive four-year custodial term with a two-year period of parole ineligibility.
Appellate courts review trial court sentencing decisions to determine if the sentence imposed could have been reached by a reasonable person based upon the evidence presented. State v. Roth, 95 N.J. 334, 365 (1984). In order to make that determination, we (a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience. [Id. at 364-65.]
The sentencing range for a third-degree crime is three to five years. N.J.S.A. 2C:43-6(a)(3). The judge considered three aggravating factors*fn1 and one mitigating factor.*fn2 The judge gave great weight to aggravating factor six, defendant's extensive prior criminal history. Given the evidence of defendant's prior crimes, the judge properly considered factor three, the risk of future crimes, and factor nine, the need to deter, when sentencing the defendant. Thus, the aggravating factors the judge considered were supported by credible evidence in the record.
The trial judge found mitigating factor four, that there were "substantial grounds tending to excuse or justify the defendant's conduct" based upon defendant's history of substance abuse and mental retardation. However, the trial court did not give the mitigating factor much weight because defendant's disabilities did not prevent him from living a criminal lifestyle.
In reviewing the sentence imposed, it can not be said that the sentence "shock[s] the judicial conscience." Roth, supra, 95 N.J. at 365. We are satisfied that the judge properly balanced the aggravating and mitigating factors before imposing sentence.