August 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASHAD ABDURRAAFI, A/K/A THEODORE CARTER, TEDDY CARTER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-07-01271.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 10, 2011
Before Judges J. N. Harris and Fasciale.
After his motion to suppress physical evidence was denied, defendant Rashad Abdurraafi entered a guilty plea to a violation of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). The sentencing judge imposed a term of seven years incarceration, with five years of parole ineligibility. Abdurraafi now appeals, arguing the following:
POINT I: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE HANDGUN SEIZED FROM THE CEILING PANEL OF DEFENDANT'S MOTOR VEHICLE AS IT WAS THE RESULT OF AN UNLAWFUL SEARCH UNJUSTIFIABLE WITHIN ANY RECOGNIZED EXCEPTION TO THE WARRANT REQUIREMENT. Abdurraafi's pro se supplemental brief presents the following additional points:
POINT I: DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED AS A RESULT OF THE JUDICIAL REQUIREMENT NOT BEING MET IN THE ISSUANCE OF THE INSTANT ARREST WARRANT. THEREBY, FAILING TO ESTABLISH PROBABLE CAUSE AS MANDATED & REQUIRED BY NEW JERSEY RULES OF COURT, R. 3:3-3 (A) (1) & NEW JERSEY'S CONSTITUTION ARTICLE I & VII. UNITED STATES CONST. AMEND IV AND XIV.
POINT II: THE STATE HAS VIOLATED THE SEPERATION [SIC] OF POWERS DOCTRINE BY ALLOWING THE ARRESTING OFFICER'S ISSUANCE OF THE INSTANT ARREST WARRANT. THIS VIOLATION IS CLEAR IN LIGHT OF THE FACT THAT THE NEW JERSEY CONSTITUTION DOES NOT HAVE ANY PROVISIONS THAT GRANTS THAT AUTHORITY TO AN EXECUTIVE OFFICER. NEW JERSEY CONSTITUTION ARTICLE I & III.
POINT III: THE REMEDY FOR A DEFECTIVE ARREST IS SUPPRESSION OF THE EVIDENCE THAT WAS SEIZED AS PART OF THE ARREST, THOUGH IT DOES NOT INVALIDATE THE PROSECUTION'S ABILITY TO CONTINUE PROSECUTION.
POINT IV: DEFENDANT'S ASSIGNED COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO (1) INVESTIGATE THE FACTS SURROUNDING THE ISSUANCE OF THE ARREST WARRANT & TO MOVE FOR A SUPPRESSION OF EVIDENCE AND DISMISSAL OF THE CASE ON THE GROUNDS OF AN ILLEGALLY ISSUED ARREST WARRANT. UNITED STATES CONST. AMEND. VI & XIV; NEW JERSEY CONST. ART. I, PARA. 10.
On March 11, 2009, the dispatch unit of the Jersey City Police Department placed a call over the police radio to all units to be on the lookout for a white Astrovan in which the driver was carrying a gun. Uniformed police officers Tarance Bryant and Maria DeCristofaro were on midnight duty at the time, assigned to patrol the East District, when they spotted the Astrovan in the area of Florence and Montgomery streets. After observing the Astrovan driving "somewhat erratically" and crossing over the double yellow lines, the police officers initiated a stop of the motor vehicle.
While Officer Bryant was collecting the driving credentials of Abdurraafi, Officer DeCristofaro approached the passenger side of the Astrovan and illuminated the inside with her flashlight. She immediately observed a damaged ceiling panel inside, and what appeared to be "a gun handle sticking out of the panel." Officer DeCristofaro made a hand gesture to Officer Bryant alerting him to her find, whereupon Officer Bryant asked Abdurraafi to step out of the Astrovan. Upon his exit from the vehicle Abdurraafi was placed in the back of the patrol car "for [the police officers'] safety and [Abdurraafi's safety].
Officer Bryant then spoke directly with Officer DeCristofaro and was told what she had seen. Officer Bryant then observed the gun. It was retrieved from the Astrovan and secured for transportation to police headquarters. Abdurraafi was then placed under arrest.
After being indicted, Abdurraafi moved to suppress the seizure of the gun. After an evidentiary hearing, the Law Division denied the motion. Abdurraafi entered his guilty plea shortly thereafter.
In reviewing a motion to suppress, we are counseled to "'uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record") (citing State v. Johnson, 42 N.J. 146, 164 (1964)). We will reverse only if convinced that the motion judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). "In those circumstances solely [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 161). However, an appellate court "owes no deference to the trial court in deciding matters of law." Mann, supra, 203 N.J. at 337 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)). After applying these well-developed standards, we conclude that there is no reversible error present in this case.
At the conclusion of the suppression hearing, the motion court made credibility findings based upon its observation of the police officers and Abdurraafi, who testified at the N.J.R.E. 104 proceeding. Abdurraafi argued that the police conspired to arrest him, based upon the circumstance that prior to his encounter with Officers Bryant and DeCristofaro, Abdurraafi had already been apprehended by other Jersey City police officers who failed to detect the gun. The court stated, "as to this implication that the arresting officers had knowledge that [other officers] stopped the defendant and didn't find a gun, quite frankly, is not credible."
The motion court found that not only was there probable cause for the police to stop and investigate the erratic driving of the Astrovan, but the observation of "the butt of the gun protruding from the interior of the van" was supported by the officer's plain view of the interior of the vehicle. We agree.
It is well-established that the Constitutions of the United States and New Jersey protect citizens from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "[T]he investigative stop of an automobile by police constitutes a seizure that implicates these constitutional protections." State v. Amelio, 197 N.J. 207, 211 (2008) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979)), cert. denied, ___ U.S. ___, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).
Thus, law enforcement officers "may stop motor vehicles where they have a reasonable or articulable suspicion that a motor vehicle violation has occurred." State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990); see also State v. Carty, 170 N.J. 632, 639-40 (2002) ("A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed."); Locurto, supra, 157 N.J. at 470. "Reasonable suspicion" means that "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). "Reasonable suspicion" is "less than proof . . . by a preponderance of evidence," and "less demanding than that for probable cause," but must be something greater "than an 'inchoate or unparticularized suspicion or' 'hunch.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).
"The fact that the officer does not have the state of mind hypothesized by the reasons which provide the legal justification for the search and seizure [or investigatory stop] does not invalidate the action taken, so long as the circumstances, viewed objectively, support the police conduct." State v. Kennedy, 247 N.J. Super. 21, 28 (App. Div. 1991) (citing State v. Bruzzese, 94 N.J. 210, 220 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).
Ultimately, "courts will not inquire into the motivation of a police officer whose stop of an automobile is based upon a traffic violation committed in his presence." Ibid. "The fact that the justification for the stop was pretextual . . . [is] irrelevant," id. at 29, and the State need not prove that the suspected motor vehicle violation has in fact occurred. Locurto, supra, 157 N.J. at 470 (citing State v. Williamson, 138 N.J. 302, 304 (1994)). Investigatory stops are valid in situations where the objective basis for the stop was a minor traffic infraction. Id. at 466 (the stop was justified based upon the officer's observations that the defendant was driving "at 'a high rate of speed'" in a zone where "[t]he posted speed limit was thirty-five miles per hour"); see also State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (the stop was justified based upon the officer's observations of the defendant weaving in and out of lanes); Murphy, supra, 238 N.J. Super. at 548-49 (the stop was justified where the vehicle's license plate was in a diagonal position, which the officer believed violated N.J.S.A. 39:3-33); State v. Carter, 235 N.J. Super. 232, 236-37 (App. Div. 1989) (the stop was justified based upon the officer's observations that defendant was tailgating another vehicle). Here, in denying the motion to suppress, the motion court found the police testimony credible, and properly determined there was a reasonable suspicion that the driver of the Astrovan committed a motor vehicle violation justifying the stop.
A warrantless search is presumptively invalid unless the State establishes that the search was justified by a recognized exception to the warrant requirement. State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). 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); Bruzzese, supra, 94 N.J. at 235-36.
There are three requirements for application of the plain view exception. First, the law enforcement officer must be lawfully in the viewing area. 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. Third, it must be "'immediately apparent'" to the officer that the items seen are "evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 207 (2002); see also Bruzzese, supra, 94 N.J. at 236.
When an officer makes an observation without physically intruding into a constitutionally protected area, such as when she looks into a vehicle in a public space, no search is involved and no fourth amendment rights are implicated. State v. Pineiro, 369 N.J. Super. 65, 72-73 (App. Div.), certif. denied, 181 N.J. 285 (2004). Specifically, a police officer may shine a flashlight into the vehicle for the purpose of making observations, and still no search has been conducted. Texas v. Brown, 460 U.S. 730, 739-40, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502, 512 (1983) (shining a flashlight into a vehicle from a public vantage point did not constitute a search); State v. Moller, 196 N.J. Super. 511, 515 (App. Div. 1984) (shining a flashlight into a vehicle to observe drugs and drug paraphernalia did not constitute a search).
Here, Officer DeCristofaro was lawfully in the viewing area, standing outside the vehicle, when she looked inside. She did not know that she would find a gun. Further, it was immediately apparent that the gun was contraband. See State v. Demeter, 124 N.J. 374, 381-82 (1991) (noting a handgun does not constitute an intrinsically innocent object). We conclude that the motion court's validation of the observation and seizure of the gun was indubitably correct.
Abdurraafi raises in his supplemental pro se brief a claim that "assigned counsel rendered ineffective assistance of counsel" by failing to properly investigate the facts of the case and failing to move to dismiss the indictment on the grounds of illegal activity by the police. We find that these claims are premature and not appropriate in this direct appeal.
To establish ineffective assistance of counsel, a defendant bears the onerous burden of proving two essential elements: (1) that trial counsel "performed below a level of reasonable competence"; and (2) "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Fritz, 105 N.J. 42, 60-61 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 694 (1984)). Our Supreme Court has expressed a preference for resolving ineffective assistance of counsel claims on collateral review. State v. Preciose, 129 N.J. 451, 459-60 (1992). However, where the allegedly deficient conduct is a matter wholly within the trial record, an appellate court may review the claim on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006). Because Abdurraafi's claims rest entirely upon evidence outside the record, they are not ripe for direct review.