February 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES H. CURRIE, A/K/A LAWS CURRIE, A/K/A JAMES HERBERT, A/K/A JAMES LAWS, A/K/A JAMES LAWSCURRIE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-05-0897.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2011 -- Decided Before Judges Yannotti and Skillman.
Defendant James H. Currie was charged under Middlesex County Indictment No. 08-05-0897 with second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(b). After his motion to suppress was denied, defendant pled guilty to the offense and was sentenced to five years of incarceration, with a five-year period of parole ineligibility. He appeals from the judgment of conviction dated March 4, 2009. We affirm.
Testimony presented at the hearing on defendant's suppression motion revealed the following. At approximately 9:45 p.m. on March 23, 2008, New Brunswick police officers Amish Shah (Shah) and Brad Burdell (Burdell) were patrolling the area near Suydam Street. Shah testified that this is a high crime area, where there have been many drug arrests and weapons found.
While driving down Suydam Street, Shah and Burdell noticed a blue Ford Taurus, which was accelerating quickly and being driven erratically. According to Shah, the driver of the Taurus made an illegal U-turn in an erratic manner, near the corner of Lee Avenue and Suydam Street. Another vehicle had to stop abruptly to avoid a collision.
Shah and Burdell pulled the Taurus over and activated the emergency lights on their police vehicle. Burdell approached the driver's side and Shah approached the passenger side of the car.
Defendant was in the driver's seat and co-defendant Danette Weeks (Weeks) was in the front passenger seat. Burdell asked defendant for his license, vehicle registration and insurance card.
According to Shah, the defendant's teeth were clenched. He mumbled something that was not understandable. Burdell again asked defendant for his license, registration and insurance card. Defendant said that he did not have any paperwork because his mother owned the car. Burdell asked defendant if he had any kind of identification, and defendant replied that he did not.
Burdell asked defendant to state his name and date of birth so that he could determine if he had a driver's license. Defendant mumbled again and said that his license was suspended. According to Shah, defendant's teeth were "clenched down" and he was mumbling as he was "trying to respond" to the officer's inquiries.
Burdell observed a piece of a plastic bag protruding from defendant's mouth. Burdell asked defendant to exit the vehicle. Defendant got out and the officers had him face the vehicle. In response to further inquiry, defendant gave his name and date of birth. Shah observed what appeared to be a lump under defendant's bottom lip. The officers questioned defendant about the piece of plastic protruding from his mouth.
Before defendant could respond, he began to cough and spit out two small plastic bags, which appeared to contain marijuana. Shah said that, based on his training and experience, he believed that they were two "dime bags," each with a street value of ten dollars. Defendant was placed under arrest.
Shah said that defendant was upset, but he was placed in the police vehicle without a struggle. Burdell walked to the passenger side of the vehicle and asked Weeks whether she had a license to drive. She said that she did not. Shah asked her to step out of the vehicle.
As Weeks exited the vehicle, Shah observed what appeared to be the barrel of a handgun on the floor of the car, protruding from underneath the passenger seat. Shah said he was standing at the door of the passenger side of the vehicle when he made that observation. He observed about three or four inches of the barrel of the handgun.
Weeks was placed under arrest. Another patrol vehicle arrived on the scene and Weeks was placed in that vehicle. Shah and Burdell ordered defendant to exit their police car because the handgun that was found did not have a magazine. Shah believed there must be a magazine somewhere in the immediate vicinity of the gun. Shah and Burdell attempted to pat down defendant to see if he was in possession of the magazine or any other contraband.
According to Shah, at that point, defendant was "extremely upset." Defendant was kicking his legs about and moving his body away as the officers were trying to search his pockets. In defendant's pocket, the officers found a magazine for the handgun, which contained five hollow-point bullets. Defendant was returned to the police car and taken to police headquarters.
In an oral decision placed on the record on July 24, 2008, the trial court stated that it found Shah's testimony to be credible in all respects. The court said that the officers had acted reasonably in stopping the car, asking defendant to get out, placing him under arrest and securing him in the police vehicle. The court noted that defendant's arrest was itself not a sufficient justification for asking Weeks to exit the car.
The court pointed out, however, that neither defendant nor Weeks could provide documentation concerning the ownership or possession of the car; neither had a driver's license; the vehicle had been stopped in a high crime area; Weeks probably was aware of the contraband that defendant attempted to conceal; and it was reasonable for Shah to search the glove compartment of the car to determine the identity of the owner.
The court stated that Shah could not search the glove box and the passenger compartment of the car for the ownership documents without having Weeks exit the vehicle. The court pointed out that when Weeks was exiting the vehicle, Shah observed the gun on the floor of the car. The court stated that the gun was observed in plain view by an officer who was lawfully performing his duties, searching about for ownership evidence of the car and that while he was in the place that he was entitled to be and looking where he was entitled to look, he saw this gun in plain view, [and] seized it . . . because it was found on the floor on the passenger side where Weeks [had been sitting].
The court concluded that the officer's conduct was reasonable.
The court also addressed the issue of inevitable discovery. The court noted that defendant had been lawfully arrested and secured in the police car. The court said that "surely" defendant would have been subjected to a thorough search "once the police were in control of the situation[,]" and such a search would have revealed the magazine from the handgun, which would have given the officers probable cause to search the vehicle. The court concluded that it was inevitable that the gun would have been found eventually.
The court entered an order dated July 24, 2008, denying defendant's motion to suppress. Thereafter, defendant pledguilty to second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(b). He was sentenced on March 4, 2009, in accordance with the plea agreement to a five-year term, with a five-year period of parole ineligibility.
On appeal, defendant raises the following arguments for our consideration:
AS THE STATE EXCEEDED ITS AUTHORITY IN SEIZING WEEKS AND ORDERING HER TO EXIT THE TAURUS, THE RESULTANT UNCONSTITUTIONAL SEARCH REQUIRES SUPPRESSION OF THE EVIDENCE AND REVERSAL OF THE MOTION COURT'S CONTRARY DECISION AS IT VIOLATES THE NEW JERSEY STATE CONSTITUTION (ART. 1, PARA. 7).
THE DOCTRINE OF INEVITABLE DISCOVERY IS INAPPLICABLE TO THIS MATTER AND, EVEN IF APPLICABLE, WOULD BE INSUFFICIENT TO CURE THE UNCONSTITUTIONAL ACTIONS BY LAW ENFORCEMENT.
The Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution protect citizens from unreasonable searches and seizures "by requiring warrants issued upon probable cause" unless the search or seizure falls within one of the recognized exceptions to the warrant requirement. State v. Johnson, 171 N.J. 192, 205 (2002). The "plain view" doctrine is one such exception. Id. at 206; Coolidge v. New Hampshire, 403 U.S. 443, 465, 92 S. Ct. 2022, 2037, 29 L. Ed. 2d 564, 582 (1971).
The "plain view" doctrine applies if the law enforcement officer is lawfully in the viewing area, the evidence is discovered "inadvertently," and it is "immediately apparent" that the items in plain view are evidence of a crime or contraband. Johnson, supra, 171 N.J. at 206-07 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).
Here, defendant argues that the "plain view" exception does not apply. Defendant notes that the car that defendant was driving was stopped for a traffic violation. He contends that there was no evidence that Weeks had engaged in any criminal conduct, and the State did not point to any specific and articulable facts that would give the police concern for their safety. Thus, defendant contends that Shah and Burdell did not have any basis to order Weeks out of the car and, therefore, Shah was not lawfully in the area from which he observed the handgun.
In support of these arguments, defendant relies upon State v. Smith, 134 N.J. 599 (1994). There, the Court stated that to justify an order requiring a passenger to exit a car stopped for a traffic violation the officer need not point to specific facts that the occupants are "armed and dangerous." Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car. [Id. at 618.]
See also State v. Mai, 202 N.J. 12, 22 (2010) (reaffirming Smith and refusing to hold that an officer making a traffic stop may routinely order passengers out of the stopped car pending completion of the stop).
In our view, defendant's reliance upon Smith is misplaced. Here, defendant's vehicle was initially stopped for a motor vehicle violation but, before the officers asked Weeks to exit the car, they learned that defendant had been operating the car without a license, Weeks did not have a driver's license, neither defendant nor Weeks could produce the vehicle registration or insurance card and defendant was arrested after he was found in possession of suspected marijuana. We are satisfied that, under these circumstances, the officers were justified in taking reasonable steps to secure the vehicle. See State v. Alston, 279 N.J. Super. 39, 46 (App. Div. 1995) (holding that police could ask passenger to exit car after traffic stop when they learned that defendant had been driving while his driving privileges were revoked).
Furthermore, because defendant and Weeks could not produce a registration or insurance card for the vehicle, the officers could reasonably believe that the car may have been stolen. Therefore, the officers were justified in entering the vehicle to seek some indicia of ownership and asking Weeks to leave the car so that they could do so. State v. Pena Flores, 198 N.J. 6, 31 (2009) (holding a police officer was authorized, after driver failed to produce proof of ownership, to search areas of the vehicle in which such proof might be expected to be found).
Moreover, even if Smith were applicable in this situation, we are convinced that the officers reasonably had a heightened awareness of danger. As Shah testified, the vehicle was stopped in a high crime area, where there have been many drug arrests and weapons found. Defendant also was found with two plastic bags of suspected marijuana. In addition, as we stated previously, the car may have been stolen.
We are satisfied that, under these circumstances, "an objectively reasonable officer" could order the passenger to exit the car in order to secure the scene "in a more effective manner[.]" Smith, supra, 134 N.J. at 618; see also State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (holding that police were justified in asking passenger to exit vehicle after traffic stop when the driver was found with a plastic bag that appeared to contain marijuana, the male driver produced registration with a woman's name, and the passenger disobeyed the officer's instruction to keep his hands on dashboard).
Defendant additionally argues that the trial court erred by finding that the seizure of the handgun was permissible under the inevitable discovery doctrine. In view of our determination that the warrantless seizure of the gun was permissible under the plain view doctrine, we need not address this issue.
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