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State v. Shihadeh

April 29, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENJAMIN J. SHIHADEH A/K/A BEN SHIHADEA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-05-1259.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 4, 2009

Before Judges C.L. Miniman and Baxter.

Following a conditional guilty plea to third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), defendant appeals from the denial of his motion to suppress evidence seized in a search of the property on his person when he was charged at the police station with driving while intoxicated, N.J.S.A. 39:4-50. We affirm.

In the early morning hours of January 1, 2007, Corporal James J. Keenan, Middletown Township Police Department, stopped defendant on suspicion of driving under the influence. Defendant does not dispute that the officer had probable cause to do so. While he was being transported to the police station, defendant's hands were cuffed behind his back and, despite repeated instructions to sit still, defendant kept trying to reach around for something. Upon arriving at the police station, Patrolman Michael Kenney, who had arrived at the scene of the arrest as backup for Keenan, instructed defendant to empty his pockets and place everything on a table. Defendant complied and placed a pack of cigarettes, a lighter, a folding leather credit-card case, and other items on the table. Defendant was then placed in a holding cell. Kenney opened the credit-card case and removed the cards. When he did so, a folded twenty-dollar bill filled with cocaine dropped from between some cards; it was logged into evidence.

At the suppression hearing, Kenney explained that he emptied the wallet because departmental policy required him to inventory all property on a subject's person, list the property, and have the subject sign the list at that time and again when the items were returned. This policy was intended to prevent false claims of missing property. No such list was produced at the hearing. Kenney acknowledged that he could have complied with the policy by listing a closed wallet. Defendant submitted breath samples and was released at 4:45 a.m. after his brother arrived to drive him home.

The judge found that the search was a proper search incident to an arrest because defendant's arrest on the street and his transport to the police station was a single, uninterrupted transaction. He also found that the inventory search was part of a routine booking procedure for the safety of the officers and protected the police from false claims of stolen property. He denied the motion to suppress.

Defendant raises a single argument on appeal:

THE SEARCH OF MR. SHIHADEH'S PERSONAL PROPERTY WAS ILLEGAL UNDER ARTICLE 1, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.

The scope of our review of a judge's fact-findings on a motion to suppress evidence is limited. "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162.

Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. State v. Brown, 118 N.J. 595, 604 (1990); State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004); State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

"Warrantless searches are presumed invalid," and the State has the burden to prove that a warrantless search falls within a recognized exception to the warrant requirement. State v. PenaFlores, 198 N.J. 6, 18 (2009). The United States Supreme Court has enumerated the exceptions to the requirement of a warrant before searching or seizing an item or a person. State v. Hill, 115 N.J. 169, 173-74 (1989). Among those exceptions are searches incident to an arrest under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 2d 685 (1969), and inventory searches under South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed. 2d 1000 (1976). Hill, supra, 115 N.J. at 173. New Jersey has recognized both exceptions. See State v. Sims, 75 N.J. 337, 352 (1978) ("When a valid arrest based on probable cause has been made, a police officer is entitled to search the arrestee's person in order to protect himself and to insure that evidence is not destroyed."); State v. Moore, 181 N.J. 40, 45 (2004) (recognizing inventory-search exception, among others); State v. Paturzzio, 292 N.J. Super. 542, 550 (App. Div. 1996) ("An inventory search of personal effects of an arrestee at a police station is permissible under the Fourth Amendment.").

Defendant urges that he was not charged with a crime, citing State v. Hamm, 121 N.J. 109, 112 (1990) ("[T]he motor-vehicle offense of DWI . . . is simply not a crime under New Jersey law."), cert. denied, 499 U.S. 947, 111 S.Ct. 1413, 113 L.Ed. 2d 466 (1991), and argues that the scope of a search incident to such an arrest should be limited, citing State v. Daniels, 393 N.J. Super. 476, 491 (App. Div. 2007). He contends that the pat-down search at the scene was all that was required to insure the safety of the officers and the fruit of the subsequent search of his personal property at the police station should be suppressed because the search "was remote in both time and place from the location of the arrest," quoting State ex rel. J.M., 339 N.J. Super. 244, 249 (App. Div. 2001).*fn1 Thus, he asserts that the search cannot be justified as a search ...


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