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State v. Thomas

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 14, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEE DAWN TROUTWINE THOMAS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-07-1598.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 19, 2010

Before Judges Lisa and Alvarez.

After defendant's motions to suppress physical evidence and evidence of his wiretapped conversations were denied, he pled guilty to first-degree armed robbery. In accordance with the recommendation in the plea agreement, he was sentenced to twelve years imprisonment subject to an 85% parole disqualifier and five years parole supervision as required by the No Early Release Act, N.J.S.A. 2C:43-7.2. In the appellate brief filed by his attorney, defendant presents the following arguments:

POINT I

THE DEFENDANT'S ARREST WAS THE RESULT OF AN UNLAWFUL DETENTION, AND HIS SUBSEQUENT CONVICTION WAS ACCORDINGLY IMPROPER. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.

POINT II

TELEPHONE CALLS MADE FROM THE JAIL WHICH WERE FORWARDED TO A DETECTIVE VIA THE PURPORTED AUTHORIZATION OF A GRAND JURY SUBPOENA WERE ILLEGALLY SEIZED, NECESSITATING SUPPRESSION. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.

POINT III

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

In a supplemental pro se brief dated June 25, 2009 and filed

June 26, 2009, defendant presents the following argument:

POINT I

INVESTIGATOR LESTER OSBORNE WAS REQUIRED TO ISSUE A SUBPOENA IN ORDER TO OBTAIN THE DEFENDANT'S INMATE CALLS FROM GLOBAL - TEL -LINK, PRIOR TO DISCLOSING THE CONTENTS OF THOSE RECORDINGS TO DET. WILBERT OF THE PROSECUTOR'S OFFICE, IN THAT INVESTIGATOR LESTER OSBORNE HAD NO PARTICIPATORY INTEREST IN THE MONITORING OR RECORDING OF THOSE COMMUNICATIONS, ON EQUIPMENT EXEMPT UNDER N.J.S.A. 2A:156A-2(d)(1). U.S. CONST. AMEND. IV; N.J. CONST. ART. 1, PAR. 7.

In an additional pro se supplemental brief dated March 1, 2010 and filed March 23, 2010, defendant presents the following arguments:

POINT I

INVESTIGATOR LESTER OSBORNE (A JAIL OFFICIAL) WAS REQUIRED TO OBTAIN A WARRANT OR TRIAL SUBPOENA, BEFORE SEIZING THE DEFENDANTS [SIC] STORED RECORDINGS FROM GLOBAL-TEL-LINK. U.S. CONST. AMEND. IV; N.J. CONST. ART. 1, PAR. 7.

POINT II

THE INVESTIGATIVE DETENTION OF THE DEFENDANT, FOLLOWING THE TRAFFIC STOP, WAS NOT SUFFICIENTLY LIMITED TO THE CIRCUMSTANCES THAT JUSTIFIED THE TRAFFIC STOP. THUS, THE EXTENDED CUSTODIAL DETENTION WAS NOT PERMITTED UNDER THE FOURTH AMENDMENT. U.S. CONST. AMEND. IV; N.J. CONST. ART. 1, PAR. 7.

POINT III

THERE WAS NO WARRANT OR EXIGENT CIRCUMSTANCES JUSTIFYING THE SEARCH OF THE BOXES, WHICH ULTIMATELY REVEALED THE SHIPPING ADDRESS THAT LINKED THE CLOTHING TO CRIMINAL CONDUCT. U.S. CONST. AMEND. IV; N.J. CONST. ART. 1, PAR. 7.

We reject defendant's arguments and affirm.

I.

These are the relevant facts developed at the suppression hearing. At about noon on November 27, 2006, Sergeant Richard Oppegaard of the Neptune City Police Department was patrolling Route 35 when he noticed a tan pick-up truck that was "overloaded with boxes and clothing in the back." The truck had two occupants. Defendant was later identified as the passenger. Oppegaard observed that neither occupant was wearing a seatbelt and the driver was using a cell phone. The truck had a temporary Florida license plate.

Oppegaard pulled the truck over and called the stop in to headquarters. He asked the driver to produce his license, registration and insurance card. The driver was unable to do so, but produced a "purchase agreement" and a "registration type of certificate" from Florida. Defendant informed Oppegaard that the woman identified in the documents was his girlfriend, who lived in Jacksonville, Florida. The registration document contained insurance information for the truck.

The driver insisted that he had a driver's license and believed it was somewhere in the truck. Oppegaard allowed the two men to search the passenger compartment, which also contained clothes behind the driver's seat, some of which were in plastic bags and boxes. Both occupants were allowed to get out of the truck to facilitate their search of the passenger compartment area, looking for the driver's license. Oppegaard noticed that defendant took one of the boxes out of the truck and placed it on the ground outside the passenger side of the vehicle. The two men searched for the driver's license for about ten to fifteen minutes, but never found it.

The driver told Oppegaard his name was "Trent Lamar James," and he provided his date of birth, address and social security number. Defendant provided a non-driver identification card issued by the State of Florida. The driver was patted down and placed in the rear of Oppegaard's patrol car.

In response to Oppegaard's inquiry regarding the clothing, the men stated they had purchased the clothing, put it in a storage facility from which they had recently retrieved it, and they were transporting it to Florida. The clothing involved was new; much of it was contained in plastic bags or boxes, with labels affixed. The men could not recall the name of the storage facility in Newark from which they said they had just picked up the clothing. Oppegaard's suspicions were further aroused by the fact that Route 35 would not take the men to Florida, and they were forty-five minutes to an hour away from the New Jersey Turnpike, the logical road to be taken from Newark toward Florida. It was also suspicious that the men intended to travel more than 1000 miles to Florida transporting a large quantity of new clothing in an open pick-up truck, unprotected from the weather.

Oppegaard had called in the driver's identifying information to dispatch. However, he was informed that the police were not able to verify any of the information.

A back-up officer from Neptune arrived. Because neither defendant nor the driver could produce a valid driver's license, Oppegaard determined that the truck would have to be impounded. Further, he recognized that the police would have to inventory and store the "ton of clothing." Based upon these very suspicious circumstances, Oppegaard placed defendant in the back of the other police vehicle and called for detectives to come to the scene to investigate.

Neptune Detective James Isacson eventually arrived at the scene between ten to thirty minutes later. In addition to observing the large quantity of clothing in the open truck, Isacson noticed boxes on the ground and in the bed of the truck, most of which were opened. He observed the words "Fashion Depot" on the boxes in the truck, and he also noticed that the box on the ground contained a shipping address in Long Branch.

At Isacson's request, Neptune dispatch contacted the Long Branch Police Department, and learned that the Fashion Depot store there had recently been robbed by two individuals armed with a "black pellet handgun."

Meanwhile, after the detectives had arrived, Oppegaard returned to the truck and located a wallet on the front seat under the arm rest. This was about forty-five minutes to an hour after the initial stop. The wallet contained a photo driver's license, which matched the driver of the truck. However, the name on the license was that co-defendant Ricky Conaway. When confronted with this document, the co-defendant admitted that he was Ricky Conaway, and not Trent Lamar James. Conaway was placed under arrest for providing false information to the police. A records check revealed that Conaway's license was suspended.

After Isacson learned of the robbery of the Fashion Depot, he patted down defendant for safety reasons, but did not find any weapons on him. Defendant was then placed under arrest, handcuffed, and placed in a patrol car. Both men were now under arrest and provided with Miranda*fn1 warnings. Oppegaard then asked Conaway about the handgun used in the robbery, and Conaway advised that defendant had the handgun in his possession, but put it in the box that was on the street as he exited the pick- up truck. Isacson went to the box on the ground near the truck, and discovered inside a black.380 Barretta semi-automatic handgun. Both men were then removed from the scene.

The remaining factual information, which pertains to the wiretap issue, was not developed through testimony at the suppression hearing. It appears that those facts were not in dispute. Accordingly, an evidentiary hearing was not required and the judge relied upon the factual presentations in the parties' briefs.

Defendant and Conaway were lodged in the Monmouth County jail. At some point, Conaway informed prison authorities, who in turn notified the Monmouth County Prosecutor's Office, that defendant was attempting to hire someone to kill the robbery victim or take other measures to prevent the victim from testifying. Conaway said defendant was attempting to make these arrangements by using a telephone in the jail.

Detective Jeffrey Wilbert of the Monmouth County Prosecutor's Office issued a subpoena duces tecum to Global Tel Link, a private contractor that recorded all out-going calls from the jail. The subpoena provided that the jail calls be forwarded in "real-time" to the detective's cell phone while they were being monitored by jail personnel. It also directed the production of recordings of defendant's past conversations.

Based upon information derived from these intercepted conversations, additional charges were lodged against defendant for witness tampering, attempted murder, and conspiracy to commit murder.

Pursuant to jail protocol, inmates are routinely advised that their phone calls could be monitored, and this information is included in the inmate handbook. Further, a recording at the beginning of each call informs the caller that the call may be monitored. However, sheriff's officers do not routinely listen in on phone calls by inmates.

II.

We first address the denial of defendant's motion to suppress evidence seized from the truck in connection with the motor vehicle stop. Defendant does not dispute the validity of the stop. He argues, however, that although Conaway engaged in suspicious behavior by providing false information, defendant produced valid identification, the mere fact that the truck was overloaded with clothing did not provide a basis to believe the items were connected to illegal activity, and his and Conaway's detention were unjustifiably prolonged. Defendant also argues that information obtained from the boxes by Isacson was obtained improperly because it was not immediately apparent that the boxes were evidence of a crime. Defendant further argues that any exigencies which may have existed dissipated after the men were placed in custodial detention.

Judge DeStefano rejected these various arguments in a thorough and well-reasoned written decision dated January 18, 2008. We affirm denial of the motion to suppress physical evidence seized from the truck in connection with the motor vehicle stop substantially for the reasons expressed by Judge DeStefano. We add the following comments.

To determine if a search or seizure was constitutional, courts consider "whether the conduct of the law-enforcement officer who undertook the search was objectively reasonable." State v. Maristany, 133 N.J. 299, 305 (1993). The determination is made by evaluating the totality of circumstances. State v. Miller, 47 N.J. 273, 278 (1966). Automobile stops, even if brief, qualify as a "seizure" of "persons" within the meaning of the Fourth Amendment. State v. Dickey, 152 N.J. 468, 475 (1998). Therefore, automobile stops must satisfy the Fourth Amendment's basic requirement of reasonableness. State v. Hickman, 335 N.J. Super. 623, 634 (App. Div. 2000).

As we have stated, defendant does not dispute the validity of the initial stop. Although the stop was initiated for traffic violations, "the reasonableness of the detention is not limited to investigating the circumstances of the traffic stop."

Dickey, supra, 152 N.J. at 479. "If, during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances 'give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'" Id. at 479-80 (quoting United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993)). Although Conaway was unable to produce his license upon request, defendant was able to produce identification, albeit not a valid driver's license. Nevertheless, the delays associated with the verification of the men's identification provided an opportunity for Oppegaard to inquire about the overwhelming amount of clothes in the truck. See Hickman, supra, 335 N.J. Super. at 636 ("[I]f a motor vehicle is subject to a valid police stop, the police may question the occupants, even on a subject unrelated to the purpose of the stop,... so long as such questioning does not extend the duration of the stop.").

The inconsistent and unbelievable stories provided by the two men that arose out of this questioning "justifiably aroused" suspicion of illegal activity beyond the traffic stop, and thus provided justification for expanding the investigation. See State v. Baum, 199 N.J. 407, 424 (2009); Dickey, supra, 152 N.J. at 480; State v. Baum, 393 N.J. Super. 275, 287 (App. Div. 2007), aff'd in part and modified in part, 199 N.J. 407 (2009); see also State v. Johnson, 274 N.J. Super. 137, 152 (App. Div.) ("[W]here [an] officer has an articulable and reasonable suspicion that criminal activity is afoot, the vehicle and the occupants are subject to an investigatory detention."), certif. denied, 138 N.J. 265 (1994).

The stop was further prolonged by the circumstance that neither occupant of the truck could produce a valid driver's license, thus necessitating impoundment of the truck. Further, based upon the rapidly developing events that were unfolding, the responding patrol officers were justified in calling for detectives to come to the scene to investigate likely criminal activity, and this resulted in further prolonging of the detention of defendant and Conaway.

The name and address of the Fashion Depot store were observed in plain view on the side of the boxes. After information was received about the armed robbery, Conaway told the police where defendant had placed the gun, namely in a box that defendant had placed on the side of the road. Defendant certainly had no expectation of privacy in a box placed on a public roadway. Further, exigent circumstances dictated that a gun, recently used in an armed robbery, could not be left in a public place, but needed to be found and seized for the protection of the public.

The police activity at the scene of this stop was reasonable in all respects. As the events progressed, more and more information became available implicating defendant and Conaway in a serious crime. The fruits of that crime, an armed robbery, were sitting in plain view in an open pick-up truck. The police would have been derelict in their duties had they not pursued this information, detaining the perpetrators as long as reasonably necessary, and seizing the evidence in front of them. Likewise, the gun, an instrumentality used in the commission of the crime, was properly seized in the process.

III.

We next consider the wiretapped telephone conversations of defendant from the jail. First, we note that all charges directly related to those conversations were dismissed as part of the plea agreement. Nevertheless, we reject the State's argument that the issue is thus rendered moot. The substance of the intercepted conversations could be deemed admissions with respect to the armed robbery and, even if they were not, a ruling that they were admissible in evidence had the capacity to strengthen the State's hand in the plea negotiations.

Judge DeStefano granted defendant's motion to bar evidence of his intercepted conversations with respect to the real time future conversations directed to the police pursuant to the subpoena duces tecum. However, he denied the motion with respect to defendant's previously recorded conversations. The entire analysis was based upon the provisions of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-1 to -26.

For the reasons that follow, we conclude that the partial denial of defendant's motion to bar from evidence some of his intercepted conversations is not properly before us. Accordingly, we will not address the issue substantively.

When defendant pled guilty, he did so unconditionally. He did not reserve the right to appeal the partial denial of his motion pertaining to intercepted conversations. In general, "a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea." State v. Crawley, 149 N.J. 310, 316 (1997). The plea constitutes a waiver of all issues, including constitutional claims. State v. Marolda, 394 N.J. Super. 430, 435 (App. Div.), certif. denied, 192 N.J. 482 (2007); see also State v. Morales, 182 N.J. Super. 502, 508 (App. Div. 1981) (stating that guilty pleas without reservation of rights with respect to a constitutional issue constitute a complete waiver of that issue), certif. denied, 89 N.J. 421 (1982).

Our court rules recognize conditional pleas, in which a defendant can reserve "the right to appeal from the adverse determination of any specified pretrial motion." R. 3:9-3(f). Our rules further provide for the automatic preservation of the right to appeal denial of a motion to suppress evidence. R. 3:5-7(d). However, that rule pertains to the suppression of physical evidence. State v. Robinson, 224 N.J. Super. 495, 500 (App. Div. 1988); Morales, supra, 182 N.J. Super. at 508-09. Rule 3:5-7(d) does not apply to the suppression of evidence obtained in violation of the Wiretap Act. State v. Keegan, 188 N.J. Super. 471, 475-76 (App. Div.), certif. denied, 93 N.J. 320 (1983).

Accordingly, because the issue was not preserved, it is deemed waived. It is not properly before us, and we decline to consider it on the merits.

IV.

We next address defendant's sentence, which he claims is excessive. We find no merit to the argument. From our review of the record, we are satisfied that the judge's findings regarding aggravating and mitigating factors are supported by substantial credible evidence, that the judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, that the sentence is not manifestly excessive or unduly punitive, and that it does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.


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