June 12, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEVEN L. HALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-10-1784.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2012 -
Before Judges Fisher and Baxter.
Following the entry of a guilty plea to the second-degree crime of committing a narcotics distribution offense while possessing a firearm, N.J.S.A. 2C:39-4.1, defendant Steven L. Hall appeals the denial of his motion to suppress the handgun found in his vehicle. We concur in the judge's determination that the seizure of the handgun was lawful pursuant to the plain view exception to the warrant requirement. We affirm.
On August 17, 2007, New Brunswick Police Officer Miguel Chang received information from a known confidential informant that a black male named Steven would soon be arriving at the intersection of Handy and Joyce Kilmer Streets to drop off narcotics. The informant described "Steven" as having "really short hair, almost bald looking, with a goatee" and wearing a red shirt and blue shorts. The informant also told Officer Chang that Steven would be driving a silver Chrysler.
Chang considered the informant extremely reliable, as the informant had provided information in the past that led to six separate narcotics convictions. Acting upon the informant's tip, Chang and Investigator Stopko set up surveillance at the intersection of Handy and Joyce Kilmer. Less than thirty minutes later, a silver Chrysler approached the intersection, parked for a few minutes and then drove away. Officer Chang followed the Chrysler and clocked its speed at thirty-five miles per hour in a twenty-five mile per hour zone. Chang, in his unmarked vehicle, activated his lights and stopped the Chrysler.
The two officers exited their vehicle, with Officer Chang approaching the driver's side and Investigator Stopko approaching the passenger side of the Chrysler. The officers directed the driver, defendant, to provide his motor vehicle credentials. Defendant complied.
According to the testimony Officer Chang provided at the suppression hearing, Investigator Stopko informed Chang that when he, Stopko, peered into the vehicle during the motor vehicle stop, "he observed a clear, white bag, in the area of the center console and the passenger side seat on the floor. Sort of wedged between." The two officers returned to defendant's vehicle, ordered him out of the car, arrested him and placed him in their police vehicle. At that point, Chang "went to the passenger side, and retrieved the narcotics."
Chang testified that when he bent over to seize the bag of narcotics, he "s[aw] a black handle of a firearm, towards the underneath part of the passenger seat." He seized the gun and the narcotics, explaining that "when I looked underneath the passenger-side seat, I saw the handle part of the black handgun. . . . Like towards the rear of underneath the passenger-side seat."
Defendant testified at the suppression hearing, asserting that the police must have "planted" the cocaine and the gun in his car because he had never seen the drugs or gun before.
In a written decision issued on June 9, 2008, the judge ruled that based upon the reliable information provided by the confidential informant, the police had sufficient probable cause to initiate the vehicle stop and search the vehicle. She also found that the warrantless seizure of the cocaine and the handgun were justified by two exceptions to the warrant requirement, plain view and exigent circumstances. The judge issued a confirming order on June 30, 2008, denying defendant's motion to suppress the cocaine and the handgun.
On appeal, defendant challenges only the denial of his motion to suppress the handgun. He argues:
I. THE HAND-GUN FOUND UNDERNEATH THE PASSENGER SEAT SHOULD HAVE BEEN SUPPRESSED SINCE IT WAS NOT FOUND IN PLAIN VIEW OR AS A RESULT OF ANY EXIGENCY.
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," ibid., and the search of an automobile under "exigent circumstances" where it is "impracticable to obtain a warrant," id. at 28. The burden is on the State, as the party seeking to uphold a warrantless search, to prove by a preponderance of the evidence that such search falls within one of the recognized exceptions. State v. Pineiro, 181 N.J. 13, 19-20 (2004).
In our review of the judge's findings of fact, we are obliged to accept those findings so long as they are supported by substantial and credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). In contrast, we owe no deference to the judge's legal conclusions, which we review de novo. State v. Gandhi, 201 N.J. 161, 176 (2010).
We begin by determining whether the stop of defendant's vehicle was lawful. As we have noted, the judge concluded that the information supplied by the known, reliable confidential informant provided probable cause. We need not evaluate whether the information provided by the confidential informant satisfied the reliability, and basis of knowledge, standards established by State v. Keyes, 184 N.J. 541, 555-56 (2005), as we are satisfied that the police were entitled to stop defendant's vehicle because defendant was driving at a speed of thirty-five miles per hour in a twenty-five mile per hour zone. An officer observing a motor vehicle infraction is authorized to stop the vehicle. Locurto, supra, 157 N.J. at 466-67, 470. See also State v. Carty, 170 N.J. 632, 642 (noting that motor vehicle stop was justified by vehicle speeding), modified by 174 N.J. 351 (2002); State v. Halsey, 340 N.J. Super. 492, 497-98 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002) (upholding stop of vehicle after officer observed the driver tailgating, speeding and making improper lane changes); State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) (holding that vehicle stop was justified by the defendant's failure to signal a left turn). In light of our determination that Officers Chang and Stopko lawfully stopped defendant's vehicle because it was speeding, we need not address the judge's conclusion that the stop was based upon probable cause derived from the information supplied by the confidential information.
Having determined that the stop of defendant's vehicle was lawful, we turn to the question of whether the warrantless seizure of the gun from the interior of defendant's vehicle was lawful under either the "plain view" or "exigent circumstances" exceptions 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
Officers Chang and Stopko were legally in a position to view the handgun. The officers were entitled to retrieve the cocaine they had seen in the console once they stopped defendant's vehicle for speeding, and it was while they were retrieving the cocaine that they saw the handgun. Indeed, defendant does not challenge the officers' right to seize the cocaine, as he has not challenged that seizure on appeal. Because the officers were entitled to seize the cocaine, they were lawfully inside the vehicle at the time they observed the handgun. The first Bruzzese prong is satisfied.
We are likewise satisfied that the discovery of the handgun was inadvertent, thereby satisfying the second prong. "The purpose of the inadverten[ce] requirement is to insure 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) (citation omitted). "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, the evidence in the record supports the judge's finding that the discovery of the handgun was entirely inadvertent, as Officer Chang happened to see the handle of the handgun protruding from under the front passenger seat of the vehicle while he was seizing the cocaine that was wedged near the center console. He did not know in advance where the handgun was located, nor did he "intend beforehand to seize it." Id. at 479. For that reason, the seizure of the handgun was inadvertent, ibid., thereby satisfying the second prong of Bruzzese.
The third factor requires the judge to determine whether the officer had probable cause to associate the object with criminal activity. Bruzzese, supra, 94 N.J. at 236. Here, defendant's possession of cocaine, an illegal substance whose possession is prohibited by law, provided the officers with probable cause to believe the handgun was likely illegally possessed as well, thereby satisfying the third Bruzzese prong.
All three of the Bruzzese factors were satisfied. The judge properly relied on the plain view exception to the warrant requirement when she denied defendant's motion to suppress the handgun.
In reaching that conclusion, we reject defendant's contention that the plain view seizure was not inadvertent because the officers were "rummaging about" in the vehicle. Defendant's argument directly contradicts the judge's findings of fact, which are amply supported by the evidence in the record. The judge based her finding of inadvertent discovery on Officer Chang's testimony.
These findings involved a credibility determination that is entitled to our deference. Locurto, supra, 157 N.J. at 474. The trial court, at the suppression hearing, had an opportunity "to see the witness and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Elders, 192 N.J. 224, 244 (2007). We have been presented with no meritorious basis to reject the judge's finding that the handle of the gun was protruding from underneath the front seat. We reject defendant's invitation to supplant the judge's findings of fact with our own. Having considered defendant's arguments in light of the record, we are satisfied that the seizure of the handgun was justified under the plain view exception to the warrant requirement. The judge correctly denied defendant's motion to suppress.
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