August 2, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RUDOLPH L. MONTFORD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-04-0638.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 26, 2011
Before Judges Graves and Yannotti.
Defendant pled guilty to unlawful possession of an assault firearm, contrary to N.J.S.A. 2C:39-5(f), and was sentenced to five years of probation. Defendant appeals from the judgment of conviction dated February 4, 2010. We affirm.
Defendant was charged with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts two and three); fourth-degree unlawful possession of a weapon (steak knife), N.J.S.A. 2C:39-5(d) (count four); second-degree possession of a weapon (steak knife) while engaged in distribution of CDS, N.J.S.A. 2C:35-4.1 (counts five and seven); and third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f) (count six).
Defendant filed a motion to suppress the evidence obtained in the search of his automobile. At the suppression hearing, Officer Constance Crea (Crea) of the Piscataway Police Department testified that on the evening of November 17, 2007, she and Patrolman Thomas Abode (Abode) were on patrol duty in Piscataway, looking for persons who might be driving while intoxicated (DWI). They were in patrol uniforms and were riding in a marked patrol vehicle.
At around 12:43 a.m., Crea and Abode were traveling southbound on a four-lane road with two lanes going north and two lanes going south. Crea and Abode were in the right lane. In his rearview mirror, Abode observed a vehicle, which was also traveling southbound in the left lane, with one headlight out. As the vehicle approached, Crea saw that the driver was not wearing a seat belt. Crea and Abode turned on the overhead lights of the patrol car. They stopped the vehicle. One person was in the car. Crea identified defendant as the driver. Crea approached the car. The window on the passenger side was rolled down.
Crea testified that she "immediately smelled the odor of burnt marijuana coming from the interior of the vehicle." When Crea asked defendant for his driver's license, vehicle registration and insurance card, she observed a plastic cup in the center console which contained a liquid beverage. Crea asked defendant whether he had consumed any alcoholic beverages. He said he had one drink. Crea asked defendant what was in the container in the center console, and defendant replied that it was the remainder of a cocktail he was going to finish when he got home.
Crea said that defendant's eyes were watery and red. She also detected the odor of alcohol emanating from his breath. Based on her training and experience, Crea believed that defendant was under the influence of alcohol and/or narcotics. Crea asked defendant to exit the vehicle so that she could administer standardized field sobriety tests. Crea asked defendant whether he had consumed marijuana and he replied that he had not. Defendant told her that he had been smoking a "black and mild" cigar, which Crea interpreted as an admission that he had been smoking marijuana. Crea said that, based on her training experience, "black and mild" cigars are used as drug paraphernalia. They are hollowed out, filled with marijuana and then smoked.
Crea asked defendant if he was in possession of any marijuana. He said that he was and it was in his pocket. Crea went into his pocket and retrieved three, small, clear ziplock bags containing green vegetation, which was later determined to be marijuana. Crea then asked defendant if he would consent to a search of the trunk of the vehicle. Defendant refused to consent.
Crea administered three field sobriety tests. Defendant failed all three. Crea arrested defendant for driving while intoxicated and for unlawful possession of marijuana. Defendant was placed in the rear of the patrol vehicle. Crea then returned to defendant's car to retrieve the open container of alcohol.
While retrieving the container, Crea observed six clear individually-wrapped bags containing a white substance, which was later determined to be cocaine. The officers thereafter obtained a search warrant for the vehicle. The search yielded an assault rifle, which was found in the trunk. At police headquarters, defendant recorded a blood alcohol level of .09 on the Alcotest.
The trial court found that the initial traffic stop was justified by the motor vehicle violations, specifically driving with an inoperable headlight and without a fastened seat belt. The court additionally found that Crea had probable cause to arrest defendant because she had reasonable grounds to believe that he had been driving while under the influence of alcohol and/or drugs.
The court further found that the officers seized the marijuana from defendant's pocket following a valid search incident to his arrest, and the cocaine was lawfully seized under the plain view exception to the warrant requirement. In addition, the court determined that the assault rifle was admissible because it had been obtained in a search that had been authorized by the warrant.
On November 17, 2009, defendant pled guilty to count six of the indictment, which was amended to charge third-degree unlawful possession of an assault firearm, contrary to N.J.S.A. 2C:39-5(c). Under the plea agreement, the State agreed to recommend a three-year term of imprisonment, although defendant could argue for probation at sentencing.
Thereafter, the trial court sentenced defendant to five years of probation. He was ordered to submit to random urine monitoring during probation; undergo an evaluation and complete any program of treatment counseling required by the Probation Department; submit to DNA testing; and maintain employment during probation. The court also imposed appropriate fines and penalties. This appeal followed.
Defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE EVIDENCE FOUND IN THE TRUNK OF [DEFENDANT'S] VEHICLE POINT II
THE DEFENDANT'S PLEA WAS DEFECTIVE BECAUSE THE COURT FAILED TO ELICIT A SUFFICIENT FACTUAL BASIS (NOT RAISED BELOW)
Defendant argues that the court erred by denying his motion to suppress the evidence obtained in the search of the trunk of his car. Defendant contends that the officers were not justified in making a warrantless search of his car after he had been secured in the police vehicle. Defendant therefore argues that the plain view exception to the warrant requirement does not apply and the seizure of the cocaine was unlawful. He further argues that, because the seized cocaine was used as a basis for the search warrant, the court should have suppressed the rifle found in the trunk.
The Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution protect our citizens from unreasonable searches and seizures. State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). These constitutional provisions generally require that government officials obtain a warrant issued by a neutral and detached magistrate before conducting a search. Ibid. A warrantless search is presumptively invalid unless the State establishes that the search was justified by a recognized exception to the warrant requirement. Id. at 598. The plain view doctrine is one such exception. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); State v. Bruzzese, 94 N.J. 210, 235-36 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
There are three requirements for application of the plain view exception. Bruzzese, supra, 94 N.J. at 236. First, the law enforcement officer must be lawfully in the viewing area. Ibid. (citing Coolidge, supra, 403 U.S. at 465-68, 91 S. Ct. at 2037-39, 29 L. Ed. 2d at 582-84). Second, the officer must discover the evidence inadvertently, which means that the officer "did not know in advance where the evidence was located or intend beforehand to seize it." Ibid. (citing Coolidge, supra, 403 U.S. at 470, 91 S. Ct. at 2040, 29 L. Ed. 2d at 585). Third, it must be "'immediately apparent'" to the officer that the items seen are "evidence of a crime, contraband, or otherwise subject to seizure." Ibid. (quoting Coolidge, supra, 403 U.S. at 466, 91 S. Ct. at 2038, 29 L. Ed. 2d at 583).
Here, Crea and Abode made a valid traffic stop of defendant's car because they had reasonable, articulable suspicion that he had committed several motor vehicle offenses, specifically, operating a vehicle with a broken headlight and without a seat belt. See State v. Golotta, 178 N.J. 205, 212-13 (2003). Having made a valid traffic stop, the officers properly approached the vehicle to question defendant who was seated inside. Thus, Crea was lawfully in the viewing area at the passenger side window when she observed the open container, which defendant conceded contained an alcoholic beverage.
Crea could have immediately seized the container. However, Crea did not do so until after defendant admitted he had been drinking earlier and she smelled alcohol on his breath, as well as the odor of burnt marijuana emanating from the car. Crea properly returned to the car to retrieve the container after defendant was taken into custody and the officers found marijuana in defendant's pocket.
At that point, Crea was lawfully in the vehicle and observed the cocaine in the center console. The record shows that Crea did not know in advance there was additional contraband in the car. Moreover, Crea knew at once, based on her training and experience, that the substance she found was evidence of a crime. Thus, the plain view exception applied to the seizure of the cocaine.
Defendant argues, however, that the warrantless seizure of the cocaine was unlawful because Crea's return to the vehicle to retrieve the open container of alcohol was not warranted by any exigency. However, as we have explained, the seizure of the open container was permitted by the plain view exception to the warrant requirement. Since that exception applied, the State was not required to establish that the search of defendant's car was warranted by the automobile exception, which requires a showing of "exigent circumstances" to conduct a warrantless search of a vehicle. State v. Pena-Flores, 198 N.J. 6, 28 (2009).
Moreover, there was no basis to suppress the rifle found in the search of the truck. As we noted previously, the officers did not search defendant's trunk until they had secured a search warrant. A search conducted pursuant to a warrant is presumed valid. State v. Jones, 179 N.J. 377, 388 (2004). To overcome this presumption, a defendant must show that probable cause did not exist for the issuance of the warrant or that the search was otherwise unreasonable. Ibid. Here, the record shows that the State established probable cause for the issuance of the search warrant.
Therefore, the trial court correctly found that the rifle found in the execution of the search warrant was admissible at trial.
Next, defendant argues for the first time on appeal that his plea was not valid because he did not provide an adequate factual basis for his plea. He contends that the trial court erred by permitting him to establish the factual basis for his plea by the use of leading questions. Again, we disagree.
Rule 3:9-2 requires that, when a court takes a plea, it "must satisfy itself through inquiry of the defendant and others, in its discretion, that an adequate factual basis exists for the plea." State ex rel. T.M., 166 N.J. 319, 326 (2001). The requirement for a factual basis for a plea "serves a variety of purposes." Ibid. Among other things, it "protects a defendant who voluntarily and knowingly pleads, but without recognition that his or her conduct does not fall within the charge." Ibid.
In taking a plea, the trial court is not required to "follow a prescribed or artificial ritual." Id. at 327.
To the contrary, because different criminal charges and different defendants require courts to act flexibly to achieve constitutional ends, a factual basis, established either through inquiry of others, which a defendant acknowledges, or through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy. [Ibid. (citing State v. Smullen, 118 N.J. 408, 422 (1990).]
At the plea hearing, the following colloquy ensued between the court and defendant:
THE COURT: Are you pleading guilty because you are guilty of having a rifle in your possession without a permit or an I.D. card so to speak?
THE DEFENDANT: Yes.
THE COURT: I want to direct your attention back to that day on the 17th . . . of November, 2007. Were you in Piscataway at that time?
THE DEFENDANT: Yes.
THE COURT: And were you operating a vehicle? THE DEFENDANT: Yes.
THE COURT: And at some point did the police stop you and search that vehicle?
THE DEFENDANT: Yes.
THE COURT: And did they find a rifle in the trunk of the vehicle?
THE DEFENDANT: Yes.
THE COURT: Did you have an I.D. card that allowed you to lawfully purchase that rifle?
THE DEFENDANT: No.
THE COURT: Do you agree that this rifle was in your possession or under your control at the time?
THE DEFENDANT: Yes.
We are satisfied that the trial court correctly found that defendant provided an adequate factual basis for his plea. The colloquy indicates that defendant fully understood the charge and in his responses to the court's questions, defendant clearly and unequivocally admitted committing the offense.
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