On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-06-2016.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010
Before Judges Wefing, Baxter and Koblitz.
By leave granted, the State appeals from an April 23, 2010 order granting Ronald Haywood, Jr.'s motion to suppress two bottles of liquor and a condom seized from his car. The State also appeals from an April 27, 2010 order denying its motion for reconsideration. After consideration of the contentions raised in light of the facts adduced at the suppression and Miranda hearings, Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966), we remand to the trial judge for further fact finding regarding Detective Brian Polaski's plain view observation of the evidence in defendant's car.
On May 27, 2009, a Camden County Grand Jury returned Indictment No. 09-06-2016, which charged defendant with second-degree luring or enticing a child, N.J.S.A. 2C:13-6; second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 14-2(c)(4); and fourth-degree attempted criminal sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3(b).
The indictment was based on evidence that on December 9, 2008, the Pennsauken Police Department received a report of an attempted luring of G.P., a thirteen-year-old girl, by "Junior," a male reported to be in his twenties. G.P. reported that Junior approached her in December while she was wearing her middle school uniform. G.P. identified Junior from his MySpace profile, and she told police he approached her several times in person and commented on how "cute she was." G.P. also reported that Junior told her she looked "a little too young," but he "wanted to get to know her." Junior had communicated with G.P. over her MySpace page and given her his telephone number.
After the police identified Junior as thirty-two-year-old defendant Ronald Haywood, Jr. through internet subscriber information, G.P.'s mother signed a third-party consent form to allow Detective Polaski to intercept and record electronic communications from G.P.'s MySpace page. Polaski, pretending to be G.P., continued to communicate with defendant.
From December 29, 2008, until February 2, 2009, Polaski, acting as G.P., communicated with defendant. Defendant expressed his desire to meet with G.P. During the February 2, 2009 communication, they arranged to meet later that day. Polaski, still acting as G.P., told defendant to bring liquor and condoms to the meeting at Tippin's Pond.*fn1
Polaski observed defendant's Chrysler Pacifica enter, wait for "a couple minutes" and then exit the parking lot area at Tippin's Pond. Since Polaski was in an unmarked police car, he radioed for a marked police car with lights and sirens to stop defendant's car. Earlier that day, Polaski had alerted Officer Kern that he might ask him to make this stop and had found out that there was an open warrant for defendant's arrest. Officer Kern, in a marked police car, stopped defendant on River Road. After Kern stopped defendant, Polaski arrived at the scene.
Polaski then called police headquarters and obtained permission from a police sergeant to impound the car. Polaski personally drove the car less than a mile to the police station.
The police searched defendant's home on the night of his arrest pursuant to a search warrant, and nine days later, on February 11, 2009, Polaski obtained a search warrant for defendant's car, which was signed by the same judge who conducted the hearings in this matter. In the search warrant, the trial judge authorized police to seize "[t]he alcohol and condoms that were discussed during a conversation between [Junior] and Detective Polaski on MySpace. The items were seen in plain view inside the car . . . belonging to Ronald E. Haywood, Jr. after he was arrested."
On February 5, 2010, after a Miranda hearing, the judge denied defendant's motion to exclude his taped statement from trial. At the Miranda hearing, Polaski testified under oath that he did not see the items in the car until after it was parked in the back lot of the Pennsauken Police Department after being impounded. He said that at the scene someone told him what was in the car, and "then when it was brought to the back of the police station, that is when I asked - - to look in there." He testified that no inventory was taken of the car's contents.
After defense counsel indicated he wished to file a motion to suppress the evidence found in the car based on Polaski's testimony, the prosecutor stated:
Judge, just for the record, this would not be the officer or the detective that we would call [at a suppression hearing]. We would call the officer who made the motor vehicle stop, who can actually testify as to the plain view. And that's why I would ask that questions regarding the actual search of the condom and the liquor not be addressed to this officer if he has no personal knowledge.
Kern testified at the subsequent suppression hearing on April 9, 2010, that prior to Kern starting his 3:00 p.m. shift, Polaski told him that "he might need a marked patrol car . . . to conduct a vehicle stop on an individual on active warrant, said the individual was wanted for assault, use caution, he'd be operating a '04 Chrysler Pacifica . . . ." Polaski gave Kern defendant's license plate number. Later, Kern received a radio request to stop defendant's car. Kern observed the car make a right turn at a red light without coming to a complete stop. He activated his overhead lights, stopped the car, identified defendant and arrested him on an active arrest warrant for simple assault unrelated to this matter. N.J.S.A. 2C:12-1(a)(1). Kern also issued defendant a traffic summons for failure to come to a complete stop before turning right at a red light. N.J.S.A. 39:4-1.15(b). He said that shortly after stopping defendant, Polaski and another detective arrived on the scene. Kern testified that after he placed defendant in handcuffs, he walked defendant back to the marked police car and then transported defendant to the police station. Kern said as he was arresting defendant, the detectives were standing toward the rear of defendant's car. Kern said Polaski remained with defendant's car, which was legally parked by the side of the road in a residential area where parking is permitted at all times of the day.
Polaski was also called to testify at the suppression hearing.*fn2 Polaski testified that after Kern arrested defendant, Polaski used his flashlight to look inside the car. In contrast to his Miranda hearing testimony, Polaski testified that upon looking in the car from the passenger side, he saw two bottles of alcohol on the floor in front of the passenger seat and a condom in the center console. Polaski also testified for the first time that he impounded the car by personally driving it to the police station, where it was secured for nine days until a search warrant was obtained and the liquor and condom removed.
The judge became perturbed at Detective Polaski's action in driving defendant's car himself and at what he perceived to be dissembling on the part of Polaski. The following colloquy occurred during the detective's testimony, after he related that Patrolman Kern had left the scene with defendant in his custody.
Q. Okay. What did you do?
A. And well, he left the scene with him and then, at that point, that's when I had my flashlight and I'm ...