On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-10-00429.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 30, 2011
Before Judges Payne and Messano.
Following an evidentiary hearing resulting in the denial of his motion to suppress evidence seized without a warrant, defendant Ra-King J. Allen, Sr., pled guilty to second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a) and 2C:35-5(b)(2). The judge granted the State's motion for an extended term, N.J.S.A. 2C:43-6(f), and defendant was sentenced in accordance with the plea bargain to 14 years in prison with a parole ineligibility period of 57 months. Defendant now raises the following point on appeal:
THE MOTION COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE WHEN THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT A WARRANTLESS SEIZURE PURSUANT TO THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT We have considered this argument in light of the record and applicable legal standards. We affirm.
Before any testimony was adduced at the evidentiary hearing, defense counsel and the prosecutor agreed to the following:
[W]e can stipulate that the motor vehicle stop was based on probable cause. The driver and the passenger were both placed under arrest for a valid outstanding warrant; that [defendant] . . . was searched incident to that arrest and a small amount of marijuana was found.
Trooper Richard M. Nugnes of the New Jersey State Police testified that on April 21, 2008, at approximately 5:30 p.m., he was preparing to begin his patrol duties when he responded to a call from a fellow trooper, M. DiLillo, who needed "back up."*fn1 When Nugnes arrived, DiLillo already had two individuals, defendant and his co-defendant Andrew Allen, "out of the[ir] vehicle" and "in custody." DiLillo left with the prisoners in his patrol car, and Nugnes remained behind "[t]o wait for the tow truck to arrive for the impounded vehicle."
When the tow truck arrived, the vehicle, a Chevy Malibu, was locked. However, Nugnes soon realized that the tow truck operator had accidentally opened the trunk while using the keys to access the car. Nugnes had not asked that the trunk be opened. As he approached the vehicle to close the trunk, Nugnes "observed a black bag in the . . . trunk somewhere around the area of the center." Nugnes saw that "[t]he bag was folded over. . . . [A]nd there was a bar of Mannitol." Nugnes explained that Mannitol is "used for cutting cocaine and/or heroin." He also saw what he believed to be "a bundle of heroin" in the trunk.
Nugnes picked up the bundle of heroin, confirmed his suspicion, and then searched the bag. Inside, he found "measuring spoons" and a "cardboard box" that held "a clear plastic baggie containing several ounces of what [he] believed to be heroin and also several more bundles of heroin and . . . a couple hundred empty druggist folds[,]" a method used to package CDS. Nugnes confirmed that: 1) he made these discoveries as he was "about to release th[e] car into the custody of the tow truck driver"; 2) "seconds, [perhaps a] minute" elapsed between the time the trunk opened and when he made the observations; 3) he did not "manipulate the bag in any way to see the Mannitol or the bundle of heroin"; and 4) he did not "expect to find heroin and Mannitol in the trunk."
On cross-examination, Nugnes testified that "the Mannitol, the measuring spoons, and a bundle of heroin" were not in the "closed box in the plastic bag." The Mannitol was "sitting . . . sort of half in and half outside the bag[.]" Nugnes confirmed that the bundle of heroin was "in the corner of th[e] bag" and he was able to see the drugs and the Mannitol "very clearly" while standing beside the open the trunk.
The tow truck operator, Joseph J. Senese, testified that when he arrived at the scene, a State trooper was standing between the car and his police vehicle. The trooper told Senese it was "an impound" and "handed [him] the keys." Senese "started hitting button[s]" and "the trunk [accidentally] popped open" "[a]ll the way." Senese saw the trooper "turn around and look" at the trunk. Senese was going to close the trunk, but the trooper told him "wait a second."
Senese then saw the trooper "pull out this black thing wrapped up in [a] plastic bag" from the trunk. He told Senese it was "narcotics," radioed someone and searched the rest of the trunk ...