June 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGEL CREMADELLY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 08-10-2563 and 08-12-2954.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 16, 2012
Before Judges Lihotz, Waugh, and St. John.
Defendant Angel Cremadelly appeals from his conviction, following a guilty plea, for second-degree possession of a weapon by a convicted person, contrary to N.J.S.A. 2C:39-7, and fourth-degree violation of community supervision for life (CSL),*fn1 contrary to N.J.S.A. 2C:43-6.4. We affirm.
We discern the following facts and procedural history from the record on appeal.
On August 6, 2008, Atlantic City Police received a report that Cremadelly had threatened to kill his girlfriend and that he had been seen with a handgun at her residence. Several police officers, including Detective Sergeant Angelo Maimone, went to Cremadelly's residence. When they arrived, they placed Cremadelly under arrest for making terroristic threats. He was handcuffed and seated on the front porch of the house. At the time of his arrest, Cremadelly was wearing only a t-shirt and underpants.
Senior Parole Officer Joseph Martin and Assistant District Parole Supervisor James Stevens, who were also looking for Cremadelly because of the alleged threats and weapon possession, arrived at Cremadelly's residence soon after the police had placed him under arrest. Martin heard Cremadelly, who was still seated on the porch in his underwear, asking for his clothes.
Martin and Stevens had come to Cremadelly's residence to search his room for weapons, alcohol, and other contraband, possession of which violated the special conditions imposed on CSL parolees, such as Cremadelly.*fn2 Martin entered Cremadelly's room to conduct the search. Maimone accompanied him to obtain clothes for Cremadelly. Maimone noticed a pair of pants on a chair. When he picked them up, a handgun fell to the floor. Maimone seized the gun. Martin continued to search for additional contraband.
On October 30, 2008, Cremadelly was indicted and charged with third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(a) (counts one and two); third-degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(a) (count three); fourth-degree possession of prohibited devices (hollow point bullets), contrary to N.J.S.A. 2C:39-3(f) (count four); and possession of a weapon by a convicted person, contrary to N.J.S.A. 2C:39-7 (count five). A second indictment, returned on December 11, 2008, charged Cremadelly with a single count of fourth-degree violation of his CSL, contrary to N.J.S.A. 2C:43-6.4.
Cremadelly filed a motion to suppress the evidence seized on August 6, 2008. Following a two-day hearing in July 2009, the trial judge denied the motion in a letter opinion dated August 3, 2009. The judge found the State's witnesses to be credible. He found that Cremadelly had "selective memory of the events of that day" and characterized his testimony as "incredible." According to the judge's findings, Cremadelly's testimony "was a diametrically opposed version of the events and did not have [a] ring of truth," "was disjointed and irrational," and "lack[ed] any credibility."
Based upon his factual findings, the judge held that "[i]t is clear that parole was conducting a search pursuant to the terms of the CSL and was working in conjunction with police to carry out that function." He also held that, because the gun would inevitably have been discovered by the parole officer during his search, it was of no significance that Maimone discovered it first and without a warrant. The judge concluded that the "State ha[d] shown by clear and convincing evidence that the parole officers exercised their authority to search and the admission of the weapon into evidence [would] be valid under the inevitable discovery exception to the exclusionary rule."
Following the denial of the motion to suppress, Cremadelly accepted a plea offer under which he pled guilty to possession of a weapon by a convicted person and violation of CSL. The judge sentenced Cremadelly, in accordance with the plea offer, to an aggregate sentence of incarceration for five years, with no eligibility for parole. The remaining counts were dismissed at sentencing. This appeal followed.
Cremadelly raises the following arguments on appeal:
POINT I: WHILE A POLICE OFFICER CAN ASSIST A PAROLE OFFICER IN PERFORMING A SEARCH, THE OFFICER MUST ACT IN THAT ROLE AND NOT AS AN INDEPENDENT AGENT.
POINT II: THE STATE FAILED TO MEET ITS BURDEN OF PROVING THAT P.O. MARTIN WAS ACTING WITHIN THE BOUNDAR[IES] OF N.J.A.C. 10A:72-6.3 AND THE EVIDENCE MUST BE SUPPRESSED.
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.
Cremadelly's arrest was premised on allegations that he was armed and had threatened his girlfriend. There was credible testimony from both Maimone and Martin that, following his arrest, Cremadelly was seated on the front porch wearing only his underwear and that he was asking for his clothes. Both witnesses also testified that Maimone went into Cremadelly's room primarily to get his clothing, while Martin went there primarily to conduct the search. Finally, both witnesses testified that, shortly after entering the room, Maimone picked up the pants from the chair and the gun fell out of them onto the floor.
We conclude that Maimone's action in retrieving the clothes himself, rather than allowing Cremadelly to get them under supervision, was objectively reasonable under the circumstances. Because no gun was found on Cremadelly at the time of his arrest, there was ample reason to believe that the gun was still in his room. Allowing Cremadelly to pick through the contents of the room would have put the police officers at significant risk. In contrast, there is nothing in the record to suggest that Maimone did anything other than pick up the pants and then the gun after it fell to the floor. See State v. Bruzzese, 94 N.J. 210, 232 (1983) ("[W]e balance, as we must in all search and seizure cases, the interests of public safety, in this instance the protection of policemen, against the intrusion upon the privacy of and inconvenience to an individual." (citations omitted)), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
In addition, as the trial judge determined, Maimone was accompanying Martin, who had the legal right to search for contraband without a warrant. See State v. Maples, 346 N.J. Super. 408, 412 (App. Div. 2002). N.J.A.C. 10A:72-6.3 provides, in relevant part, as follows:
(a) A parole officer may conduct a search of a parolee's residence when:
1. There is a reasonable articulable suspicion to believe that evidence of a violation of a condition of parole would be found in the residence or contraband which includes any item that the parolee cannot possess under the conditions of parole is located in the residence; and
2. An Assistant District Parole Supervisor or a higher level supervisor provides prior approval for the search or circumstances exist which require immediate action without prior approval from a supervisor.
There was clearly "a reasonable articulable suspicion" that evidence of a parole violation or contraband would be found in Cremadelly's residence. Stevens, who was an Assistant District Parole Supervisor, was at the scene at the time Martin made the search. Martin, who traveled to the scene of the arrest with Stevens, testified that "we had planned and intended to search the residence." (Emphasis added.)
Based upon his factual findings, there was no basis for the judge to conclude that the Atlantic City police used the parole officers as their "cat's paw." See United States v. Cardona, 903 F.2d 60, 65 (1st Cir. 1990) ("[A]llowing police officers to act in an agentival capacity is not an open invitation to gamesmanship through which law enforcement personnel can circumvent the rigors of the Fourth Amendment. The law will not allow a parole officer to serve as a cat's paw for the police." (citations omitted)), cert. denied, 498 U.S. 1049, 111 S. Ct. 758, 112 L. Ed. 2d 778 (1991). In United States v. Scott, 566
F.3d 242, 246 (1st Cir. 2009), the First Circuit stated cooperation [between law enforcement and parole officers] raises the possibility of subterfuge designed to evade the Fourth Amendment, . . . [and] the police may not use parole officers "as a cat's paw." [Cardona, supra, 903 F.2d at 65.] However, where "police officers function merely as instruments of the parole system, not as law enforcers per se," . . . "they should be accorded the same privileges available to other operatives in the system." Id. at 69.
In United States v. Hallman, 365 F.2d 289, 292 (3d Cir. 1966), the Third Circuit cautioned that parole officers should not "serve as a shield against what was plainly the action of the arresting officers to effect an illegal search," but clarified that it did not "rule so as to prohibit proper cooperation and assistance of law enforcement and administrative officers among themselves." As the First Circuit has held, "police officers and parole officers are fungible when the former serve as mere implementers of decisions already made by the latter." Cardona, supra, 903 F.2d at 66 (citations omitted). To the extent State v. Bollinger, 169 N.J. Super. 553, 564 (Law Div. 1979), holds to the contrary, we decline to follow it.
Even if we were to conclude that Maimone should not have accompanied Martin during the search, the "inevitable discovery rule" is an exception to the exclusionary rule that permits evidence to be admitted in a criminal case, even if it was obtained unlawfully, when the State can show that discovery of the evidence by lawful means was inevitable. State v. Holland, 176 N.J. 344, 361-62 (2003). The rationale behind the rule, which places the police in the same position that they would have been in had no police misconduct occurred, is that "the deterrent purposes of the exclusionary rule are not served by excluding evidence that, but for the misconduct, the police inevitably would have discovered." State v. Sugar, 100 N.J. 214, 237 (1985). Indeed, "[i]f the evidence would have been obtained lawfully and properly without the misconduct, exclusion of the evidence would put the prosecution in a worse position than if no illegality had transpired." Ibid.
In order to invoke the inevitable discovery doctrine, the State must show that:
(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means. [Id. at 238.]
In New Jersey, the State must show inevitable discovery by clear and convincing evidence. Id. at 240. The motion judge's factual findings were specifically made using that standard.
Consequently, we affirm the denial of the motion to suppress and the resulting conviction following Cremadelly's guilty plea.