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State of New Jersey v. Robert Horn and Damon Cannon


April 15, 2011


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 09-06-1795 and 09-06-1796.

Per curiam.


Submitted January 31, 2011

Before Judges Rodriguez and Miniman.

By leave granted,*fn1 the State of New Jersey appeals from a partial grant of defendants' motion to suppress evidence. We affirm.

Defendant Damon Cannon was charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1)-(b)(3); third-degree possession of heroin with intent to distribute while within a school zone, N.J.S.A. 2C:35-7(a); third-degree distribution of heroin to his co-defendant, Robert Horn, N.J.S.A. 2C:35-5(a)(1)-(b)(3); third-degree distribution of heroin while within a school zone, N.J.S.A. 2C:35-7(a); third-degree receiving stolen property, a nine millimeter handgun, N.J.S.A. 2C:20-7(a); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and second-degree possession of a firearm while committing "a violation of . . . N.J.S.A. 2C:35-5," N.J.S.A. 2C:39-4.1. Horn was charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1)-b(3); and third-degree possession with intent to distribute within a school zone, N.J.S.A. 2C:35-7(a).

Defendants moved to suppress all evidence seized from a motor vehicle. Judge Torkwase Y. Sekou conducted an evidentiary hearing on July 15, 2010. Newark Police Detective Sergeant Joseph Conzentino, a twenty-one-year veteran of the department and member of the gang enforcement division, testified that on February 20, 2010, about 8:00 p.m., he was "riding down" South Nineteenth Avenue as part of the gang division's "proactive enforcement operations." Detective Allen Knight, also a member of the Newark Police Department gang division, rode with Conzentino that night and also testified at the hearing.

In front of a building on South Nineteenth Avenue, Conzentino noticed two men seated in a gold Ford Taurus and two men standing on the sidewalk near the Taurus. The men in the Taurus were later identified as Cannon, in the driver's seat, and Horn, in the front passenger seat. As Conzentino stopped his unmarked police vehicle behind the Taurus, the two men on the sidewalk noticed the detectives and immediately left the area.

Conzentino and Knight approached the Taurus. Although it was dark, a light on a nearby utility pole provided "good" lighting. When Conzentino reached the front of the Taurus, he witnessed Cannon hand Horn a brick of heroin. Conzentino alerted Knight that "it's a brick, it's a brick," and began striking the window with his badge exposed.

Knight immediately opened the passenger door of the Taurus and removed Horn. Because the driver's side door was locked, Knight had to release the lock from the passenger side door. Once Knight unlocked the door, Conzentino removed and arrested Cannon.

After securing Cannon and Horn, Conzentino returned to inventory the Taurus, or check for any evidence "in plain view." Looking into the open glove compartment, he saw several more bricks of heroin and a loaded gun.

Knight's testimony painted a different picture. He explained that it was daylight at 8:00 p.m. on February 20, 2009, because it "stays lighter in the winter" due to daylight savings time. Around 8:00 p.m., they saw "several people walking down the block and stopped at a [Taurus]." Although admitting that the windows on the Taurus were closed, Knight testified that the occupants of the Taurus began a conversation with the men on the sidewalk through the closed window.

As Conzentino parked near the Taurus, the men on the sidewalk did not run, but "quickly vacated the area," or "fled," as indicated in Knight's police report. Because it is "easier to detain" a car than a person "who could get away or discard whatever [contraband] they have," the detectives did not attempt to stop the fleeing men.

Knight walked to the passenger side of the Taurus, and Conzentino approached the driver's side and identified himself to Cannon. Cannon immediately "tossed a brick" to Horn who attempted to throw the brick into the open glove compartment. Because it was daylight, Knight was able to see into the Taurus easily. Seeing the brick, Knight opened the door and removed Horn from the Taurus. As he did, the brick fell from Horn's lap onto the floor of the Taurus. When Horn was secured, Knight went back to the Taurus, retrieved the brick and unlocked the doors to allow Conzentino to remove Cannon. Cannon unsuccessfully attempted to shut the glove compartment as Conzentino removed him from the Taurus. The detectives placed Cannon and Horn inside the police vehicle.

Knight called headquarters to get a case complaint number. During the next five minutes, Conzentino went back to secure the Taurus and discovered six more bricks of heroin and a nine millimeter handgun in the Taurus's open glove compartment. Despite this discovery, the detectives never called back to amend their complaint number to include the additional bricks and the firearm.

According to Knight, he had not noticed the bricks and firearm in the open glove compartment when he initially removed Horn from the Taurus because he had been so focused on recovering the brick that Horn had dropped on the floor. On cross-examination, Knight testified as follows:

Q. [CANNON'S COUNSEL]: Detective, do you know what a stash -- spot and stash location?

A. [DETECTIVE KNIGHT]: Commonly known as box. Yes.

Q. And stash locations are built into cars for the . . . purpose of hiding drugs and other contraband, correct?

A. That's true.

Q. Did this car have a stash location?

A. I later learned that it had.

Q. And when did you learn that it had a stash location?

A. After the vehicle was being impounded and inventoried down at the police garage.

Q. And how did you discover that?

A. The Sergeant was notified by the Lieutenant that there was a box in the car.

Q. When did this notification take place?

A. A day or two days later.

Q. So on the night of the arrest, you were aware that there was a stash box in this vehicle?

A. No.

Judge Sekou noted several inconsistencies in the testimony of Conzentino and Knight. First, the detectives expressed different reasons for their presence that night on South Nineteenth Avenue. They also differed as to whether the men on the sidewalk were actually communicating with Cannon and Horn. Knight's testimony was particularly suspect because it conflicted with the police report that he had authored and because he believed the entire episode occurred in the daylight. Thus, the judge did not find Knight's testimony to be credible with respect to the location of the additional six bricks and firearm:

Detective Knight is the officer who went in the vehicle allegedly and found the brick on the floor. Detective Conzentino said that the object that was tossed to the passenger, he tried to put it in the glove compartment. If the glove compartment is open and you saw someone trying to put something in the glove compartment, not only is that the obvious place to look, but this Court finds that it is absolutely unbelievable that [Knight] could get something off the floor with the glove compartment door open . . . without having to at least close the glove compartment to get to the floor. But he . . . allegedly pulled the defendant out of the car without ever having looked in the glove compartment because he said, he didn't see . . gun and drugs in the glove compartment. He just got the item from the floor.

This is the officer who calls in for the cc number. So by this time, all parties are arrested and I'm assuming he's either outside the vehicle or inside the vehicle but definitely detained.

With all reasonable inferences given to the State as to the objects found in the glove compartment and knowing that there was a box [hidden in the vehicle,] . . . I listened to the officer very carefully when he was asked, do you know where the stash was? He didn't say the normal definition of the stash, an area upon which a criminal defendant would hide or secrete his drugs, so they would not be easily detected. He said, oh, known as a box. Why? Because there was testimony that indicated that a box was found [in the Taurus].

And the reason why this Court believes that he did not see anything in the glove compartment is because it was in the box. So as to the gun and [six bricks allegedly] found in the glove compartment, they are suppressed. The drugs that are found on the floor, they are in.

On appeal, the State contends:





The State argues that Judge Sekou committed an abuse of discretion in finding that the detectives were not credible and failed to give appropriate deference to the detectives' "professional experience and actual familiarity . . . with the area." We disagree.

The State had the burden of proving that the detectives discovered the six additional bricks of heroin and the handgun by a constitutionally appropriate method. The State offered only the detectives' testimony to meet this burden. As the judge found, however, there are numerous factual inconsistencies between the detectives' testimony. Therefore, there is ample evidence in the record to support the judge's finding that the detectives' testimony was not credible with respect to the location of the additional six bricks and the firearm in the glove compartment. She found that the detectives secured Cannon and Horn and conducted a warrantless search of the Taurus. During this search, the detectives discovered the stash box and in it, the six bricks of heroin and the firearm. The judge concluded that Knight lied in order to include those items in the original search of the interior of the Taurus.

She found, and we agree, that the initial seizure of the first brick of heroin was permissible as a result of a plain view observation. After securing Cannon and Horn, the detectives' subsequent search of the Taurus was not valid because at that point there was no justification for dispensing with the warrant requirement.

Where the State seeks to introduce evidence that was seized without a warrant, the State must prove that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Maryland, 167 N.J. 471, 482 (2001) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973)). The State must meet this burden by a preponderance of the evidence. State v. Wilson, 178 N.J. 7, 13 (2003).

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution afford persons the right to be free from unreasonable searches and seizures. A seizure is unreasonable when it is conducted without the authority of a warrant. State v. Cooke, 163 N.J. 657, 664 (2000) (citations omitted). A person is seized when "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980); State v. Tucker, 136 N.J. 158, 164 (1994).

A judge's factual findings and credibility determinations are entitled to substantial deference on appeal. State v. Yohnson, 204 N.J. 43, 62 (2010). We should affirm where those findings are supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999).

Here, the initial contact between the detectives and defendants was not a seizure sufficient to trigger the necessity of a warrant. Rather, where a police officer asks simple questions that a person may voluntarily choose to answer, the stop is a field inquiry. State v. Davis, 104 N.J. 490, 497 (1986) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)). A field inquiry will not escalate to a seizure provided "the officer does not deny the individual the right to move." State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973).

Here, there was no questioning or inquiry of the defendants. The detectives simply approached the Taurus and saw Cannon toss an object that they recognized as a brick of heroin, to Horn, who then attempted to throw it in the glove compartment.

A plain view observation of the visible interior of a vehicle is permissible without a warrant where the officer's presence was lawful; the discovery was inadvertent; and it was "immediately apparent . . . that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Bruzzese, 94 N.J. 210, 236 (1983) (citations and internal quotation marks omitted), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Here, the detectives' presence near the Taurus was lawful as a field inquiry; the discovery of the contraband was inadvertent; and the detectives immediately identified the object Cannon tossed to Horn as a brick of heroin. Thus, the judge was correct in denying the motion to suppress with respect to the first brick.

A search incident to arrest is another well-settled exception to the warrant requirement. State v. Hill, 115 N.J. 169, 173 (1989) (citing Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)). Officers are permitted to search the interior compartment of a motor vehicle incident to the arrest of an occupant if that search is limited to "the area from which an occupant may . . . seize a weapon or destroy evidence." State v. Pena-Flores, 198 N.J. 6, 19 (2009). Of course, where the officers have removed and arrested the occupant, the risk of that person "obtaining a weapon or destroying contraband is . . . eliminated." Ibid. (citing State v. Eckel, 185 N.J. 523, 540-41 (2006)).

Here, the detectives had probable cause to arrest defendants based on the plain view observation of the first brick of heroin. The subsequent warrantless search of the interior of the vehicle was not justified, however, as a search incident to arrest once the detectives had secured Horn and Cannon and removed them from the Taurus. The judge therefore correctly determined that the detectives' search of the Taurus was invalid and suppressed the six additional bricks of heroin and the firearm.

The denial of the motion as to the first brick of heroin and the suppression of the other six bricks and the firearms is affirmed. The matter is remanded to the Law Division, Essex County for trial.

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