April 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE MINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. 07-09-3152 and 08-03-0837.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012 - Before Judges Cuff and Waugh.
Defendant Andre Mins appeals from his conviction, following a guilty plea, on one count of first-degree possession of five ounces or more of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(1), from Essex Indictment No. 07-09-3152 and one count of second-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), from Essex County Indictment No. 08-03-0837. He also appeals his sentence. We affirm.
We discern the following relevant facts and procedural history from the record on appeal.
Indictment No. 07-09-3152 arose out of events that occurred on May 23, 2007.*fn1 Because Mins' appeal focuses primarily on the denial of his motion to suppress the evidence related to that indictment, we recite the facts adduced at the suppression hearing held on July 17, 2008.
Sergeant Carla Hatcher of the East Orange Police Department testified on behalf of the State. On May 23, 2007, Hatcher arrived at headquarters to respond to a woman's claim that, during a physical altercation with Mins at his apartment, he "pulled a gun on her" and "[s]truck her with the gun." However, during cross-examination, when asked whether any officer obtained Mins' name prior to proceeding to his apartment, Hatcher answered, "I'm not certain."
Hatcher and five other officers subsequently proceeded to Mins' apartment. The officers brought the victim with them in order to locate Mins' apartment. Hatcher, accompanied by three of the other officers, approached Mins' front door, while the remaining two officers monitored the back of the apartment complex to prevent Mins from fleeing.
After Hatcher and the officers knocked on the front door, Hatcher heard someone inside the apartment ask, "Who is it?" The officers identified themselves as police, to which the unidentified person answered, "Okay, babe, give me a second." The person did not open the door immediately, and while the officers waited, they heard "noises in the apartment," including "some rummaging" and "a loud bang." Mins eventually came to the door. After the officers stated the reason for their presence, he "allowed" them to enter his apartment.
Once inside the apartment, the officers instructed Mins to place his hands on his head so they could determine if he possessed a weapon. Hatcher testified that the officers did this for their own safety. When questioned, Mins informed the police that he was alone in the apartment.
Nevertheless, Hatcher testified that concerns for their own safety led the officers to scan the apartment visually for other individuals. Hatcher saw what she recognized to be drug paraphernalia on the kitchen table, including empty bottles with red tops in a cardboard box and two scales with white residue.
After observing the drug paraphernalia, other officers entered the kitchen and found several razors with what they believed was drug residue, vials with colored tops, a bottle which contained yellow fluid and was similar to those found on the table, a calculator, and a plate with what appeared to be drug residue. Hatcher testified that another officer advised defendant of his rights prior to his arrest.
Officer Muhammad Thomas, one of the two officers positioned outside in the rear of Mins' apartment, testified that he "heard a crash," then saw an air conditioner on the ground. As Thomas radioed the officers inside the building to inform them, he saw a white plastic bag come out of the window of an apartment, which was later identified as Mins' apartment. According to Thomas, he observed a "brick of some type of substance," which was later determined to be drugs, inside the bag.
The judge denied the motion to suppress in an oral decision. He concluded that the police officers had a sufficient basis to arrest Mins on charges related to the assault of his girlfriend once they identified him as the person in the apartment. The judge found that Mins voluntarily invited the officers into his apartment, and concluded that, once inside the apartment, the police had a lawful basis to look through the apartment because they had reason to believe there was a weapon. The drug paraphernalia was found in plain sight as the police walked through the apartment, and the drugs themselves were found on the ground outside the window to Mins' apartment.
On November 20, 2008, Mins accepted the State's plea offer, which contemplated a plea of guilty to one count from each of the two indictments and a recommendation that Mins be sentenced to an aggregate of incarceration for ten years with a three-year term of parole ineligibility. The remaining charges from the two indictments were to be dismissed at sentencing. After satisfying himself that the plea was voluntary, knowing, and supported by an adequate factual basis for each count, the judge accepted the plea.
Mins was sentenced in accordance with the plea on January 15, 2009, and the remaining charges were dismissed. This appeal followed.
Mins raises the following issues on appeal:
POINT I: THE OFFICERS LACKED THE PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES, OR CONSENT, REQUIRED TO JUSTIFY THEIR WARRANTLESS ENTRY OF DEFENDANT'S RESIDENCE, NECESSITATING SUPPRESSION. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.
POINT II: THE COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We turn first to the motion to dismiss. Mins argues that the trial judge erred in denying his motion to suppress because the police officers did not have a lawful basis for a warrantless entry and search of his apartment.
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding 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).]
However, our review of the trial judge's legal conclusions is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010) (citing State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff'd, 206 N.J. 39 (2011)), certif. denied, 205 N.J. 78 (2011).
Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). Under both the federal and state constitutions, "judicially-authorized search warrants are strongly preferred before law enforcement officers conduct a search, particularly of a home." State v. Johnson, 193 N.J. 528, 552 (2008) (citing Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 742 (1984); Elders, supra, 192 N.J. at 246). Indeed, "[b]ecause our constitutional jurisprudence generally favors warrants based on probable cause, all warrantless searches or seizures are 'presumptively unreasonable.'" Ibid. (quoting Elders, supra, 192 N.J. at 246).
When police conduct a search without a warrant, the State bears the burden of demonstrating that an exception to the warrant requirement applies. State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). If the State fails to sustain that burden, the search is invalid. Alston, supra, 88 N.J. at 230.
A law enforcement officer may make a warrantless arrest of an individual in a public place if the arrest is supported by probable cause. See Maryland v. Pringle, 540 U.S. 366, 370, 124 S. Ct. 795, 799, 157 L. Ed. 2d 769, 774 (2003); State v. Brown, 205 N.J. 133, 144 (2011). "Probable cause exists if at the time of the police action there is a well[-]grounded suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001) (internal quotation marks and citation omitted).
When reviewing the circumstances of an arrest to determine whether it was supported by probable cause, "a court must look to the totality of the circumstances and view those circumstances from the standpoint of an objectively reasonable police officer." State v. Basil, 202 N.J. 570, 585 (2010) (internal quotation marks and citations omitted). Among other factors, a court may consider a police officer's experience and whether the location of the arrest was known for particular criminal activity. See State v. Moore, 181 N.J. 40, 46 (2004) (citations omitted). "Although several factors considered in isolation may not be enough, cumulatively these pieces of information may 'become sufficient to demonstrate probable cause.'" Ibid. (quoting State v. Zutic, 155 N.J. 103, 113 (1998)).
In addition, a search warrant is not required when a police officer is: (1) "lawfully [present] in the viewing area"; (2) the officer inadvertently discovers the evidence in plain view; and (3) it is "immediately apparent" to the police 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) (citations omitted); 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).
Based upon our review of the record, we are satisfied that the judge's factual finding that Mins voluntarily allowed the police to enter his apartment is "supported by sufficient credible evidence in the record." Elders, supra, 386 N.J. Super. at 228. Once inside, the police were able to verify that Mins was the assailant described by the victim. That verification and the information concerning the assault received directly from the victim provided probable cause for an immediate arrest, especially given the information that Mins had been armed. Although the arrest was not in a public place, the police were lawfully in the apartment at the time of the arrest.
In addition to their concern about the gun, the police had also heard a loud noise emanating from inside the apartment prior to their entry. The two factors together provided a sufficient basis for a visual search of the premises. The drug paraphernalia in the apartment and the drugs found below the window were in plain sight and lawfully seized by the police.
Consequently, we affirm the order denying the motion to suppress.
Having considered Mins' argument that the sentence was excessive in light of the facts and applicable law, we find it to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2).