May 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNETH M. VALDES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-12-2353.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2012
Before Judges Koblitz and Haas.
After the trial court denied his motion to suppress evidence in connection with Monmouth County Indictment No. 09-12-2353, defendant Kenneth M. Valdes pled guilty to two counts of third-degree burglary. N.J.S.A. 2C:18-2. Pursuant to a plea agreement, the remaining two counts of burglary, two counts of theft and one count of possession of a controlled dangerous substance were dismissed. Also pursuant to the plea agreement, defendant was sentenced to a probationary period. Defendant appeals from the judgment of conviction entered on September 24, 2010. After reviewing the record in light of the contentions advanced on appeal, we affirm the denial of the motion to suppress and remand only for a correction of the judgment of conviction.
The suppression hearing revealed the following facts. At 7:15 a.m. on September 30, 2009, Marlboro Township Police Officer Brian Hammarstrom was dispatched to investigate a car burglary reported by the daughter of the car owner. She described the burglar to the 9-1-1 operator as a young, clean-shaven white man, between the ages of twenty and twenty-five, wearing glasses, a baseball cap, a dark sweatshirt and dark pants, and carrying a backpack. When the witness confronted the young man, he fled on foot.
Fifteen minutes after the burglary report, Hammarstrom arrived at the nearby Cambridge Square shopping plaza, which was situated in the direction the burglar was reported to have fled. There he observed defendant, a young white man, approximately twenty years old, wearing a dark blue sweatshirt and jeans and carrying a computer bag diagonally across his body with the bag portion on his back. He appeared clean-shaven, although on closer inspection he had a thin, "chin strap" strip of facial hair. Hammarstrom approached defendant and "asked him what was going on." Defendant appeared nervous and "fidgety." Hammarstrom asked for identification and observed that defendant had a baseball cap tucked into the hood of his sweatshirt. Both of his pants' legs were wet at the bottom. Defendant said he had walked from a friend's house, a route that would have taken him past the scene of the burglary. After another officer arrived, defendant provided identification. Defendant was then asked to put his hands on the patrol car for the officers' protection, at which time he became argumentative and "took an aggressive stance that was almost like a boxer stance or . . . fighting stance." Hammarstrom then noticed a large bulge in his left rear pocket.
Concerned for their safety, the other officer at the scene, Officer Timothy Snyder, patted down defendant and found a pill bottle. As soon as Snyder found the bottle, defendant exclaimed, "Oh, my God, I'm in a lot of trouble." The bottle had no label and contained a glassine bag. Hammarstrom asked defendant what the pill bottle contained and defendant replied "Xanax." When asked if he had a prescription, defendant said no. Defendant was placed under arrest for possession of the Xanax. Various other items, including coins, jewelry and electronic equipment were found on defendant's person and in his bag.
When the eyewitness was brought to the arrest location, she was unable to identify defendant as the burglar.
Defendant raises the following issues on appeal:
POINT I: DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.
A. INVESTIGATORY STOP
B. PROTECTIVE SEARCH
C. SEIZURE OF PILL BOTTLE
POINT II: THE COURT BELOW ERRED IN SENTENCING DEFENDANT.
Our standard of review on a motion to suppress is limited. We 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, 192 N.J. 224, 243 (2007). "A trial court's findings should not be disturbed simply because an appellate court '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.'" State v. Mann, 203 N.J. 328, 336 (quoting State v. Johnson, 42 N.J. 146, 162, (1964)). We generally defer to a motion court's findings, "which are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010). We will reverse only if convinced that the motion judge's factual findings 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).
"In those circumstances solely" we "'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). However, an appellate court "owes no deference to the trial court in deciding matters of law." Mann, supra, 203 N.J. at 337 (citing State v. Gandhi, 201 N.J. 161, 176 (2010)). "When a question of law is at stake, the appellate court must apply the law as it understands it." Ibid.
Under the Fourth Amendment of the Federal Bill of Rights and under 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).
A valid investigatory stop must be "based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion" that the person has been or is about to engage in criminal activity. State v. Rodriguez, 172 N.J. 117, 126-27 (2002). Officer Hammarstrom stopped defendant, who fit the description of the burglar, a quarter mile from the location of the burglary, a mere fifteen minutes after receiving the burglary report. When approached by the officer, defendant appeared nervous and "fidgety." Thus, Officer Hammarstrom had sufficient reasonable suspicion to conduct an investigatory stop of defendant.
Furthermore, the police had a sufficient basis to conduct a protective frisk of defendant. When conducting a valid investigatory stop, an officer is permitted to conduct a limited search of a subject's outer clothing if the officer has a specific and particularized basis for an objectively reasonable suspicion that the subject is armed and dangerous. State v. Roach, 172 N.J. 19, 27 (2002). Defendant behaved in a hostile fashion and had a bulge in his back pocket, thus justifying a pat-down.
During the course of such a protective frisk, the police are authorized to seize any contraband discovered. State v. Toth, 321 N.J. Super. 609, 614 (App. Div. 1999). As soon as he felt the pill bottle in defendant's pocket, Officer Snyder, based on his training and experience, suspected that it contained contraband. Moreover, as Snyder discovered the bottle, defendant exclaimed that he was in trouble. It was thus "immediately apparent" to Snyder that the bottle contained contraband. Toth, supra, 321 N.J. Super. at 615 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 334, 346 (1993)) (internal quotation marks omitted).
After defendant was arrested for possession of Xanax without a prescription, the officers relied upon the well-established Fourth Amendment exception authorizing the warrantless search of persons incident to their lawful arrest to justify the search of his person and the bag he was carrying. See Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969); State v. Dangerfield, 171 N.J. 446, 461 (2002). Such police conduct is lawful if the police had probable cause to arrest prior to the search. Defendant acknowledged he did not have a prescription for the Xanax and thus his arrest was lawful.
We therefore agree with the motion judge's denial of defendant's motion to suppress. The mere fact that after defendant's arrest the eyewitness to the car burglary was unable to identify defendant is irrelevant to assessing the reasonableness of the police conduct.
Defendant also argues that the judge abused his discretion by sentencing him to eighteen months, rather than twelve months, of probation.*fn1 Although not urged by defense counsel at trial, defendant argues that the judge should have applied mitigating factor 12, the willingness of defendant to cooperate with law enforcement authorities. N.J.S.A. 2C:44-1b(12). The plea agreement and sentencing transcript are silent as to any cooperation defendant may have given the police. We do not find that the sentencing judge abused his discretion by failing to find this factor. See State v. Bieniek, 200 N.J. 601, 612 (2010).
The State concedes that the judgment of conviction should be corrected to reflect the judge's finding that the aggravating and mitigating factors were in equipoise. We remand for that purpose alone.
Affirmed in part and remanded only to correct the judgment of conviction.