March 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
ISMAUEL TORRES, DEFENDANT-RESPONDENT, AND SAUL RIVERA, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-10-2757.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2012
Before Judges Carchman, Baxter and Nugent.
By leave granted, the State appeals from a Law Division order granting the motion of defendants Ismauel Torres and Saul Rivera to suppress two guns seized from them without a search warrant.
Based solely on the report from a citizen that defendant Torres had just shot at him, the Camden police arrested defendant. When the police peered into the vehicle in which defendant was found, they saw a gun protruding from under the seat, and seized it, along with a second gun that was laying on the rear seat of the vehicle. The motion judge held that because the police failed to corroborate the citizen's accusation, the arrest of Torres was unlawful, and suppression of the guns was required as the fruit of the poisonous tree.*fn1
We disagree with the judge's conclusion that the victim's accusation against defendant was insufficient to establish probable cause to arrest. The victim had known defendant for several years and the victim repeated his accusation on four separate occasions. Because the arrest of defendant Torres was based on probable cause and was lawful, the warrantless seizure of the guns was not the fruit of the poisonous tree. Instead, the seizure was proper under the plain view exception to the warrant requirement. We reverse on the State's appeal. On defendant Rivera's cross-appeal, which challenged the judge's conclusion that the requirements of the plain view exception were satisfied, we affirm.
On the afternoon of March 3, 2010, Jesus Rodriguez called the 9-1-1 dispatcher of the Camden police department to report that he had been the victim of an attempted shooting at his home. Officer William Roberts was dispatched to respond to Rodriguez's call.
The officer met Rodriguez at his residence on North Seventh Street, where Rodriguez explained that, earlier in the day, he had quarreled with defendant Torres, whom he knew. As the argument ended, and Torres was leaving, Torres warned Rodriguez "he [would] be back." Rodriguez also told Officer Roberts that an hour after he left Torres, he, Rodriguez, was standing outside of his home when he noticed a red Dodge Caravan approaching. Aware that Torres drove a red Caravan, and concerned for his own safety, Rodriguez began to retreat into his home. According to Rodriguez, as the Caravan passed his home, Torres yelled something from the window and fired a single gunshot toward Rodriguez. The shot missed him.
Officer Roberts conducted a search of the home's exterior, but found no bullet or anything of evidential value. The officer then drove Rodriguez and his father, who was in the home at the time of the shooting, to police headquarters in order to obtain a sworn statement.
At the police station, Rodriguez spoke with Detective Moore. He described his fight with Torres, and for the third time that afternoon, reported that Torres fired a shot at him. Rodriguez confirmed that he knew Torres well, knew him by name, knew the car that he drove, and had been involved in "prior incidents" with Torres.
While speaking to the detective, Rodriguez received a telephone call from a friend, who informed him that Torres was sitting in a white Mercedes parked in front of a residence on Pierce Street in Camden. At that point, the officers were still in the "initial investigation" phase, as a sworn statement had not yet been obtained from Rodriguez or his father, and a formal complaint had not yet been issued. Based upon the information Rodriguez received from his friend concerning Torres's whereabouts, Detective Moore decided to halt the taking of the statement from Rodriguez and his father. Detective Moore proceeded to "assemble a group" of approximately six officers, and directed several marked and unmarked police units to proceed to the Pierce Street address. Detective Moore drove one of the unmarked vehicles, with Rodriguez and his father riding in the rear to potentially provide an identification.
Detective Moore drove past the parked Mercedes slowly so that "the victim could get a good look inside the vehicle." As they drove alongside the Mercedes, Rodriguez confirmed that Torres was sitting in the front passenger seat. Moore radioed the officers and reported that Rodriguez had made a positive identification of Torres. Moore directed the officers to "move in" and remove the occupants from the Mercedes. Two police vehicles were positioned in front and in the rear of the Mercedes to prevent the driver from pulling away.
The officers ordered the four occupants of the Mercedes to "put their hands up." Initially, Rivera, who was seated in the rear passenger seat, and Torres, did not comply. Both defendants were leaning forward, and "making movements with their hands," as if they were "hiding something under the car seats." According to Officer Roberts, the police were "concerned there was a gun inside the car" due to the hand movements they had observed and Rodriguez's report that Torres had fired at him earlier in the day. The officers ordered the four occupants out of the vehicle, handcuffed them, and secured them in the back of the police cars.
Officer Roberts approached the front passenger side of the Mercedes and looked inside. Because the defendants had just exited the vehicle, its doors were still open. Officer Roberts stood outside of the car, and peered into it while positioned in the door jamb. From that position, Roberts observed "the butt of a gun" "on the floor sticking out from under the [front passenger] seat," where Torres had been sitting.
Still outside the vehicle, Officer Roberts moved to the door jamb of the rear passenger side, and looked into the back of the car where Rivera had been seated. He observed a second handgun "obviously" laying "right in the middle of the back seat."
At that point, Officer Roberts reached into the car and seized both handguns. He later testified that he "saw the guns first, and then [he] entered the car" as he "wanted to make sure . . . the [weapons] were safe and secure." Roberts acknowledged during cross-examination that the occupants of the car had already been removed when he first saw the guns. That same night, the police impounded and towed the Mercedes and the red Caravan, which had been parked across the street from the Mercedes. Rodriguez and his father then returned to the police station to provide taped statements to police, after which the officers signed complaints against Torres and Rivera charging them with various weapons offenses.*fn2 Roberts acknowledged that prior to taking Torres into custody, the police had "no independent evidence" to corroborate the accusation made by Rodriguez. All he had "linking defendant to any criminality" was "the statement made by Mr. Rodriguez."
Torres was charged with: third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count one); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(9) (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f)(1) (count five); third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count six); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count eight). Rivera was indicted on a single count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven).
Defendants Torres and Rivera moved to suppress the guns found in the Mercedes. At the conclusion of the hearing, the judge found the testimony of Officer Roberts and Detective Moore credible, but determined that they had conducted a warrantless arrest without probable cause. The judge reasoned that the "unsworn report by a known citizen informant" was insufficient, standing alone, to establish probable cause to arrest Torres. The judge also held that the officers were required to corroborate Rodriguez's report of an attempted shooting before probable cause could be established. The judge specifically rejected the State's assertion that Torres's red Caravan, which was parked across the street from the Mercedes, constituted corroboration. The judge found that the mere proximity of the Caravan to the Mercedes was insufficient to corroborate "an accusation by a private citizen that another private citizen committed a crime," especially because the police had not become aware of the Caravan until after they had already arrested defendants Torres and Rivera.
The judge observed that while there was "clearly" a reasonable suspicion to justify an investigatory stop and temporary detention of defendant Torres, the unsworn and uncorroborated report provided by Rodriguez fell short of establishing probable cause to justify an arrest. The judge held, however, that the police-citizen encounter at issue was not an investigatory stop, as police had asked the suspects no questions, but was instead a full-blown arrest that was unsupported by probable cause. The judge also held that even if probable cause had been established, the plain view exception to the warrant requirement would not make the seizure of the guns lawful, as exigent circumstances were required, but the State had not established exigency. The judge signed a confirming order on April 4, 2011, granting the suppression motions of defendants Torres and Rivera.
The State moved for reconsideration, arguing that in light of the totality of the circumstances, Rodriguez's accusation was sufficient to establish probable cause and that exigency was not required so long as the State satisfied all of the elements of the plain view exception to the warrant requirement. On May 2, 2011, the judge denied the State's motion for reconsideration. Approximately four weeks later, on June 7, 2011, on his own motion, the judge partially reconsidered his denial of the State's motion for reconsideration, finding that if the plain view exception was satisfied, a showing of exigent circumstances was not required. However, he declined to reconsider the granting of defendant's motion to suppress, reasoning:
In the present case, had there been probable cause to arrest defendant Torres, the police seizure of the vehicle to effectuate that arrest would have been a lawful intrusion on constitutionally protected interests and the subsequent entry into the vehicle to seize suspected firearms and ammunition seen in plain view would have been justified under the plain view doctrine. . . .
The judge signed a confirming order on June 7, 2011, which provided that the State's motion to reconsider is "granted in part (as to the issue of the application of the plain-view doctrine) and denied in part (as to the issue of probable cause for the arrest)." On June 23, 2011, we granted the State's motion for leave to appeal.
On appeal, the State raises Point I, concerning probable cause, and responds to defendant's cross-appeal in Point II:
I: THE LAW DIVISION JUDGE ERRED IN FAILING TO RECOGNIZE THAT THE OFFICERS WERE LAWFULLY PRESENT IN THE VIEWING AREA TO MAKE THE PLAIN-VIEW OBSERVATION OF THE HANDGUNS INSIDE THE CAR, FOLLOWING A STOP OF DEFENDANTS' CAR BASED UPON AT LEAST A REASONABLE SUSPICION OF CRIMINAL ACTIVITY, WHICH THE DEFENSE CONCEDED AND THE JUDGE FOUND EXISTED, OR, ALTERNATIVELY, BASED UPON PROBABLE CAUSE TO EFFECT THE WARRANTLESS ARREST OF ONE OF THE OCCUPANTS. [Raised Below.]
A. The officers' actions taken prior to viewing the handguns in plain view required only the reasonable, articulable suspicion acknowledged to be present here.
B. Nevertheless, probable cause existed to arrest one of the occupants so that the officers were lawfully present in the viewing area to have made the plain view observation of the handguns inside the car.
II: THE LAW DIVISION JUDGE CORRECTLY RECOGNIZED THAT THE PLAIN VIEW SEIZURE OF THE HANDGUNS FROM THE OPEN DOORS OF A VEHICLE DURING A VALID MOTOR VEHICLE STOP WAS CONSTITUTIONALLY PERMISSIBLE AND DID NOT REQUIRE EXIGENCY, ALTHOUGH THE INHERENT DANGER OF TWO HANDGUNS NEVERTHELESS CLEARLY FURNISHED EXIGENCY. [Raised Below.]
In his cross-appeal, Rivera raises the following claims:
I: THE CAMDEN CITY POLICE DID NOT HAVE PROBABLE CAUSE TO ARREST CO-DEFENDANT TORRES WHILE SEATED IN THE STOPPED VEHICLE, THUS MAKING ALL EVIDENCE SEIZED FROM THE VEHICLE FRUIT OF THE POISONOUS TREE.
II: EVEN ASSUMING ARGUENDO THAT THE POLICE HAD PROBABLE CAUSE TO ARREST DEFENDANT TORRES AND SEIZE THE OTHER OCCUPANTS OF THE VEHICLE (INCLUDING DEFENDANT RIVERA), THE POLICE WERE NOT JUSTIFIED IN ENTERING THE VEHICLE TO SEIZE THE GUNS THEREIN.
Both the federal and state constitutions guarantee the right of the people to be free from unreasonable searches or seizures. State v. Johnson, 193 N.J. 528, 552 (2008). "Warrantless searches are presumptively unreasonable and thus are prohibited unless they fall within a recognized exception to the warrant requirement." State v. Pena-Flores, 198 N.J. 6, 18 (2009). Those exceptions "include, among others, plain view, consent, community caretaking, search incident to arrest," ibid., and the search of an automobile under "exigent circumstances" where it is "impracticable to obtain a warrant." Id. at 28. Even if one of the exceptions to the warrant requirement applies, the search will not be deemed valid unless the police have probable cause to conduct the search. Ibid.
Here, as we have noted, the judge held that the arrest of defendants was not supported by probable cause as the police failed to corroborate the information supplied by Rodriguez. The judge also held that if probable cause had existed for the arrest, the subsequent seizure of the guns from the interior compartment of the vehicle would have been valid under the plain view exception to the warrant requirement. In light of those conclusions, we focus our analysis on the corroboration requirement and the plain view exception. As a preliminary matter, we note that the judge's legal conclusions are reviewed de novo. State v. Ugrovics, 410 N.J. Super. 482, 487-88 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010).
Police-citizen encounters generally occur at three distinct levels, a field inquiry, an investigatory stop and an arrest. Of those three intrusions, the most demanding constitutional standard is reserved for an "arrest," which requires a showing of probable cause, based upon the totality of the circumstances. State v. Nishina, 175 N.J. 502, 510-11 (2003). In State v. O'Neal, 190 N.J. 601, 612 (2007), the Court described the probable cause standard as follows:
The probable cause standard is a well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. [Id. at 612. (Alterations in original) (citation omitted).]
In determining whether there is probable cause to arrest, the police must consider the totality of the circumstances. Ibid.
We agree with the judge's determination that when the police vehicles "moved in" and took the occupants of the vehicle into custody, they effectuated a warrantless arrest requiring probable cause, as opposed to an investigative stop that required reasonable suspicion. See Nishina, supra, 175 N.J. at 511. None of the officers on the scene asked any of the occupants any questions or performed any investigative activity before arresting defendants Torres and Rivera and the other two occupants. We agree with the judge's determination that even though there was a reasonable articulable suspicion that would have justified an investigative stop of the vehicle, the police conduct in this case cannot be justified on that basis because the police conducted an arrest, not an investigative stop.
Because the judge concluded that the failure of police to corroborate Rodriguez's accusation rendered the arrest of defendants Torres and Rivera unlawful, as unsupported by probable cause, we focus our analysis on the corroboration requirement. In making an arrest based upon probable cause, police are entitled to rely on hearsay information provided by citizens as well as confidential informants. State v. Keyes, 184 N.J. 541, 555-56 (2005). In evaluating information provided by a citizen eyewitness, the police must evaluate the reliability of the information based upon the totality of the circumstances, including both the citizen's veracity and the basis of his or her knowledge. State v. Basil, 202 N.J. 570, 585-86 (2010).
"Generally speaking, information imparted by a citizen directly to a police officer will receive greater weight than information received from an anonymous tipster." Id. at 586. "[A]n objectively reasonable police officer may assume that an ordinary citizen reporting a crime, which the citizen purports to have observed, is providing reliable information." Ibid. The Court noted in Basil that unlike an anonymous informer, "whose reliability must be established," an ordinary citizen reporting a crime is "presumed to be reliable." Ibid. The Court observed:
The distinction [between an accusation made anonymously and one made in-person] is grounded in common experience because . . . when a tip is made in-person, an officer can observe the informant's demeanor and determine whether the informant seems credible enough to justify immediate police action without further questioning.
Moreover, an in-person informant risks losing anonymity and being held accountable for a false tip [under] . . . N.J.S.A. 2C:28-4(a). [Ibid. (internal citations and quotation marks omitted).]
Here, because Rodriguez was an ordinary citizen reporting a crime, his "veracity is assumed." State v. Belliard, 415 N.J. Super. 51, 79 (App. Div. 2010) (citation and internal quotation marks omitted), certif. denied, 205 N.J. 81 (2011). As a result, the only remaining issue is the basis of his knowledge to determine whether the information was obtained in a reliable way. Basil, supra, 202 N.J. at 586. As is evident, because Rodriguez was reporting a crime that had been committed against him, his complaint to the police was based upon first-hand knowledge, not second- or third-hand information. Nonetheless, the judge insisted that the police should have conducted a further investigation to corroborate the information Rodriguez provided because Rodriguez never provided a sworn statement.
In making that determination, the judge relied solely on Sanducci v. City of Hoboken, 315 N.J. Super. 475 (App. Div. 1998), in support of his conclusion that the police must obtain corroboration of a citizen complaint before probable cause can be found to exist. Sanducci was a civil matter in which the plaintiff challenged the legality of his arrest. Id. at 478. In Sanducci, the plaintiff became involved in a dispute with her relatives, as a result of which she and three of her relatives were arrested by members of the Hoboken police department who had "witnessed the fracas" and charged all four with simple assault. Id. at 479. The plaintiff did not challenge that arrest. Instead, she challenged her arrest on a charge of fourth-degree stalking lodged by one of the three relatives. She asserted that the police should not have accepted one of the three relatives' sworn statement on the stalking charge without conducting further investigation. Id. at 479-80.
We rejected that contention, concluding that the relative's sworn statement, which, if false, subjected the relative to potential civil or criminal liability, was sufficient, standing alone. Id. at 482. We noted that although further investigation might have disclosed the falsity of the relative's factual allegations, no such further investigation was required. Ibid. A requirement of further investigation "could paralyze the police and prevent them from acting to protect the public." Ibid. We concluded that the police did not infringe upon the plaintiff's constitutional rights by arresting her for stalking based solely on the relative's sworn complaint. Id. at 482-83.
Here, relying on Sanducci, the judge held that the police were not entitled to rely on Rodriguez's complaint because he had not signed a sworn statement. The judge held that in the absence of a sworn statement, further investigation or corroboration was required. The judge noted that he was not aware of "any cases where an unsworn report by a known citizen informant, by itself with . . . no additional information uncovered by any other police investigation, . . . constitute[d] probable cause for an arrest."
The judge's insistence on a sworn statement ignores the totality of the circumstances that were presented here. The undisputed evidence in the record establishes that Rodriguez was willing to provide a sworn statement to the police, and had accompanied Officer Roberts to the detective bureau for the purpose of doing so, but was interrupted when Detective Moore decided to temporarily suspend the taking of the sworn statement so that Detective Moore and Rodriguez could proceed to conduct the drive-by of the parked Mercedes. Rodriguez was obviously willing to provide the sworn statement. He never expressed the least hesitation or unwillingness about doing so. The only reason the arrest of defendants Torres and Rivera occurred before Rodriguez provided the sworn statement was because Detective Moore made the tactical decision to seize upon the opportunity to identify and apprehend the perpetrators without letting any further time elapse.
While we have no quarrel with the judge's stated preference for a sworn statement from a citizen complainant, rather than an unsworn accusation, the lack of a sworn statement should not be considered in isolation, nor under the circumstances presented here, should it be deemed dispositive. As the State correctly argues, Rodriguez made an in-person complaint to the police when he identified himself to the 9-1-1 responder. He repeated his accusation against Torres when Officer Roberts came to Rodriguez's home a little while later. He repeated his accusation yet a third time to Detective Moore, and was in the process of providing a sworn statement, when he and Detective Moore were interrupted by the telephone call from Rodriguez's friend. And Rodriguez repeated the accusation a fourth time when he told Detective Moore during the drive-by that Torres was seated in the front seat of the Mercedes.
Rodriguez was a citizen who called 9-1-1 and repeated his accusation against Torres on three separate occasions to a police officer or a detective. Had Rodriguez's information been knowingly false, he would have subjected himself to prosecution for the fourth-degree crime of filing a false report to law enforcement authorities. N.J.S.A. 2C:28-4(a) provides:
A person who knowingly gives . . . false information to any law enforcement officer with purpose to implicate another commits a crime of the fourth-degree.
For these reasons, we part company from the judge's insistence that the unsworn statements provided by Rodriguez were insufficient to constitute probable cause. "This was a face-to-face encounter" that allowed Officer Roberts and Detective Moore to make "an on-the-spot credibility assessment of the citizen informant," Rodriguez. Basil, supra, 202 N.J. at 587.
Relying on Basil, defendant urges us to hold that corroboration of Rodriguez's accusation was required. We do not read Basil in that fashion. In Basil, two Jersey City police officers responded to a report of a man with a shotgun. Upon arrival at the scene, they were approached by a young woman who "'came from around the corner.'" Id. at 578. She informed one of the officers that the defendant had pointed a shotgun in her direction and had told her to leave the area. Ibid. She also told the police that she saw the defendant throw the shotgun underneath a black Cadillac. Ibid. The officers recovered the shotgun from underneath the Cadillac. Ibid.
While the woman was speaking to the police, she was nervous and told them she did not want to speak with any detectives or become involved in the case "'because she was scared for her safety.'" Ibid. Neither officer obtained her name, address or telephone number. Ibid. The police arrested the defendant, who moved to suppress the evidence of the gun. Id. at 579.
On appeal, the Supreme Court upheld the judge's refusal of defendant's motion to suppress. The Court reasoned:
The young woman was an identifiable citizen and purported to give information from her personal knowledge regarding events that occurred minutes earlier. This was a face-to-face encounter that allowed the officer to make an on-the-spot credibility assessment of the citizen informant. Importantly, the young woman's reliability was immediately corroborated by the discovery of the shotgun in the precise location where she said it was discarded.
That the young woman would later refuse to give any identifying data about herself out of an expressed fear for her safety does little to diminish the reliability of the information when it was given. . . .
From the standpoint of an objectively reasonable police officer, the combination of an identifiable citizen's account of events that she witnessed firsthand minutes earlier and the discovery of corroborative physical evidence - the shotgun with which she was purportedly threatened - in the location she described provided probable cause to arrest defendant. [Id. at 587 (internal citations omitted).]
Based upon the Court's reference to "discovery of corroborative evidence," ibid., defendant argues that the Basil Court held that corroboration is always required. We do not read the Court's opinion as defendant suggests. The Court did not hold in Basil that corroboration was required. Instead, the Court reasoned that the unsworn statement of the citizen who refused to give her name constituted probable cause in combination with the discovery of the shotgun at the location she described. There is nothing in the Court's opinion that would require us to conclude that corroboration is always necessary, or more to the point here, that corroboration is needed where the citizen provides his name and repeats his accusation against a known assailant on four separate occasions. Considering the totality of the circumstances, as we must, O'Neal, supra, 190 N.J. at 612, we conclude that probable cause existed to arrest defendants Torres and Rivera.
Having determined that the arrest of defendants was based upon probable cause and was lawful, we turn to the question of whether the warrantless seizure of the guns from the interior of the Mercedes was lawful under the "plain view" exception to the warrant requirement. For a plain view seizure to be constitutional, the following requirements must be met: 1) the officer must be legally in a position to view the evidence; 2) the discovery of the evidence must be inadvertent; and 3) the officer must have probable cause to associate the object with criminal activity. State v. Bruzzese, 94 N.J. 210, 236-37 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
Applying the Bruzzese factors, we are satisfied that Officer Roberts was legally in a position to view the evidence, as the arrest of defendants was lawful, thereby satisfying the first prong. Additionally, it was immediately apparent to Officer Roberts that the objects in his view were evidence related to the crime Rodriguez had described, thereby satisfying the third prong. In his cross-appeal, defendant argues that because the guns were not discovered inadvertently, the trial court erred in holding that the seizure of the guns was valid. We note that the United States Supreme Court eliminated the "inadvertent discovery" requirement in Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112, 118-19 (1990). The Supreme Court concluded that "even though inadvertence is a characteristic of most legitimate 'plain view' procedures, it is not a necessary condition." Ibid.
We need not decide whether the lack of inadvertence violates Article I, Paragraph 7 of the New Jersey Constitution as we are satisfied that the inadvertence requirement has been satisfied.
"The purpose of the inadverten[ce] requirement is to ensure that a 'plain-view seizure will not turn an initially valid (and therefore limited) search into a 'general one[.]'" State v. Damplias, 282 N.J. Super. 471, 478 (App. Div. 1995) (quoting Horton, supra, 496 U.S. at 137-38, 110 S. Ct. at 2308, 110 L. Ed. 2d at 123), certif. denied, 154 N.J. 607 (1998). "It is to prevent the police from engaging in planned warrantless searches, where they know in advance the location of certain evidence and intend to seize it, relying on the 'plain view' exception as a pretext." Id. at 478-79.
As we observed in Damplias, "[t]here are two questions that must be considered to determine whether the inadverten[ce] requirement has been satisfied." Id. at 479. The first question is, in accordance with Bruzzese, supra, 94 N.J. at 236, "Did the police know in advance 'where the evidence was located' . . . [?]" The second question is: "Did the police 'intend beforehand to seize' the evidence?" Damplias, supra, 282 N.J. Super. at 479. If the answer to both questions is in the affirmative, then the inadvertence requirement is not satisfied, and the seizure cannot be upheld under the "plain view" doctrine. Ibid. "However, if the answer to the first question is yes, but the answer to the second question is no, the inadverten[ce] requirement is still satisfied because the purpose of the requirement is to prevent warrantless pretextual searches and seizures." Ibid. Merely because the police are aware of the location of an item of evidence "does not preclude a finding of inadvertence if the police have no intention of seizing the evidence when they lawfully go to the place where the evidence is located." Ibid. Instead, "[i]t must be shown that the police knew in advance where the evidence was located and intended beforehand to seize the evidence without a warrant." Ibid.
The facts do not demonstrate that at the time Officer Roberts approached the Mercedes and peered inside that he "knew in advance where the evidence was located." Ibid. It is true that Officer Roberts peered into the vehicle to see if the gun might be there, and intended beforehand to seize the gun without a warrant if the gun was in the car. Nonetheless, it is also true that neither Officer Roberts nor Detective Moore knew where the gun Torres fired would be located. All they knew was where defendant was located, namely, inside the parked Mercedes. For all the officers knew, the gun used by Torres was still in the red Dodge Caravan that Torres was driving when he fired at Rodriguez. Nor did the police have any reason to suspect that there would be two guns in the Mercedes, rather than the one gun that Torres had presumably used.
We recognize that the officers saw defendants Rivera and Torres bending over and seeking to furtively hide something under the seat of the Mercedes. But defendants could have been hiding any contraband -- drugs, stolen property, or a gun. There was no reason to believe that what defendants were hiding was necessarily a gun. We conclude that the discovery of the guns was inadvertent as the police did not know in advance that a gun would be located in the Mercedes, much less that it would be in plain view, or, for that matter, that two guns would be found in plain view. For that reason, we affirm the judge's conclusion that the discovery of the guns was inadvertent, and that the plain view exception to the warrant requirement was satisfied.
In sum, we reverse the trial judge's conclusion that the arrest of defendants was unsupported by probable cause. We affirm his determination that the plain view exception was satisfied. Accordingly, we reverse on the State's appeal and affirm on defendant's cross-appeal.
Affirmed in part; reversed and remanded in part.