June 18, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DAVID VILLA, a/k/a DAVID VILA, a/k/a DAVID MELENDEZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2012
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-08-1578.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).
Before Judges Lihotz and Ostrer.
Following denial of his motion to suppress evidence seized from a warrantless search of a sealed cardboard box in a shopping bag, defendant David Villa entered a plea of guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39- 5b. He also entered a plea to third-degree burglary, N.J.S.A. 2C:18-2. Pursuant to his plea agreement, the court sentenced defendant to seven years, with three years of parole ineligibility, on the firearms offense, and three years flat on the burglary, to be served concurrently. Defendant now appeals from the denial of his suppression motion, and challenges his aggregate sentence as manifestly excessive. Having reviewed these arguments in light of the facts and applicable law, we affirm.
We defer to the trial court's factual findings on a motion to suppress. State v. Elders, 192 N.J. 224, 243 (2007) (citation and quotation omitted). However, in this case the facts are undisputed. Defendant stipulated to the version of events set forth in an investigating officer's report. Therefore, we exercise plenary review of the trial court's application of the law to the facts. State v. Cryan, 320 N.J.Super. 325, 328 (App. Div. 1999).
According to Asbury Park Police Lieutenant David DeSane's investigative report, a Neptune City police detective informed DeSane on April 14, 2010, that he had just signed an arrest warrant for defendant on the burglary and other charges. DeSane was familiar with defendant and agreed to try to locate him.
At about 3:00 p.m., while on vehicular patrol with Sergeant Brian Townsend and another Asbury Park police officer, DeSane observed defendant standing on the corner of Third Avenue and Main Street. DeSane then described Villa's arrest and the seizure of the handgun:
Villa held a plastic[, ] white and blue "Finish Line" bag in his right hand. . . . I exited the vehicle and called to Villa by name as he reached the curb. Villa stopped and turned as I reached him. I advised Villa of the warrant for his arrest, removed the bag from his hand and placed it on the ground. I handcuffed Villa and called for a transport car.
Sgt. Townsend picked up the plastic bag and removed a blue/green microwave popcorn box (Act II, Fat-Free Butter) which was taped shut with silver Duct Tape at one end. Inside the box Sgt. Townsend located a defaced 10 mm Glock, Model 20, semiautomatic handgun wrapped in a white t-shirt and 6 white rubber gloves. The handgun contained 9 mm ammunition (4 hollowpoint and 3 ball ammo). The weapon was turned over to me at the scene and seized as evidence.
Judge Jamie S. Perri denied the motion to suppress, relying principally on State v. Oyenusi, 387 N.J.Super. 146 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007), which we shall discuss at greater length below. This appeal followed.
Defendant presents the following points for our review:
THE TRIAL COURT ERRED IN DENYING MR. VILLA'S MOTION TO SUPPRESS EVIDENCE.
THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE AND IMPROPER SENTENCE ON MR. VILLA (NOT RAISED BELOW).
Warrantless searches are presumptively unlawful. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973). Consequently, 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). One such exception allows a search incident to arrest. State v. Minitee, 210 N.J. 307, 318 (2012); State v. Pena-Flores, 198 N.J. 6, 19 (2009). The State argues that the search of defendant's shopping bag, and the sealed box, was authorized as incident to arrest. We agree, substantially for the reasons articulated by Judge Perri.
We reviewed principles governing a search incident to arrest in Oyenusi, supra. The police in that case investigated the sale of stolen prescription drugs through pharmacies. 387 N.J.Super. at 151. Pursuant to an arrest warrant, police arrested one of the co-defendants, Babatunde Oyenusi (Babatunde)outside his residence. Ibid. As police approached, Babatunde was carrying two white plastic bags. Ibid. The arresting officers took Babatunde's bags, handcuffed Babatunde, and "then looked inside the bags, which were not sealed or otherwise secured." Ibid. The search occurred on the street, contemporaneously with the arrest. Id. at 151-52. We upheld the search as incident to arrest.
In applying the search-incident-to-arrest exception to non-automobile searches, we concluded that our Court has not interpreted the State Constitution to limit searches more strictly than the Fourth Amendment. Id. at 157-58; see also State v. Dangerfield, 171 N.J. 446, 462 (2002) ("Generally, we have not afforded greater protection regarding the scope of a search incident to a lawful arrest under our State Constitution than that provided in Chimel's interpretation of the Fourth Amendment.").
The search-incident-to-arrest exception permits the police to search the arrestee's person and the area within the arrestee's immediate control. Oyenusi, supra, 387 N.J.Super. at 153 (citing Chimel, supra, 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694). The purpose of a search incident to arrest is "(1) to protect the arresting officer from any potential danger and (2) to prevent the destruction or concealment of evidence." Dangerfield, supra, 171 N.J. at 461 (citing Chimel, supra, 395 U.S. at 762-63, 89 S.Ct. at 2040, 23 L.Ed.2d at 693-94); Oyenusi, supra, 387 N.J.Super. at 154.
Nonetheless, the search-incident-to-arrest exception permits police to seize and search a container in an arrestee's possession, even after the arrestee is restrained and, as a practical matter, unable to reach, conceal or destroy the container's contents. "[T]he fact that the police seize a container in the possession of an arrestee at the time of the arrest, thereby depriving the arrestee of access, does not mean that a warrant must be obtained before the container can be opened and examined." Oyenusi, supra, 387 N.J.Super. at 155.
We noted that extending the exception to such situations was based on pragmatic considerations. Although "'the warrant exception is well grounded on the existence of exigent risks attending arrest, '" it would be impractical to require police to "'reorder the sequence of their conduct during arrest simply to satisfy an artificial rule that would link the validity of the search to the duration of the risks.'" Id. at 156 (quoting United States v. Nelson, 102 F.3d 1344, 1347 (4th Cir. 1996), cert. denied, 520 U.S. 1203, 117 S.Ct. 1567, 137 L.Ed.2d 713 (1997)).
However, the search must generally be conducted contemporaneously with the arrest, and in proximity to the arrestee. "The only limitation upon a search of an arrestee's person and the area within his immediate control is that the search may not be 'remote in time or place from the arrest[.]'" Oyenusi, supra, 387 N.J.Super. at 154 (quoting United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538, 550-51 (1977)). The contemporaneity requirement is "ordinarily satisfied if the search of the arrestee and a container in his or her possession is made at the location of the arrest while the arrestee is still on the scene." Id. at 155.
Applying these principles, we conclude, as did Judge Perri, that the search of the duct-taped popcorn box was valid. Implicit in DeSane's report, the search was conducted on the scene, near defendant, and contemporaneously with his arrest. It is of no moment that this case involves two containers — a popcorn box within a shopping bag — and Oyenusi involved only one container — a shopping bag. The power to conduct a search incident to arrest extends to containers. Oyenusi, supra, at 155.
Nor does our decision in State v. Bradley, 291 N.J.Super. 501 (App. Div. 1996) compel a different result, as defendant contends. We recognized in that case that a search incident to arrest "includes the power to search a container found in the suspect's possession at the time of arrest." Id. at 510. However, we held invalid the search of the defendant's luggage because the search was remote in time and place from the arrest. Id. at 515. Police searched the defendant's locked luggage twenty-five minutes after he was initially detained by casino security personnel, and ten minutes after police effectuated an arrest. The police also conducted the search two floors above where the defendant was detained. "The search clearly was not part 'of a single transaction, as connected units of an integrated incident[.]'" Ibid. (quoting State v. Doyle, 42 N.J. 334, 343 (1964)).
We do not read Bradley, in the non-automobile context, to require the State to show an exigency or continuing danger to justify a search, incident to arrest, of a container that the defendant personally possessed before being restrained. As we noted in Oyenusi, supra, 387 N.J.Super. at 155, the search may be valid even after a defendant is arrested, presumably restrained, and, practically speaking, unable to exploit the items that were in his or her possession.
Defendant's argument that his sentence was excessive lacks sufficient merit to warrant extensive discussion in a written opinion. See R. 2:11-3e(2). Defendant received precisely the sentence he bargained for in his plea agreement. In finding aggravating factors three, six and nine, N.J.S.A. 2C:44-1a(3), (6), and (9) — defendant posed a risk of reoffending; the extent of his prior criminal record and the seriousness of his offenses; and the need to deter — Judge Perri appropriately relied on defendant's extensive juvenile record, significant adult criminal record, poor performance on probation and parole, his reoffending despite prior sanctions, and his admission that he supported himself by selling drugs.
The court also appropriately rejected defendant's argument that mitigating factors one and two applied. Cf. N.J.S.A. 2C:44-1b(1) ("defendant's conduct neither caused nor threatened serious harm"), -1b(2) ("defendant did not contemplate that his conduct would cause or threaten serious harm"). In sum, we are satisfied that Judge Perri's findings of aggravating and mitigating factors were supported by the record, the sentence complied with the sentencing guidelines of the Code of Criminal Justice, and the sentence was not manifestly excessive, nor a mistaken exercise of discretion. See State v. Ghertler, 114 N.J. 383, 387-88 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).