May 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERNIE LANE, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAM J. LIVINGSTON, III, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 4, 2011
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 premises casting about for evidence. The judge's conclusory response to our mandate leaves us without the facts critical to a thorough analysis of that crucial issue.
In further explaining that circumstance's importance, our mandate sought the trial judge's examination of "whether there was any principled reason for" Detective Braconi remaining at Lane's residence and scanning the backyard with his flashlight. Id. at 149. The trial judge responded by claiming "[t]here is no constitutional, statutory or case law obligation" to provide a "principled reason" and by declaring that defendant Lane's "moment of departure is meaningless." The judge's additional responses on this point provided no great clarity. In one instance, the judge described Detective Braconi's scan of the backyard as a "semi-simultaneous event" with the other officers' departure. Elsewhere, he found that Detective Braconi's "actions took place more contemporaneously with the acts of his partner and the defendant's preparation to depart and ultimate departure" (emphasis deleted). The judge also said defendant Lane and other officers "had not fully departed . . . at the time Braconi shone his light into the backyard." Imprecise assertions that Braconi's observations were "semi-simultaneous," contemporaneous with the "preparation to depart and ultimate departure," or had occurred when defendant Lane and the other officers had "not fully departed" provide no illumination. They only beg the question.
Because the judge provided only confusing conclusions and ultimately rested on his unilateral determination that we were wrong about the departure's significance and that, in his view, defendant Lane's "actual departure did not operate to magically 'pull down the shade' of permissible viewing of the backyard," we must again remand.
We also previously remanded for further findings regarding the claimed protective sweep, specifically directing that the judge find whether Detective Braconi had a reasonable suspicion that the area to be swept harbored "'an individual posing a danger to those on the arrest scene.'" Id. at 156 (quoting Maryland v. Buie, 494 U.S. 325, 334, 110 S. Ct. 1093, 1098, 108 L. Ed. 2d 276, 286 (1990)). We suggested that the judge consider "whether it was likely that another suspect might have been in" defendant Lane's yard or shed. Lane, supra, 393 N.J. Super. at 156. The trial judge's response does not establish reasonable articulable suspicion; he declared that the "headband was a very real connection to the armed robbery which, standing alone, virtually mandates the conclusion that there existed a high likelihood that another suspect or suspects were in the immediate area." Having drawn that conclusion, the trial judge then criticized this court for "giv[ing] materially insufficient weight to the fact that there were" three or four armed robbers at large. Yet, the trial judge ignored the fact that Detective Braconi neither saw nor heard movement in the backyard. And he ignored also the fact that the other officers had departed --or, in the judge's words, "semi-simultaneous[ly]" departed --without any ostensible concern for a pending danger at the premises; in other words, if there was reason to believe that armed criminals were in the backyard, then why would the other officers have departed and left their colleague to deal with it?
We also remanded so the judge could reconsider Detective Braconi's credibility, particularly the question of "why he found [the detective's] claim that the headband was 'still warm' to be credible and logical," "whether it was reasonable for [the detective] to assume that the shed . . . -- the door of which . . . was wide open -- harbored someone who may have posed a danger to him," and whether the detective "had embarked on a mission untethered to constitutional principles or whether he was pursuing a legitimate purpose." Id. at 157. The trial judge again asserted that Detective Braconi's testimony "was found credible in the initial hearing and that conclusion was buttressed in the hearing on remand." However, when focused on the detective's particular claim that the headband was still warm as if it had been recently worn, the judge's opinion suggests some doubt, finding that comment "problematic" and our inquiry regarding its credibility "appropriately express[ed]." The judge then damned with faint praise Detective Braconi's claim that the headband was "still warm," declaring this testimony to be "comparatively harmless and sufficiently distant from other dubious, incredible or otherwise improbable testimony received on other occasions by this court," and it "little tarnishes the detective's testimony." This statement may either be an uneasy endorsement of Detective Braconi's credibility on this point or a conclusion that the claim was not believable but also not so absurdly false as to be rejected. We need not attempt to decipher the judge's finding on this point. We were entitled to -- but did not receive -- a finding as to whether the claim that the headband was "still warm" was or was not credible. And if not credible, whether it called into question the credibility of other claims made by the detective.
The judge failed to make other findings required by our mandate with which we need not further burden this opinion.
Although trial judges "are privileged to disagree with" appellate courts, "the privilege does not extend to non-compliance." Reinauer Realty Corp. v. Paramus, 34 N.J. 406, 415 (1961); see also Tomaino v. Burman, 364 N.J. Super. 224, 233 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004); Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 40 (App. Div. 2003). On remand, the trial judge has "a peremptory duty to obey . . . the mandate of the appellate court precisely as it is written." Flanigan v. McFeely, 20 N.J. 414, 420 (1956); see also Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 306 (App. Div. 2010); Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rosen, P.C. v. Lowenstein Sandler, P.C., 365 N.J. Super. 241, 247 (App. Div. 2003). The "appellate court's instructions to the trial court on remand are binding on that court, . . . and the trial court has no choice but to follow those instructions irrespective of its private view as to their soundness." Tomaino, supra, 364 N.J. Super. at 234 (internal quotation marks omitted). This "bedrock doctrine is vital to the proper administration and enforcement of the laws, promotes certainty and stability, and contributes to the actual and perceived integrity of the judicial system." Ibid.
We recognize that the judge's decision does contain some of the additional findings we required, but the development of the facts required by our earlier mandate has not been adequately advanced. The judge chose instead to provide his own view about the legal grounds upon which our prior opinion rested. Contrary to the trial judge's accusations, our prior decision does not disregard the importance of a trial judge's "feel of the case." We have, in fact, drawn no conclusions at all. In disposing of the prior appeal, we remanded because we were not provided with findings on matters we deemed relevant and pivotal. We remand again because the judge chose to take issue with our decision rather than comply with our mandate.
And to be clear, our disposition of this appeal does not arise from some undue sensitivity to the trial judge's criticism. We embrace the notion that "[j]udges are supposed to be men [and women] of fortitude, able to thrive in a hardy climate." In re Mathesius, 188 N.J. 496, 510 n.6 (2006) (quoting Craig v. Harney, 331 U.S. 367, 376, 67 S. Ct. 1249, 1255, 91 L. Ed. 1546, 1552 (1947)). Today's judgment is instead based on the unmistakable realization that the trial judge's decision is founded not so much on the facts as on a desire to demonstrate the soundness of his first opinion and to criticize what he viewed as the unrealistic nature of the questions posed by our mandate. His numerous sarcastic and pejorative comments about our opinion and, also, the state of the law in general, render unreliable both the judge's findings and his application of the constitutional principles to which he was bound. State v. Harris, 181 N.J. 391, 411, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
Accordingly, we remand for an examination of the reasonableness of the search and seizure -- in conformity with our prior opinion, without resort to the trial judge's prior findings, and by a different judge*fn4 -- not only so that the issues may be fairly and impartially resolved but also so that justice may appear to have been done.
Vacated and remanded. We do not retain jurisdiction.