January 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ORDALE R. TELFAIR, A/K/A ORDALE TELFAIR, ORDELL TELFAIR, ODELL R. TELFAIR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-03-00239.
New Jersey Court of Appeals a5384_09.pdf
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011
Before Judges Lihotz and Waugh.
Defendant Ordale Telfair appeals from his conviction, following a guilty plea, for third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1), as well as the resulting sentence of incarceration for five years with no parole disqualifier. We affirm.
We discern the following facts and procedural history from the record on appeal.
Early on the morning of January 17, 2009, Millville Police Officer James Grone was dispatched to an address on East Oak Street to investigate a report of a fight. He observed two men fighting when he arrived. One of the men was subsequently identified as Telfair, but the other man was never identified because he fled the scene. According to Grone, Telfair was "kicking and punching [the other man who] was curled up next to a fence." The kicking and punching appeared "very forceful" to Grone.
As Grone was getting out of his patrol car, Telfair turned, ran up onto the porch of the adjacent residence, and then ran into the house. He ignored Grone's order to stop. Grone followed him through the open door into the house. As Grone approached Telfair, he observed him slow down, reach into his jacket pocket, and remove an object, which he threw over the top of the couch. Grone described the object as a "plastic baggie." Grone caught up with Telfair, grabbed his arm, and threw him to the ground. He then placed Telfair under arrest.
Based upon his training and experience, Grone believed that the baggie contained illegal drugs. Consequently, while other police officers took care of Telfair, Grone retrieved two baggies containing a white, rock-like substance from behind the couch. They were subsequently found to contain cocaine.
Although he was originally charged with several drug offenses, Telfair was subsequently indicted on a single charge of possession of cocaine. At the time of his arrest, he was also charged with two disorderly persons offenses, violations of N.J.S.A. 2C:33-2(a)(2) (creating "a hazardous or physically dangerous condition") and N.J.S.A. 2C:33-4 (harassment), arising out of the fight observed by Grone. He was arrested on subsequent, unrelated offenses in August 2009.
Telfair moved to suppress the evidence recovered at the time of the January arrest, arguing that the seizure of the drugs was unlawful. Following a hearing on August 25, at which Grone testified, the judge delivered an oral opinion denying the motion.
On September 14, Telfair accepted a plea bargain and pled guilty to possession of cocaine on January 17 and a downgraded disorderly persons charge resulting from the August arrest. The plea called for a sentence of incarceration for five years with no period of parole ineligibility, and a brief concurrent term for the other offense. After satisfying himself that the plea was knowing and voluntary, and that there was a sufficient factual basis, the judge accepted the plea.
On January 15, the judge imposed the sentences called for in the plea.
He found aggravating factors three (risk of committing another
offense), six (extent of prior record), and nine (deterrence).
N.J.S.A. 2C:44-1(a)(3), (6), (9). The judge found no statutory
mitigating factors. N.J.S.A. 2C:44-1(b). Although the judge had
intended to give Telfair the benefit of mitigating factor twelve
(willingness of the defendant to cooperate with law enforcement
authorities), he decided not to do so because Telfair had filed a
motion to withdraw his plea on the date of the sentencing.*fn1
N.J.S.A. 2C:44-1(b)(12). This appeal followed.
On appeal, Telfair raises the following issues:
POINT ONE: DEFENDANT'S "MINOR OFFENSE" DOES NOT CREATE THE EXIGENCY REQUIRED FOR THE "HOT PURSUIT" EXCEPTION PERMITTING A WARRANTLESS ENTRY INTO A RESIDENCE AND MILLVILLE OFFICERS ACTED UNLAWFULLY AND WITHOUT PRIVILEGE WHEN THEY PURSUED DEFENDANT INTO A RESIDENCE TO EFFECTUATE AN ARREST FOR A DISORDERLY PERSONS OFFENSE AND ANY EVIDENCE SEIZED AS A RESULT OF THAT ARREST MUST BE SUPPRESSED. POINT TWO: THE TRIAL COURT ERRED IN REFUSING TO GRANT THE DEFENSE MOTION TO SUPPRESS BECAUSE THE CONTRABAND SEIZED WAS NOT IN PLAIN VIEW AND THE STATE FAILED TO SATISFY THE "PLAIN VIEW" DOCTRINE.
POINT THREE: THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A FIVE-YEAR TERM WHEN IT REFUSED TO GIVE DEFENDANT THE BENEFIT OF MITIGATING FACTORS ELEVEN AND TWELVE BECAUSE THE QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
The Supreme Court has explained the standard of review applicable to a trial court's decision on a motion to suppress, as follows:
[A]n appellate court reviewing a motion to suppress 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. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); 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))).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid. [State v. Elders, 192 N.J. 224, 243-44 (2007).]
In contrast to a judge's factual findings, a judge's legal determinations are subject to our plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.) (citing State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001)), certif. denied, 182 N.J. 148 (2004).
The United States Supreme Court has emphasized the protections afforded by the Fourth Amendment to the home as follows:
It is axiomatic that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. It is not surprising, therefore, that the Court has recognized, as "a 'basic principle of Fourth Amendment law[,]' that searches and seizures inside a home without a warrant are presumptively unreasonable." [Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 742 (1984) (alteration in original) (internal citations and footnote omitted).]
Indeed, warrantless arrests in the home are permissible only when there exists both probable cause and exigent circumstances. Payton v. New York, 445 U.S. 573, 588-89, 100 S. Ct. 1371, 1381, 63 L. Ed. 2d 639, 652 (1980). The United States Supreme Court has recognized only a few situations that constitute the necessary exigent circumstances to make the warrantless arrests in the home lawful. See Welsh, supra, 466 U.S. at 750, 104 S. Ct. at 2097-98, 80 L. Ed. 2d at 743 ("United States v. Santana, 427 U.S. 38, 42-43[, 96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300, 305-06] (1976) (hot pursuit of a fleeing felon); Warden v. Hayden, 387 U.S. 294, 298-299[, 87 S. Ct. 1642, 1645-46, 18 L. Ed. 2d 782, 787-88] (1967) (same); Schmerber v. California, 384 U.S. 757, 770-771[, 86 S. Ct. 1826, 1835-36, 16 L. Ed. 2d 908, 919-20] (1966) (destruction of evidence); Michigan v. Tyler, 436 U.S. 499, 509[, 98 S. Ct. 1942, 1950, 56 L. Ed. 2d 486, 499] (1978) (ongoing fire)").
Even in cases in which exigent circumstances are found to exist, if "the government's interest is only to arrest for a minor offense, th[e] presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." Welsh, supra, 466 U.S. at 750, 104 S. Ct. at 2097-98, 80 L. Ed. 2d at 743 (footnote omitted); see also State v. Holland, 328 N.J. Super. 1, 8 (App. Div.) (quoting Welsh, supra, 466 U.S. at 750, 104 S. Ct. at 2097-98, 80 L. Ed. 2d at 743), certif. denied, 164 N.J. 560 (2000); State v. Guertin, 461 A.2d 963, 970 (Conn. 1983) ("The [exigent-circumstances] exception is narrowly drawn to cover cases of real and not contrived emergencies. The exception is limited to the investigation of serious crimes; misdemeanors are excluded.").
In State v. Bolte, 115 N.J. 579, 597-98, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989), our Supreme Court held, in a case involving motor vehicle and disorderly persons offenses, that "hot pursuit" does not ordinarily satisfy the "exigent circumstances" requirement of Welsh when only minor offenses are involved. The Court left open the possibility that, when pursuing an individual for a minor offense, "a serious threat to the public safety" might create sufficient exigent circumstances to justify a warrantless home entry. Id. at 598.
Although Telfair seeks to characterize the conduct witnessed by Grone prior to pursuing him into the house as a mere minor offense, we disagree. The judge, who described Grone as a truthful witness, found that Grone had observed Telfair "[k]icking and punching someone who was lying in a ball against a fence," and also accepted Grone's characterization of the event as "a vicious attack." Those findings are supported by substantial credible evidence in the record.
Based upon the judge's factual findings, we agree with his determination that exigent circumstances were present. Although Grone ultimately charged Telfair with a lesser offense, the facts supplied reason for Grone to believe that there had been an aggravated assault as defined by N.J.S.A. 2C:12-1(b)(1) (causing serious bodily injury to another). In addition, as the judge correctly observed, Grone did not know whether Telfair was fleeing into his own house, the house of the victim of his vicious assault, or the house of an uninvolved third party. Grone's inaction could have subjected others to physical harm. See State v. Johnson, 193 N.J. 528, 553 (2008).
Once lawfully in the house, Grone saw Telfair take what appeared to be a baggie containing illegal drugs out of his pocket and throw it behind the couch. The judge held that the plain view doctrine applied to that observation. Telfair argues that the plain view doctrine was not applicable, and that Grone should have obtained a warrant before attempting to retrieve the baggie.
Under the plain view doctrine, a warrant is not required to perform a search when a police officer is (1) lawfully present in the viewing area, (2) the officer inadvertently*fn2 discovers the evidence in plain view, and (3) it is "'immediately apparent' to the officer that [the] items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002); see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The trial judge, having specifically found Grone's pivotal testimony to be credible, correctly ruled that the plain view doctrine was applicable.
The cocaine in this case was not discovered as the result of a generalized exploratory search, but was simply retrieved from the location where Grone saw Telfair attempt to hide it as he was lawfully pursuing Telfair. In State v. Ford, 278 N.J. Super. 351, 356 (App. Div. 1995), we observed the following:
In the present case, we are not dealing with an exploratory search for evidence. As in State v. Henry, 133 N.J. 104, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993), an officer here viewed defendant trying to hide a plastic bag containing the later seized contraband. Although the Henry seizure was upheld as incident to a lawful arrest, we see no reason in principle why, once the officer's lawful right to be present was established, picking up the mattress to retrieve evidence which the officer observed being concealed there would have been deemed an unconstitutional search. The seizure of that evidence would have been subject to no further reasonable expectation of privacy.
The same reasoning applies in this case, in which Grone did nothing more than retrieve the baggies he saw Telfair throw behind the couch.
Consequently, we affirm Judge Benjamin C. Telsey's denial of Telfair's motion to suppress the cocaine.
Finally, Telfair challenges his sentence. After a careful review of the record and the applicable law, we find Telfair's arguments in that regard to be without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only that the sentence was consistent with the plea agreement and that the two mitigating factors Telfair raises on appeal were not urged at the sentencing hearing.
In any event, there is little compelling evidence in the record to support Telfair's assertion that he supplied significant support to his child, which renders mitigating factor eleven (imprisonment of the defendant would entail excessive hardship to himself or his dependents) inapplicable. N.J.S.A. 2C:44-1(b)(11). Telfair's purported cooperation with law enforcement, which the judge had thought of applying, was shown to be ephemeral when Telfair sought to retract the guilty plea. N.J.S.A. 2C:44-1(b)(12).