February 11, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES JOHNSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-12-4727.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 19, 2008
Before Judges Stern and Collester.
Defendant Charles Johnson appeals from his conviction for second-degree robbery, contrary to N.J.S.A. 2C:15-1. Following an evidentiary hearing on October 27, 2006 before Judge Louis F. Hornstine, the court denied defendant's motion to suppress physical and identification evidence. Thereafter on October 30, 2006, defendant entered a plea of guilty to second-degree robbery pursuant to a plea agreement for the State to recommend a sentence of nine years in prison, subject to the No Early Release Act (NERA). On December 13, 2006, Judge Hornstine sentenced defendant to an eight-year period of incarceration with the eighty-five percent parole bar in accordance with NERA in addition to mandatory fines and penalties.
The facts adduced from the suppression hearing are as follows. Shortly before 11 a.m. on June 18, 2005, the Bellmawr police were dispatched to the In-and-Out convenience store at 1177 West Browning Road after a hang-up call was placed to the 9-1-1 switchboard from a pay phone at the store. Corporal Parker of the Bellmawr Police Department was on patrol about a mile away from the location, and while en route he received further information from central dispatch that the call related to a strong-arm robbery.
When Parker arrived at the In-and-Out store, he located the victim, Dennis Symington, at the pay phone. Symington said that he had been robbed by a tall black man approximately 6'5" wearing a black hat, black shirt and blue jeans. The man asked Symington for the time, and as Symington raised his arm to look at his watch, the man knocked him to the ground and punched him demanding Symington give him money. The man removed $300 from Symington's front pocket and ran across the front of the store to jump into a black taxi which had been left running and was facing Kings Highway in the direction of Mount Ephraim. Symington's arm was bleeding, and he was treated at the scene. He refused transport to a hospital for additional treatment. He told the officers who responded that the $300 taken from him was in denominations of $20 bills as he had just cashed a winning lottery ticket at the store.
Corporal Parker spoke with Robert Moore and Justin Malunism who were witnesses to the robbery. They described the assailant as a black man about 6'5" tall, with a light beard and wearing a black shirt, black hat and blue jeans. They said that he drove away in a black Chevy Caprice taxicab toward Mount Ephraim. Moore wrote down the car's license plate on the back of a lottery ticket and gave the ticket to Corporal Parker. Moore added that he may have mixed a couple of the numbers on the license plate, but was able to see that it was a limousine plate and that the car had white lettering on the side.
Corporal Parker broadcast the information over the police radio. Officer Steven Burkhardt of the Gloucester City Police Department heard the radio transmission describing the suspect as a black male with a muscular build, approximately 6'5" tall, driving a black Caprice taxicab with registration number OL2-739F and cursive white lettering on the doors. The alert also indicated the direction in which the car was headed.
Officer Burkhardt parked his marked police car at the Morgan Boulevard overpass in case the vehicle might pass in that direction. About five minutes later he saw a black Mercury Grand Marquis taxicab come off the ramp of Route 676 north and stop at the red light on Morgan Boulevard. Officer Burkhardt knew that the Chevy Caprice and Mercury Grand Marquis were both full-sized, four-door cars that were similar in appearance. He pulled up behind the car and saw the license plate read OL3729F, the same registration that had been broadcast by the dispatcher except two numbers had been transposed. Burkhardt followed the taxicab for a few minutes and saw that it was operated by a black male. He was awaiting backup units to arrive before stopping the vehicle and mistook a Camden police car parked at the side of the road as part of the backup team.
Burkhardt then activated his lights and siren and signaled the taxicab to pull over. He stayed in his police car and ordered defendant out of the black car at gunpoint. The defendant first held his credentials out the driver's window and then put them on the front seat as he stepped out of the car. It was at that point that Burkhardt saw that defendant matched the physical description of the robbery suspect. He ordered defendant to lie down in the street and put his hands behind his back. Backup officers arrived shortly thereafter. Burkhardt handcuffed the defendant and formally placed him under arrest. Searching the defendant's pockets, Burkhardt found $300 in $20 bills.
Meanwhile, the backup officers approached the car and discovered Patricia Gaughan in the front passenger seat. She was removed from the car and taken into custody. At that point Burkhardt returned to the car to check for weapons and contraband. He observed and recovered the registration and insurance card from the front driver's seat. The car was then impounded and towed to the police station. It was discovered that the vehicle was registered to James Vivalo, owner of Taxi and Limousine One, LLC, located in Metuchen. Corporal Parker called the number on the side of the car and spoke to Vivalo. When Parker asked Vivalo who was in possession of the car, Vivalo responded, "a big black guy named Charlie," but did not know defendant's last name. Vivalo then said he would provide the necessary records when he arrived to get the car released.
Corporal Parker then photographed the car exterior for evidentiary and identification purposes. While he was standing outside the car, he saw a black hat on the front seat and a dark colored sweatshirt in the back seat. Parker entered the car and took the clothing into custody.
Prior to that time, Corporal Parker had brought Symington to the Bellmawr police station, and told him that "there was somebody I wanted him to take a look at." Inside police headquarters Symington saw the defendant in handcuffs being taken out of the back of Patrolman Burkhardt's police car. He promptly identified defendant as the person who attacked and robbed him.
Following the denial of defendant's motion to suppress evidence and the identification by Symington, defendant entered his guilty plea. He now appeals the conviction presenting the following arguments:
POINT I - AFTER LOOKING INTO THE TAXICAB WHEN IT WAS PULLED TO THE SIDE OF THE ROAD, THE IMPOUND WAS A PRETEXT TO ALLOW SEARCH OF THE VEHICLE TO ATTEMPT TO DISCOVER EVIDENCE OF THE CRIME WITHOUT SECURING A SEARCH WARRANT, IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE FOURTH AMENDMENT AND HIS RIGHT TO A FAIR TRIAL.
A. THE WARRANTLESS SEARCH OF THE TAXICAB WHICH DEFENDANT HAD BEEN DRIVING WAS UNCONSTITUTIONAL AS IT WAS NOT SUPPORTED BY EITHER PROBABLE CAUSE OR EXIGENT CIRCUMSTANCES.
B. THE IMPOUND OF THE TAXICAB WAS A PRETEXT TO ATTEMPT TO DISCOVER EVIDENCE.
C. THE ITEM [SIC] OF CLOTHING WERE NOT FOUND IN "PLAIN VIEW."
POINT II - THE IDENTIFICATION PROCEDURE USED BY THE POLICE WAS SO IMPERMISSIBLY SUGGESTIVE AS TO REQUIRE EXCLUSION OF SIMMINGTON'S OUT-OF-COURT IDENTIFICATION.
We note initially that Judge Hornstine found the officers' testimony at the suppression hearing to be credible. He found that the description of the taxi and the similarity of the license plate to the witness's report led to a reasonable and articulable suspicion sufficient for a motor vehicle stop as well as probable cause to arrest defendant. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed. 2d 621, 629 (1981); State v. Johnson, 171 N.J. 192, 214 (2002); State v. Davis, 104 N.J. 490, 504 (1986). Furthermore, there was probable cause to arrest the defendant based upon the information and description supplied by both the victim two independent witnesses that was received by Officer Burkhardt over the police radio. See Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925); State v. Smith, 155 N.J. 83, 92 (1998); State v. Sims, 75 N.J. 337, 353 (1978).
Defendant argues that the search of the taxicab after he was placed in Burkhardt's patrol car was illegal and that the registration and insurance card seized from the front seat must be suppressed. It is settled in New Jersey that once the occupant of a vehicle has been arrested, removed and secured, the elements permitting a warrantless search incident to a valid arrest no longer exist. State v. Eckel, 185 N.J. 523, 541 (2006); State v. Pierce, 136 N.J. 184 (1994); State v. Welsh, 84 N.J. 346 (1980). In this instance, however, there was sufficient grounds to search the vehicle for reasons of safety and to prevent the destruction of evidence. Although defendant was outside the vehicle in police custody, Patricia Gaughan was still in the car slumped down in the passenger seat. See State v. Cooke, 163 N.J. 657, 667 (2000); State v. Colvin, 123 N.J. 428, 437 (1991).
Defendant next asserts that the impounding of the taxicab was a pretext to attempt to discover evidence. He relies upon State v. Ercolano, 79 N.J. 25, 34 (1979), where a search of defendant's vehicle while he was in his apartment was held unconstitutional. However, the instant case is clearly distinguishable. Here, the motor vehicle was stopped on a busy highway, and as a result, traffic was impeded. Under these circumstances it was proper for the police to impound the vehicle and remove it from the highway to the police station and notify the registered owner, James Vivalo, to make arrangements to release the vehicle to him.
We further find that the seizure by Corporal Parker of the black hat and a black sweatshirt on the back seat was lawful under the plain view doctrine. Parker was taking photographs of the taxi for the purpose of showing that it fit the description given of the vehicle involved in the robbery. He took pictures of the license plate, the front and rear of the taxicab, and the sides which had the white lettering. While still outside the taxicab, he saw the hat and sweatshirt through a side window.
Under our case law, three requirements must be met in order for the seizure of an item to fall within the plain view exception to the warrant requirement: (1) the police officer must lawfully be in the viewing area; (2) the evidence must be discovered inadvertently, that is, the officer did not know before hand where the evidence was located and intend to seize it; and (3) the officer must have probable cause to associate the seized property with criminal activity. State v. Johnson, 171 N.J. 192, 206-08 (2002); State v. Bruzzese, 94 N.J. 210, 237-38 (1983), cert. den. 465 U.S. 1030 (1984). Here, Corporal Parker was lawfully in the viewing area. The hat and sweatshirt constituted property associated with criminal activity since they fit the description by witnesses of clothing worn by the robber. Furthermore, the observation by the officer was made while taking pictures of the exterior of the car, and there is no proof to indicate that he was previously advised or knew these items of clothing were in the vehicle. Accordingly, the search and seizure was lawful under the plain view exception.
Defendant's next argument addresses the out-of-court identification made by Symington at the police station. Defendant argues that Judge Hornstine erred in refusing to suppress the identification because the procedure used by the police was so impermissibly suggestive as to require exclusion. However, the issue of suppression of an identification is not subject to the automatic plea preservation rule, Rule 3:5-7(d), which is only applicable when a suppression motion is based upon an allegation of an unlawful search and seizure of physical evidence. State v. Greeley, 178 N.J. 38, 50-51 (2003); see also State v. Knight, 183 N.J. 449, 470-71 (2005).
In other instances, a knowing and voluntary plea of guilty bars a defendant from raising claims relating to proceedings prior to the guilty plea except for a conditional plea pursuant to Rule 3:9-3(f), whereby a defendant may, with the approval of the court and consent of the prosecutor, preserve his right of appeal from the adverse determination of any pretrial motion. Unlike the automatic appeal of search and seizure claims permitted by Rule 3:5-7(d), the failure to enter a conditional plea under Rule 3:9-3(f) bars appellate review of pretrial matters including issues of identification. See, e.g., State v. Diloreto, 362 N.J. Super. 600, 616 (App. Div. 2003), aff'd, 180 N.J. 264 (2004). Since defendant entered an unconditional guilty plea and failed to preserve any identification issue, his argument is not cognizable on appeal. Knight, supra, 183 N.J. at 471.
Nonetheless, we offer the following comments. A pre-trial identification procedure violates due process when the identification is unduly suggestive and creates a "very substantial likelihood of irreparable misidentification" under the totality of circumstances. Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed. 2d 140, 155 (1977); State v. Adams, 194 N.J. 186 (2006); State v. Herrera, 187 N.J. 493 (2006). In this case, defendant satisfies the first prong of the test in light of the suggestive circumstances of Symington's identification of the handcuffed defendant being taken out of a police car after the witness was told the police had wanted him to look at someone. However, there were indicia of reliability in this case to negate the taint of the unduly suggestive police procedure and militate against the likelihood of an irreparable misidentification. Symington had the opportunity to clearly view his assailant and robber at the time of the crime. His detailed description of the perpetrator and his certainty of identification when confronted with the defendant shortly after the crime were significant factors leading the motion judge to properly reject defendant's argument.
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