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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...