On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-08-1672.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Miniman and Waugh.
Defendant Edwin Patillo appeals his conviction for (1) second-degree use of personal identifying information of another, contrary to N.J.S.A. 2C:21-17.2(a); (2) third-degree tampering with public records, contrary to N.J.S.A. 2C:28- 7(a)(1); and (3) fourth-degree falsifying or tampering with records, contrary to N.J.S.A. 2C:21-4(a), as well as the resulting aggregate sentence of fifteen years incarceration, during seven and one-half years of which he will be ineligible for parole. We affirm the trial judge's decision denying the motion to suppress the seizure of an identification card with Patillo's picture but another person's name, but remand to the Law Division for reconsideration of the motion as it related to the binder and related documents seized at the time of Patillo's arrest. We also remand for reconsideration of the motion to suppress Patillo's subsequent statements to the police. Because of the remand, we do not reach the other issues raised on appeal.
We discern the following facts and procedural history from the record.
Patillo was in a restaurant in Pleasantville on September 11, 2005, when he was recognized by Atlantic County Sheriff's Officer Robert Demoulin. He had seen Patillo's picture on an Egg Harbor Township Police Department "flier" stating that a warrant had been issued for his arrest. Demoulin contacted the Egg Harbor Township Police Department to notify them of Patillo's whereabouts and confirm that the arrest warrant was still active. He then contacted the Pleasantville Police Department and requested that a police car be dispatched to apprehend Patillo.
Demoulin waited in the parking lot until Pleasantville Detective Chris Taggart arrived. Before leaving, he showed Taggart a copy of the flier with Patillo's picture.
While Taggart waited in the restaurant parking lot for police officers from Egg Harbor Township to arrive, Patillo left the restaurant. He got into the front passenger seat of an SUV, which then exited the parking lot.
The police stopped the SUV carrying Patillo. The female driver was identified as Cynthia Shepperson. Taggart and another officer approached the SUV on the passenger side. Patillo told the officers that his name was Leon Hopewell. Patillo did not provide any identification, but Taggart was uncertain whether he had asked Patillo for it.
Taggart directed Patillo to exit the vehicle because he wanted to determine whether the right person had been stopped. Taggart testified that when Patillo got out of the car, he saw a black binder lying open on the back seat. He was approximately three feet away from the binder when he noticed it. A picture identification card was "protruding" from the binder. According to Taggart, a list of names and other information was visible on an open page in the binder.
Taggart started to retrieve the binder and identification card for the purposes of determining whether the passenger was Patillo, whom he closely resembled, or someone named Hopewell who resembled Patillo's picture on the flyer. As he was reaching for the binder and identification card, Taggart heard Patillo say: "I'm Edwin Patillo." Taggart retrieved the card, which was an employee identification card from Shore Memorial Hospital. Although it had a picture of Patillo, the name on the identification card was Leon Hopewell.
According to Taggart, he did not examine the binder except for the identification card and the open page. The open page contained a list of names, birth dates, and social security numbers. Taggart asserted that he retrieved the identification card to identify Patillo and that he was not searching for evidence or concerned that the binder might contain a weapon.
Shepperson testified that the entire stop lasted five to ten minutes, following which the police officers took Patillo away. She also testified that she was very nervous at the time of the stop. Her recollection was that the notebook was in the back seat, but closed at the time Patillo got out of the SUV. She remembered putting her own papers in the backseat and seeing a closed black binder. She did not remember any police officer taking the binder from the car, and only became aware that the binder had been removed when she was subsequently called by an officer and asked if she knew anything about it. Taggart, however, testified that he asked Shepperson about the binder and that she motioned toward Patillo, indicating that it was his.
According to Taggart, he closed the binder after he examined the identification card. Taggart explained that he took the entire binder, as opposed to just the identification card, because he believed the binder might contain evidence of other crimes. He had intended to turn it over to an Egg Harbor Township police officer, but the officer had already placed Patillo in his patrol car and left. Consequently, Taggart notified Egg Harbor Township Detective Sidney Terrell, the lead investigator for the case in which Patillo's arrest warrant had been issued, about the identification card and binder. At Terrell's request, Taggart brought the binder to the Egg Harbor Township Police Headquarters.
Terrell testified at the suppression hearing concerning the binder and related items that he received the binder from Taggart in a paper bag. On examining the binder, he noticed that the zipper used to close the binder was open. He believed that Taggart may have given him the identification card separately, but he later testified that Taggart told him that the identification card and a Commerce Bank card were inside the binder. When asked to confirm that Taggart had not given him anything separately, Terrell responded: "That's correct."
Terrell testified that he did not look in the binder, or the two notebooks inside the binder, because he "knew that if there was anything within those notebooks [he] would have to obtain a warrant to do it." He further testified that he sealed the binder, and entered it in the evidence log as a "black leather notebook holder containing two paper notebooks and documents." When asked if he opened the binder to read anything in detail, he answered "no." He also testified that he was aware that there were loose papers in the binder, but that he did not read them.
According to Terrell, when Patillo was questioned that afternoon, he stated that he was related to Hopewell, who had given him permission to use his identity. When Hopewell was interviewed following his arrest on unrelated charges, however, he denied being related to Patillo or allowing Patillo to use any of his identification.
Several weeks later, Terrell obtained a search warrant permitting him to examine the contents of the binder. Although the application for the search warrant is not part of the record, it is apparent from the transcript of Terrell's testimony that he represented to the warrant judge that Taggart had looked in the binder because he was concerned about weapons. However, he testified at the suppression hearing that Taggart had not told him so and that it was an assumption on his part.
Terrell was apparently also quite specific on the application in describing what he anticipated would be found in the binder. The following exchange took place at the suppression hearing:
Q:... [H]ow did you know to write on your application about the utility bills and different account holders' Social Security numbers, date of births, credit card numbers and drivers license in other people's names?
A: It was obvious to me that there were other items... within this binder other than the, the blue notebook and the black notebook and the Shore Memorial identification card and the Commerce Bank card because of the bulkiness, the bulkiness of the other items, paper items inside here.
Q: But all, for all you knew it could have all been Mr. Patillo's. You did not know that they belonged to or they had other information pertaining to other people, right?
A: That's correct. At that time I did not know that.
Q:... [W]hen you are applying for this search warrant how do you know to be that specific that that's what it contains if you did not see that in the notebook?
A: Bas[ed] on Mr. Patillo's history, past history and my interview of Mr. Patillo I came to that conclusion.
Q:... Mr. Patillo never indicated to you that he had utility bills,... Social Security numbers, date of births, credit card numbers and drivers license ...