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State of New Jersey v. Valgson R. Deolivera

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 20, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VALGSON R. DEOLIVERA, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-11-1950.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 29, 2011

Before Judges Espinosa and Kennedy.

Defendant Valgson DeOlivera pled guilty to fourth-degree possession of a false government document, N.J.S.A. 2C:21-2.1(d), pursuant to a plea agreement after his motion to suppress evidence was denied. In this appeal from his conviction, he argues that the trial court erred in denying his suppression motion. We agree and reverse.

The pertinent testimony presented at the evidentiary hearing can be summarized as follows:

On September 22, 2009, Officer John Geesey of the South River Police Department was on patrol when he was flagged down by a passing motorist who advised him that "some type of fight or dispute was going on, in the area of 188 Prospect Street." Geesey advised headquarters and proceeded to that address.

Officer Kevin Nielsen, who testified as a defense witness, responded to the address and arrived before Geesey. He saw a man, later identified as defendant, standing on the sidewalk and asked him if he had seen any type of fight or anything in the area. The man replied, "no." Nielsen then spoke to a woman at the address but she knew nothing about a fight. He waited for Geesey to arrive. Sergeant Migut also responded to the address.

Geesey testified that when he arrived, Edvania Pimenta was crying and upset. She said, through a translator, that her housemate had attacked her and grabbed her neck. According to Geesey, the translator told him, "She said, she [sic] pushed through the door, accused her of dishonoring her husband, and grabbed her by the neck." Geesey observed marks around the front of Pimenta's neck and "like a scratch on her back." She provided a description of what the suspect was wearing, which Nielsen stated matched the male on the sidewalk he had spoken to earlier.

Geesey testified that they started checking the house for the suspect because it was unknown whether he was still there. However, Nielsen testified that he realized the man he spoke to on the sidewalk matched the description given by Pimenta. Nielsen asked Geesey if he had seen him and told Geesey "the individual was no longer in the area."

Pimenta and her attacker each rented bedrooms in the house. She first showed the officers her room, where the attack occurred, and then showed Geesey the room that belonged to her attacker. The door was unlocked. Geesey took a look inside.

It was apparent the suspect was not in the small bedroom. Although Geesey knew that the suspect had left the scene, he entered the room because he saw a man's billfold or ID holder on the dresser. He removed a social security card and driver's license from the ID holder and showed the photograph to Pimenta, asking if that was the individual who attacked her. Geesey then seized the driver's license and social security card and left the billfold behind.

Geesey returned to his patrol car and broadcast a description of the suspect to headquarters and everyone on patrol on the radio. He testified that the description he broadcast was based upon information he received "from the victim and/or others, or information gleaned from the identification" taken from the ID holder. In addition, he had a description of what the suspect was wearing. He testified further that the only information he obtained from the ID holder was the name of the suspect, defendant Valgson DeOlivera.

Defendant was arrested approximately one mile away by East Brunswick police officers.

Geesey testified that he took the driver's license to assist in providing a description to be broadcast and also, because he "wanted to run the license number[,]" which "came back to a woman out of South Carolina."

The court questioned Geesey regarding his purpose in entering the room:

THE COURT: And upon seeing [the billfold], you went in for what purpose?

THE WITNESS: Because I felt it was a cohabitation type of thing. It was a domestic violence incident. So, I had to investigate. I had a woman with an injury, saying this person did it, that lived in the room right across from her. So, I felt I had to.

THE COURT: As part of the immediate investigatory process, you believed what? That it might have been evidence of a what? THE WITNESS: A crime. Of an identification.

THE COURT: Of an identification of a crime?

THE WITNESS: And I had to try to ID the suspect. I had a woman that was injured.

THE COURT: Am I correct, in my understanding, that the only thing you did is go in, open the billfold, take out the identification -- I don't want to say seized -- this identification, the Social Security card, and that license? Is that correct?

THE WITNESS: Right. That's all I seized. THE COURT: Upon the observation of those cards, was there anything that led you to believe that they were fraudulent? At least, when you initially looked at them?

THE WITNESS: Not until I ran the one from

South Carolina, and it came back to a woman.

THE COURT: The only reason you took them was for identification purposes?

THE WITNESS: Yes, sir.

THE COURT: As part of the immediate investigation at the crime scene?

THE WITNESS: Yes.

The motion judge found the testimony of the officers credible. He found that they arrived at the scene, where they came upon "an alleged victim, upset, crying." She said she had been involved "in an altercation of some type with the defendant. Was unsure of the name, the full name. But did know where he resided[.]" The officers confirmed that "there had been an incident, based on the objective viewing of marks on the neck of the victim[.]" The court viewed the question before it as whether the officers had an obligation "during the investigatory stage of this incident, to take the wallet, get a search warrant, . . . or to immediately go in and search . . . the wallet, to obtain the identification, for the purposes of this investigation." The court noted that defendant was aware the police were at the scene and investigating and concluded:

It's interesting to note, that they were not looking for the fruits of the crime; but rather for identification. The Court finds that, under the facts of this case, the immediate invasion of the billfold, the wallet, was appropriate. To put out an immediate, without delay, search for the person who is involved in the altercation. The warrant requirement, given these circumstances, is not required.

In our review, we accord deference to the motion judge's findings of fact, State v. Robinson, 200 N.J. 1, 15 (2009), but pay no deference to conclusions of law. State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006).

Warrantless searches or seizures are "presumptively unreasonable[.]" State v. Elders, 192 N.J. 224, 246 (2007). To overcome that presumption, the State bears the burden of proving by a preponderance of the evidence that the search or seizure was premised on probable cause and, further, that it fell within an established exception to the warrant requirement. State v. Johnson, 193 N.J. 528, 552 (2008); State v. Pineiro, 181 N.J. 13, 19-20 (2004).

The State argues that the search of defendant's wallet and seizure of the documents was justified by "exigent circumstances." We disagree.

"[T]he term 'exigent circumstances' is, by design, inexact. It is incapable of precise definition because, by its nature, the term takes on form and shape depending on the facts of any given case." State v. Cooke, 163 N.J. 657, 676 (2000). There are, however, factors to be considered in determining whether such circumstances exist, such as "the urgency of the situation, the time it will take to secure a warrant, the seriousness of the crime under investigation, and the threat that evidence will be destroyed or lost or that the physical well-being of people will be endangered unless immediate action is taken." State v. Johnson, supra, 193 N.J. at 552-53; see also State v. Deluca, 168 N.J. 626, 632-33 (2001).

A review of these factors here fails to show the existence of exigent circumstances. The "crime under investigation" here was the assault on Pimenta, not the possession of false documents. The testimony regarding her condition was that she was crying and upset and had some marks and a scratch. There was no evidence that she required any medical attention, not even a band-aid. Although the officers described the situation as possible domestic violence, the facts given to them did not indicate the existence of a relationship that would support a complaint for domestic violence, see N.J.S.A. 2C:25-19(d), or that the suspect had violated any order of the court. There was no evidence that he had a weapon with him when he left or had used one in the attack on Pimenta. Thus, the "seriousness of the offense under investigation" did not suggest any exigency. There was no evidence that he posed a threat to anyone in the community. Further, there was no danger that any evidence necessary to the prosecution of him for the assault was in danger of being destroyed if immediate action was not taken. The officers had a physical description of the suspect and his clothing that was confirmed by the observations Nielsen made himself. The victim knew where he lived and was able to identify him after his arrest. The information provided by Pimenta and corroborated by Neilsen regarding defendant's physical appearance, independent of his name, was sufficient to permit police officers to identify and arrest defendant. Thus, there was no urgency to securing his identification. Finally, there was no evidence as to whether there were time constraints that made it impracticable to secure a warrant before engaging in a warrantless search and seizure.

In short, while securing an identification of defendant was a legitimate goal in the investigative process, pursuit of that goal did not create exigent circumstances that excused the officers from obtaining a warrant. In light of this conclusion, we need not discuss whether there was probable cause for the search and seizure.

Reversed.

20120720

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