On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-08-01130.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2013
Before Judges Reisner and Harris.
Defendant J.H. appeals his conviction -- following a guilty plea that was entered after the denial of his motion to suppress evidence -- for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a). We affirm.
We glean the following facts from the motion to suppress. In February 2008, Detective Sheryl Saldida and Detective Alex Scherer became involved in an investigation of eighteen-year-old J.H, after receiving information alleging that he had sexually assaulted a twelve-year-old girl. After taking statements from the victim and her mother, the police officers "decided to go and try and look for [J.H.]."
Just after midnight on February 17, 2008, the officers arrived at J.H.'s residence. They were met at the door of the bi-level house by the owner, A.R., who was J.H.'s stepfather. After identifying themselves as police officers and indicating the nature of their visit, A.R. explained that J.H. resided there, but he was not presently home. A.R. claimed not to know of J.H.'s whereabouts and denied awareness of where J.H.'s mother (A.R.'s estranged wife) resided. Eventually, A.R. invited the police officers inside the dwelling, indicating that if they did not believe him, they could look around for themselves. A.R. led the police officers to J.H.'s second-floor bedroom.
Once at the threshold to the bedroom, A.R. opened the unlocked door. Saldida looked inside and observed a room approximately eight feet wide by ten feet long containing "a box spring and mattress . . . on the floor, a small dresser, and a desk." A.R. and the officers then stepped inside with A.R. having "no concerns with entering the bedroom." Scherer immediately "brought [Saldida's] attention to the wastebasket that was located between the dresser and the desk in the bedroom." According to Saldida, "[Scherer] was literally on top of it because the bedroom is only 8-by-10 and three of us were in there, and when he called my attention to it, he was standing directly over it."
Saldida followed Scherer's suggestion and looked into the wastebasket. She immediately observed "what appeared to be used condoms." Based upon the victim's statement, Saldida understood that "[J.H.] used condoms during . . . sexual encounters." Accordingly, Saldida recognized that the used condoms were "immediately recognizable . . . as something of potential evidential value." She then called A.R.'s attention to the wastebasket, pointed to it and its contents, and "told [A.R.] that's what we're here for."
Scherer immediately produced a written consent to search form that was utilized by the police department.*fn2 Scherer read the form to A.R., indicating also that the consent to search, if granted, would result in the retrieval of the used condoms observed in the wastebasket. A.R. signed the consent to search form.
Following A.R.'s consent, Saldida contacted the Ocean County Sheriff's Department Criminalistics Investigation Unit, which sent a detective to the scene to retrieve the items in the wastebasket. Although not directly pertinent to the issues on appeal, Saldida testified that DNA analyses of the contents of the used condoms revealed J.H.'s and the victim's DNA "amongst one of the condoms."
On December 17, 2009, the motion judge issued an oral decision denying J.H.'s motion to suppress. After summarizing the testimonial evidence and parsing the applicable constitutional principles of law, the judge stated that he was "convinced that [A.R.] had common authority over the room and was therefore able to give a valid consent to search the room." The judge then analyzed whether the State had satisfied its burden of demonstrating the elements of the plain view exception to the requirement for a warrant pursuant to State v. Bogan, 200 N.J. 61 (2009), and State v. Bruzzese, 94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Ultimately the judge ...