October 26, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DOMINIC V. MEYER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-12-1944.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2011 -
Before Judges Ashrafi and Fasciale.
After pleading guilty to an open indictment, defendant appeals from his convictions for two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); four counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and one count of fourth-degree possession of prohibited weapons and devices, N.J.S.A. 2C:39-3(f). He contends that the judge failed to suppress the weapons and imposed an excessive sentence. We disagree and affirm.
At approximately 11:15 p.m. the police received a call that a motorcycle and a tall pickup truck were drag racing in a residential area. Sergeant Mark Zambrzycki, who had been patrolling, observed a pickup truck driving towards his patrol car. Zambrzycki suspected that the truck might be involved in the incident, noticed that the truck did not have a front bumper, and determined that the Texas license plate was placed in the front windshield over some paper. He activated his overhead lights, pulled over the pickup, approached the cab, which had three occupants, and asked the driver for his license, registration, and insurance. The driver (defendant) initially produced military identification, but nothing else. Eventually, he handed his driver's license to Zambrzycki. Defendant did not possess any registration or insurance information.
Zambrzycki ran the license plate number and learned that the registration had been expired for nine months. Zambrzycki advised defendant that he received a report that a pickup and motorcycle were drag racing. Defendant and his two passengers denied any involvement with a motorcycle.
Meanwhile, Officer Kevin Connors, also in the area, observed another patrol car following the motorcycle driver. Connors joined that officer, pursued the driver, and pulled over the motorcycle. The motorcycle driver admitted to Connors that he and the people in the pickup truck "were together." Connors then left the motorcycle driver with the other officer and provided backup to Zambrzycki who was not far away.
When Connors arrived at the truck, he briefed Zambrzycki that the motorcycle driver stated he was with the people in the truck. Zambrzycki explained to Connors that the people in the truck denied any connection to the motorcycle driver. This inconsistent information raised the suspicion of the officers.
Connors learned initially that the truck had been registered to a car dealership in Texas. Connors informed Zambrzycki that he wanted to obtain the Vehicle Identification Number (VIN number) of the truck to determine whether it had been stolen. Connors walked "over with my flashlight to the front of the windshield of the [truck] to light up the VIN number"; however, the number was blocked by a piece of paper and the license plate resting on the windshield. Connors was unable to reach into the truck safely to move the paper and plate. As a result, Connors asked defendant to exit the truck.
As defendant exited the pickup, Connors observed a black handle with a chrome end protruding from the dashboard. He grabbed the handle and steering wheel to pull himself up into the tall truck to see the VIN number. The handle moved and Connors discovered inadvertently that it was a bayonet. For his safety, Connors ordered the two passengers to exit the vehicle. Connors then walked around to the passenger side of the truck and noticed in plain view a semiautomatic magazine pouch on the passenger side floor and a handgun sticking out from under the passenger's seat.
The police then patted down defendant and discovered that he was wearing a .45-caliber semiautomatic gun holster. Connors located a second gun in plain view sticking out from the front seat. One of the guns was fully loaded. The police then arrested defendant and his passengers. In securing the truck, because of the obvious danger involving three suspects in a dark residential area, the police located knives, a throwing ax, a bat, an empty gun case, an ammunition box, gun clips and magazines, and "a homemade smoking pipe made of a shell casing."
The judge conducted a four-day hearing on defendant's motion to suppress. Three officers testified and defendant produced William McElarney, an expert familiar with the location of VIN numbers on pickup trucks. The judge determined that the vehicle stop was valid, and that Connors had properly investigated the VIN number and recovered the bayonet, semiautomatic magazine, and handguns pursuant to the plain view exception to the warrant requirement. The judge stated:
This was a residential area, late at night. A residential area, where people are in homes sleeping. The finding of guns, the finding of cartridges, clearly indicates there was, in fact, danger. And, in fact, the [truck] had to be secured.
As a result, the judge denied defendant's motion to suppress and concluded that exigent circumstances existed justifying the recovery of the remaining items pursuant to the automobile exception to the warrant requirement.
Defendant pled guilty to the open indictment on the first day of trial. He executed a plea form and acknowledged that his maximum exposure in prison was twenty-seven and one-half years. At the plea hearing, defendant admitted that he was in the military, but that during the month prior to the incident he was absent without leave.
The judge sentenced defendant on the second-degree convictions to two concurrent six-year prison terms with three years of parole ineligibility, and imposed concurrent terms of eighteen months in prison on the remaining convictions. Defendant's aggregate sentence is six years in prison with three years of parole ineligibility.
On appeal, defendant raises the following points:
DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE FOUND INSIDE THE VEHICLE SHOULD HAVE BEEN GRANTED.
A. Officer Connors Lacked The Reasonable Articulable Suspicion Necessary To Ask The Driver To Step Out Of The Car So That He Could Inspect The VIN Number.
B. The Contraband Found Subsequent To The Finding Of The Bayonet Should Be Suppressed Because Under Pena-Flores The Officers Needed To Obtain A Warrant Absent Exigent Circumstances.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
We begin by addressing defendant's contention that because the officers lacked a reasonable articulable suspicion necessary for defendant to exit the car, and exigent circumstances did not exist, the judge erred by denying his motion to suppress. We disagree.
In reviewing an order disposing of a motion to suppress evidence we must defer to the trial court's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). "'That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also State v. Robinson, 200 N.J. 1, 15 (2009); Elders, supra, 192 N.J. at 243-44. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966). Here the judge found that the testimony from the police officers was "candid, direct, and honest."
"A trial court's findings should be disturbed only if they 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). However, we need not defer to any legal conclusions reached from established facts. See State v. Brown, 118 N.J. 595, 604 (1990) (holding that "[i]f the trial court acts under a misconception of the applicable law," we need not defer to its ruling). The trial court's application of the law is subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
"Consistent with the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, police officers must obtain a warrant . . . before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)); see also Robinson, supra, 200 N.J. at 3 ("The warrant requirement embodied in both [the Federal and State Constitutions] limits the power of the sovereign to enter our homes and seize our persons or our effects."). A warrantless search is presumed invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). The burden is placed on the State to prove that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).
Here, the State argues that the police executed a valid motor vehicle stop and located weapons pursuant to the plain view and automobile exceptions to the warrant requirement. We consider first the argument that the vehicle stop was valid.
Police may stop a vehicle if there is an "articulable and reasonable suspicion" that the vehicle or its driver has violated the law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S. __, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). Reasonable suspicion requires "'some minimal level of objective justification for making the stop.'" Id. at 212 (quoting State v. Nishina, 175 N.J. 502, 511 (2003)) (internal quotation marks omitted). The officer "'must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" Ibid. (quoting State v. Arthur, 149 N.J. 1, 8 (1997)) (internal quotation marks omitted) (alteration in original). The State has the burden of demonstrating by a preponderance of the evidence that it possessed sufficient facts to establish reasonable suspicion. Id. at 211.
Here, we conclude that the police possessed a reasonable articulable suspicion to stop defendants' truck because its front license plate was not attached to the vehicle and because the police were responding to a report of drag racing involving a truck similar to defendant's. Connors suspected that the truck may have been stolen because he learned that it had been unregistered for nine months and the license check initially revealed that the vehicle had been registered to a dealership in Texas. Connor's suspicion was strengthened because defendant resisted producing his license, failed to produce any registration or an insurance card, and contradicted the motorcycle driver's admission that they were together. As the motion judge stated, "[a]ll of these things led to a very reasonable [suspicion], if not, obligation, on the part of [Connors] to further investigate . . . [to] check the actual VIN number to [e]nsure [the vehicle was not stolen]."
We also conclude that Connors properly asked defendant to exit the truck so he could read the VIN number, which had been covered by the paper and improperly displayed license plate. "[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6, 98 S. Ct. 330, 333 n.6, 54 L. Ed. 2d 331, 337 n.6 (1977); State v. Smith, 134 N.J. 599, 609-10 (1994). The report of drag racing, inconsistent explanations, lack of valid registration, and the obstruction of the VIN justified the initial police intrusion into the truck to look for the VIN number.
Next, we consider whether the "plain view" exception to the warrant requirement applies. There are three requirements for application of the plain view exception. First, the law enforcement officer must be lawfully in the viewing area. State v. Johnson, 171 N.J. 192, 207 (2002) (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971)). Second, the officer must discover the evidence "inadvertently," which means that the officer "did not know in advance where the evidence was located nor intend beforehand to seize it." Ibid. (citing State v. Bruzzese, 94 N.J. 210, 236 (1983)); 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." Johnson, supra, 171 N.J. at 207 (citing Coolidge, supra, 403 U.S. at 470, 91 S. Ct. at 2040, 29 L. Ed. 2d at 585) (internal quotation marks omitted); 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). There is no reasonable expectation of privacy to a VIN number. New York v. Class, 475 U.S. 106, 107, 106 S. Ct. 960, 962, 89 L. Ed. 2d 81, 86 (1986); State v. Ball, 219 N.J. Super. 501, 508 (App. Div. 1987).
Connors was lawfully in the viewing area, discovered the bayonet inadvertently, and then asked the two passengers to exit. The standard for determining whether, in the context of a traffic violation, a police officer may order a passenger to step out of a vehicle was set forth in Smith:
[T]he officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car. [Supra, 134 N.J. at 618.]
Connors was justified in asking the passengers to exit the truck. In plain view, Connors observed the semiautomatic magazine pouch, and a handgun. It was immediately apparent that the gun was subject to seizure. See State v. Demeter, 124 N.J. 374, 381-82 (1991) (suggesting a handgun does not constitute an intrinsically innocent object).
Next, we turn to the remaining weapons, which were recovered pursuant to the automobile exception to the warrant requirement. To justify a search under this exception, three factors must be satisfied: "(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." State v. Pena-Flores, 198 N.J. 6, 28 (2009) (citing Cooke, supra, 163 N.J. at 667-68). The automobile exception is premised on the inherent mobility of automobiles and the diminished expectation of privacy in one's automobile. Id. at 20; State v. Patino, 83 N.J. 1, 9 (1980). Thus, "a warrantless search of a motor vehicle pursuant to the automobile exception is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality." Pena-Flores, supra, 198 N.J. at 20 (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031, 1036 (1996)); cf. Cooke, supra, 163 N.J. at 667-68 (without an exigent circumstances requirement, "a car parked in the home driveway of vacationing owners would be a fair target of a warrantless search if the police had probable cause to believe the vehicle contained drugs").
Here, the stop of the truck was unexpected and the police had probable cause to believe that the vehicle contained contraband or evidence of a crime. Therefore, we concentrate on the third factor, whether exigent circumstances existed.
In New Jersey, exigent circumstances must "be determined on a case-by-case basis." State v. Dunlap, 185 N.J. 543, 551 (2006). No one factor is controlling; rather, courts must weigh the totality of the circumstances. Cooke, supra, 163 N.J. at 675. "In each case it is the circumstances facing the officers that tell the tale." Pena-Flores, supra, 198 N.J. at 29. Determinants of exigency are police safety and the preservation of evidence. Dunlap, supra, 185 N.J. at 551. "How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry." PenaFlores, supra, 198 N.J. at 28-29 (citing Dunlap, supra, 185 N.J. at 551).
To determine whether exigent circumstances exist, we may consider the following possible factors outlined by the PenaFlores court:
[T]he 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.]
The police conducted the search after dark, late at night, in a residential neighborhood, and they had recovered a bayonet, a semiautomatic magazine and one loaded handgun in plain view. Moreover, defendant was wearing a holster, he was reluctant or unable to produce requested documentation, the occupants of the truck provided inconsistent information, and three suspects had just been apprehended. Under the totality of these circumstances, exigency existed justifying a warrantless search of the interior of the vehicle for additional weapons.
Finally, we address defendant's contention that his sentence was excessive. The scope of our review of a sentence is limited. Appellate review is not an opportunity for this court to substitute our judgment for that of the trial judge and to impose our view of the appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Evers, 175 N.J. 355, 386 (2003). Rather, we review a sentence within a set of guidelines established by the Supreme Court in State v. Roth, 95 N.J. 334, 363-66 (1984). Within these guidelines, we can (a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience. [Id. at 364-65.]
In sentencing a defendant, a trial court must identify the relevant aggravating factors of N.J.S.A. 2C:44-1(a) and the relevant mitigating factors of N.J.S.A. 2C:44-1(b), "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing State v. Kruse, 105 N.J. 354 (1987)). "An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Ibid. (citing State v. Jarbath, 114 N.J. 394, 400-01 (1989)); Roth, supra, 95 N.J. at 364-65.
The judge found that two aggravating factors were present: the risk that defendant will commit another offense, and the need to deter defendant and others from violating the law.
N.J.S.A. 2C:44-1(a)(3) and (9). The judge did not place "a lot of weight" on aggravating factor number three, however, because defendant's prior criminal history involved a juvenile adjudication for a weapons offense four years earlier. He also found two mitigating factors: conduct resulting from circumstances unlikely to recur, and defendant particularly likely to respond affirmatively to probationary treatment.
N.J.S.A. 2C:44-1(b)(8) and (10). The judge concluded that the aggravating factors outweighed mitigating factors. Here, the judge properly identified and balanced the aggravating and mitigating factors that were supported by competent credible evidence in the record.
We perceive no manifest injustice in the length of defendant's sentence and parole ineligibility period, as it does not shock our conscience. Bieniek, supra, 200 N.J. at 612; Roth, supra, 95 N.J. at 363-65.
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