On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-05-0606.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Fasciale.
This is the second time defendants' contention that the trial judge erred in denying their motion to suppress evidence has been before us.*fn1 In a prior appeal, we concluded that questions remained about the grounds upon which the State relied to justify the warrantless search of a fenced-in backyard. State v. Lane, 393 N.J. Super. 132 (App. Div.), certif. denied, 192 N.J. 600 (2007). Although the trial judge partially addressed the issues required by our earlier mandate, his findings are so intertwined with -- indeed, completely overshadowed by -- his derogatory asides about our earlier decision, and other irrelevant comments regarding the state of the law, as to compel our determination that a new hearing is required.
No purpose would be served by repeating at length the circumstances underlying our disposition of the earlier appeal. Those circumstances are fully described in our earlier opinion. Ibid. And there is no point in explaining at length the reasons for today's judgment; the trial judge's thirty-six page opinion speaks for itself. We conclude there must be a remand for a fair and impartial examination of the reasonableness of the search and seizure in question.
To place our determination in its proper setting, we first briefly describe the unusual search and seizure that was more thoroughly discussed in our earlier opinion. In a nutshell, at 9:18 p.m. on September 6, 2002, an armed robbery took place at Strauss Auto on South Broad Street in Hamilton Township. Id. at 139. A short time later, police arrived at defendant Lane's residence, where they found Lane in the driveway, looking under the hood of his vehicle, which matched a description given of the getaway car. Id. at 140-41. The officers did not arrest Lane but requested that he accompany them to the police station for questioning. Id. at 141. He agreed, and at some point as or after they had left the premises, Detective Braconi peered through an open gate in a wooden fence and, with his flashlight, noticed a headband in the backyard that matched a description of something worn by one of the perpetrators. Ibid. Braconi then drew his weapon and proceeded into the backyard to investigate. Ibid. He picked up the headband and concluded it "had been recently worn because it was 'still warm.'" Ibid. Then, while in the backyard, Braconi noticed a shed with an open door and called for assistance. Ibid. He "'vocally identif[ied] himself as a police officer,' and scanned the interior with his flashlight." Id. at 142. While looking in, Braconi spotted an automatic rifle protruding from beneath a couch inside the shed; other evidence of the robbery was uncovered upon a subsequent examination of the interior of the shed. Ibid.*fn2
The State claimed this warrantless search was not unreasonable because it was based on what Braconi observed in plain view and while conducting a lawful protective sweep. Id. at 143. The trial judge agreed with the State's contentions and denied the motion to suppress the automatic rifle and the headband.*fn3 Ibid. In vacating the order denying the motion and remanding for additional findings, we focused on whether Braconi's observation of the headband was inadvertent, which required a determination of whether he knew of the presence of evidence in advance and relied on the plain-view doctrine only as a pretense. Id. at 146-47. Contrary to the judge's suggestion in his second opinion, this ruling was not the product of some newly-concocted theory but rested on firmly-established principles. See State v. Bogan, 200 N.J. 61, 79 n.10 (2009); State v. Johnson, 171 N.J. 192, 211 (2002). These principles required a determination of whether the officer inadvertently saw the item from a location where he had a right to be. In addition, we remanded so the judge could determine whether it was "immediately apparent" to Braconi that the item was related to criminal activity. Lane, supra, 393 N.J. Super. at 149. This aspect also was not newly-minted but required by Arizona v. Hicks, 480 U.S. 321, 327, 107 S. Ct. 1149, 1153, 94 L. Ed. 2d 347, 355 (1987), among others.
The claimed right to conduct a protective sweep of the backyard -- the sole ground for the search of the shed that produced the weapon -- was based on the officer's right to enter and remain in the backyard, a determination not reachable absent favorable findings for the State regarding the claim of plain view alluded to above. As we previously explained, the legitimacy of the protective sweep is founded on the understanding that police may not "illegally enter or remain in the area in which the sweep is performed," Lane, supra, 393 N.J. Super. at 155, that, in this case, turns on the findings that the judge must make regarding the application of the plain view exception and the admissibility of the headband. Should the judge determine that Detective Braconi had no right to peer through the opening in the fence into the backyard, then it follows that he had no right to enter the backyard; and, if Detective Braconi had no lawful right to be in the backyard, then any evidence found by him in the course of the following protective sweep would be inadmissible. [Ibid.]
We additionally directed the judge to consider the credibility of the officer's claim that the backyard area was dangerous, and we suggested numerous areas that might be relevant to that determination. Id. at 155-58.
Nearly one year later, the trial judge conducted a hearing into the questions posed by our mandate. Detective Braconi testified over the course of two days in April 2008. Nine months later, the judge issued a written decision that not only expressed disdain for our mandate and established Fourth Amendment principles but also failed to address some of the issues for which we remanded.
Putting aside the judge's aforementioned irrelevant asides, which, as we have noted, speak for themselves, the decision that we have been asked to review does not -- in certain highly relevant respects -- address the questions posed by our mandate.
For example, the judge failed to make additional findings regarding his application of the plain view exception. In order to establish the plain view exception, the State must show that (1) the police officer was "lawfully in the viewing area"; (2) the officer discovered the evidence inadvertently, "meaning that he did not know in advance where evidence was located nor intend[ed] beforehand to seize it"; and (3) "it has to be 'immediately apparent' to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." Bogan, supra, 200 N.J. at 79 n.10. In previously examining the facts relevant to these elements, we ascertained that the trial judge did not determine "whether Detective Braconi's observations were inadvertent or were a mere 'pretext' for exploring defendant's backyard in the hope of discovering, in plain view, evidence to satisfy his curiosity about defendant's involvement in the robbery." Lane, supra, 393 N.J. Super. at 147. In response to our mandate, the trial judge only cursorily stated that "the detective . . . made . . . an 'inadvertent' discovery of the evidence . . . which was in no way a product of the demeaning characterization of the reviewing court's suggestion of the detective's 'curiosity.'" This unexplained conclusion does not answer the concerns expressed in our earlier opinion.
The judge also never amplified on whether Detective Braconi's discovery of the headband was inadvertent in the sense that it was spotted from a locale where Braconi still had a right to be. We remain uncertain whether the patrol car containing defendant Lane had departed, was departing, or had not yet begun to depart when Detective Braconi scanned the backyard with his flashlight and saw what he then believed to be a headband on the ground. We reiterate and emphasize that the timing of the patrol car's departure was highly important because, with its departure, there remained no ostensible reason for Braconi to stay at the ...