August 30, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
COREY ALLEN SENIOR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-09-0355.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2011 Before Judges J. N. Harris and Fasciale.
Defendant Corey Allen Senior appeals (1) from his conviction for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), following an unsuccessful motion to suppress evidence and a guilty plea, and (2) the sanction imposed by the sentencing judge of a term of incarceration of five years. On appeal, Senior presents these arguments for our consideration:
POINT ONE: THE JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE FOUND IN THE WARRANTLESS SEARCHES OF DEFENDANT AND THE SUV IN WHICH HE HAD BEEN A PASSENGER.
POINT TWO: UNDER THE CIRCUMSTANCES OF THIS CASE, THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
These are the facts derived from the motion record in which two witnesses testified: New Jersey State Police Officer James Agens and Senior. During the last week of March 2008, Agens -- then assigned to work in an undercover mode with the Warren County Prosecutor's Office -- received information from a female confidential informant that led to an investigation of Senior. The confidential informant, who was an acquaintance of Senior, was enlisted to participate in a controlled drug purchase.
The operation involved the surveillance of the confidential informant's automobile on April 2, 2008. Agens testified that he observed Senior and another individual enter the confidential informant's car upon which he surreptitiously followed the vehicle as the occupants drove to two separate locations in the vicinity of Mansfield. Agens saw Senior and the other man leave the automobile twice with a white paper bag and enter business locations, after which they returned to the automobile empty-handed. Agens opined that Senior's conduct was consistent with "selling an unknown product probably to gain currency to purchase  heroin."
After leaving the other man behind, the confidential informant and Senior drove east from Warren County to Newark, with Agens and other law enforcement officers in close pursuit. Upon reaching the corner of Hillside Avenue and Clinton Avenue, Agens watched from approximately seventy-five yards away as
[the confidential informant's] vehicle pulled to the left side of the roadway which is the opposite lane of travel. They pulled to the left side of the roadway. At that point they were at the corner of the street. Several Black males approached the driver's side of the vehicle.
We observed one of the Black males reach across the passenger or across the driver and over to the passenger who was Mr.
Senior. There was a hand-to-hand exchange observed. The Black males left that area, the vehicle immediately re-entered the roadway and left the area.
The confidential informant then drove the motor vehicle to South Munn Street in East Orange, where Agens, again from approximately seventy-five yards away, witnessed the following:
There we -- we observed the vehicle pull over to the curb area. At that area a Black male exited we believe a residence, I cannot be sure of that. He exited out from the area of a residence. He walked towards the vehicle at -- the passenger window. Again there was a hand-to-hand transaction and then the vehicle immediately left the area.
Agens believed that "[f]rom the high narcotics trafficking area and the hand-to-hand and the short duration that he was there, we observed this to be a narcotics transaction."
The confidential informant then left East Orange and drove west. Believing that he had "enough probable cause due to our training and experience, the high drug trafficking area, the two short stops which involved a hand-to-hand transaction," Agens stopped the confidential informant's motor vehicle on the ground that it contained illicit narcotics. According to Agens, he immediately arrested both occupants and "personally read Mr. Senior his Miranda[*fn1 ] warnings and -- and [Agens] quickly briefed [Senior] on what was happening."
Agens claims that immediately thereafter, Senior reached into his pocket and handed Agens twenty-nine druggist folds containing heroin. Agens also seized another "20 decks" of heroin that he observed "in plain view on top of the center console" of the confidential informant's motor vehicle. Finally, two syringes were recovered: one was handed over by Senior, the other "was found in an overhead flip-down console, which is  typically used to hold sunglasses."
Senior corroborated some of the events recounted by Agens, but disputed several material aspects of Agens's testimony. For instance, Senior testified that he was not Mirandized when the motor vehicle was stopped, and although he knew there was heroin in the motor vehicle, he did not have any contraband in his pocket, except for a syringe, which he willingly handed over to Agens.
In ruling on Senior's motion to suppress the evidence recovered from the confidential informant's motor vehicle, the motion judge stated, "I believe what the trooper said is correct, that Mr. Senior displayed to him in his shirt pocket [twenty-four] [sic] bags of heroin which had been the fruits of their trip to Newark and West [sic] Orange." The judge found that "additional envelopes of heroin" were "in plain view on top of the console," and "[t]here were exigent circumstances -- the car could not be left where it was. The [confidential informant] was being protected. It's not the usual place where the police have the leisure to call and get a search warrant, especially when they see in plain view obviously contraband information." Finally, the judge held, "[t]he [c]court finds beyond a reasonable doubt that the police had probable cause to search Mr. Senior for the reasons I previously entered and that the circumstances were either plain view or exigency and the motion to suppress the evidence is denied."
Several months later, Senior entered a plea of guilty pursuant to a plea arrangement that called for waiver of a discretionary extended term and a maximum prosecutor's recommendation of "[five] years flat New Jersey State Prison." At sentencing, the court identified three aggravating factors: the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. Thereafter, a five-year sentence was imposed. This appeal followed.
Senior's first argument relates to the warrantless search and seizure of the contraband on April 2, 2008. In reviewing a motion to suppress, we "'must 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. Mosner, 407 N.J. Super. 40, 59 (App. Div. 2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)) (internal quotations omitted). A reviewing court generally defers to a motion court's findings, "which are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010); see also State v. Alvarez, 238 N.J. Super. 560, 564 (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 162). After applying these well-developed standards, we conclude that there is no reversible error present in this case.
The motion judge's ultimate finding that there was probable cause to arrest Senior could reasonably have been reached on sufficient credible evidence present in the record as a whole. Johnson, supra, 42 N.J. at 161-62. Probable cause is an elusive concept that is not necessarily dependent upon one particular event viewed in isolation. See State v. Pineiro, 181 N.J. 13, 21 (2004). Rather, a probable cause determination may be reached through consideration of a number of factors cumulatively. State v. Moore, 181 N.J. 40, 46 (2004). Here, Senior was observed engaging in hand-to-hand transactions as part of what was set in motion to be a controlled buy of drugs. That the motion court credited Agens's testimony concerning these facts supports the conclusion that there was probable cause to arrest Senior.
Senior's delivery of the twenty-nine druggist folds of heroin and a syringe to Agens after being Mirandized violated no constitutional principles, and the other twenty druggist folds were seized pursuant to the plain view doctrine. 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, 235-38 (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 doctrine. 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, 206-07 (2002); see also Bruzzese, supra, 94 N.J. at 236. These conditions were met relating to the twenty druggist folds. Thus, since that exception applied, the State was not required to establish that the search of the motor vehicle 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).
Notwithstanding the foregoing, we conclude that the seizure of the inconsequential second syringe from behind the "overhead flip-down console" was not within the orbit of a valid search of the confidential informant's motor vehicle due to the absence of exigent circumstances. Id. at 29-30. It is clear that "the warrantless search of an automobile" is permitted "where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Id. at 28; see also State v. Cooke, 163 N.J. 657, 667-71 (2000). The State failed to demonstrate the existence of exigent circumstances to justify recovery of the second syringe. Indeed the only basis for the seizure of that syringe was based upon Agens's testimony, which claimed, "[a]s soon as . . . we found the [twenty] druggist folds in the car we always search a car after that to see if there's any further contraband in the vehicle."
Recognizing that exigency must be decided on a case-by-case basis, Pena-Flores, supra, 198 N.J. at 28 (citing State v. Dunlap, 185 N.J. 543, 551 (2006)), the Court in Pena-Flores set forth some of the "[l]egitimate considerations" that should be taken into consideration: the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk. [Id. at 29.]
Here, the State did not show that the circumstances were such that "'law enforcement officers [did] not have sufficient time to obtain any form of warrant.'" Id. at 30 (emphasis omitted) (quoting State v. Johnson, 193 N.J. 528, 556 n.7 (2008)). Thus, the second syringe should have been suppressed.
That having been said, we do not believe that the failure to suppress the second syringe materially affected Senior's ultimate decision to plead guilty and did not result in a manifest injustice. Senior was not charged with possession of either of the syringes, and he entered a guilty plea to a charge that did not require proof of the existence of that paraphernalia. Moreover, Senior's challenge to the searches and seizures was primarily directed to the seizure of the druggist folds containing heroin, and not to the syringes. We consider the erroneous decision on this single aspect of Senior's motion to be too insignificant to have had any bearing on the ultimate outcome of this case.
Defendant's final argument on appeal relates to his view that the sentence that he bargained for with the State, and which was imposed by the sentencing judge, was excessive. We disagree.
We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210 (1989)). However, we may review and modify a sentence in those instances where the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines are not violated, determine that findings on aggravating and mitigating factors are based on the evidence presented, and lastly decide whether application of the guidelines make a particular sentence so clearly unreasonable that it shocks the judicial conscience. State v. Bieniek, 200 N.J. 601, 608 (2010); Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 215-16.
In imposing the sentence, the judge found aggravating factors N.J.S.A. 2C:44-1(a)(3) (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1(a)(6) (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been previously convicted) and N.J.S.A. 2C:44-1(a)(9) (the need for deterring the defendant and others from violating the law), and no applicable mitigating factors. We discern no abuse of discretion in defendant's sentence. The judge's findings of aggravating and mitigating factors are amply supported by the evidence, and the sentence imposed is just.