June 21, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ROBERT L. CARPENTER, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 20, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-12-2372.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Maven.
Following denial of his motion to suppress, defendant Robert Carpenter pled guilty, pursuant to a negotiated agreement with the State, to a one-count indictment charging him with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). In exchange for the guilty plea, the State agreed to dismiss the complaint-summons charging defendant with the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2, and to recommend a sentence of non-custodial probation. In accordance with this agreement, defendant was sentenced to a one-year probationary term. Defendant appeals the order denying his suppression motion, and we affirm.
According to the State's proofs adduced at the testimonial hearing, on August 30, 2010, Asbury Park Police Sergeant Jeffrey White, a thirteen-year veteran assigned to the "Street Crimes Unit", was on routine patrol in an unmarked police vehicle with Patrolman Francis Sangi. At around 7:00 p.m., they heard a dispatch over the radio concerning an anonymous caller's report that "there were subjects possibly smoking CDS in a white Cadillac on the 1200 block of Washington Avenue." They responded immediately to the scene, where they observed two individuals in a white Cadillac parked on the left-hand side of the road. The officers exited their vehicle and approached the Cadillac on foot to speak to the occupants.
While standing next to the driver's side of the Cadillac, Sergeant White looked through the window and observed defendant, who was behind the wheel, and Sharyl Dixon, who was in the passenger seat. At the same time, he also noticed a "glass tube with copper screening" lying on the seat between defendant and Dixon, which he immediately recognized as a "crack pipe, " "used to ingest CDS." Based on his observation, Sergeant White decided to arrest both defendant and Dixon for possession of drug paraphernalia. At that point, Sergeant White asked defendant to exit the vehicle and instructed Officer Sangi to remove Dixon from the passenger side.
As defendant opened the door and began to exit the Cadillac, Sergeant White observed a small piece of crack cocaine sitting on what he described as a "little hump" or "little ledge" inside the vehicle between the driver's side seat and door. Sergeant White then placed defendant under arrest and walked him to the rear of the car where Patrolman Sangi had Dixon secured.
With defendant and Dixon under the watch of Patrolman Sangi, Sergeant White walked back to the Cadillac to recover the contraband he had openly seen. As he reached inside the vehicle to retrieve the crack pipe, Sergeant White observed a "small clear zip-lock bag with a white residue inside it" sitting on the front seat near the crack pipe. Based on his training and experience, Sergeant White knew that small plastic bags were commonly used in "[t]he packaging of crack cocaine" and, therefore, suspected the white residue inside the bag to be cocaine. After Sergeant White secured all three items, defendant and Dixon were transported to police headquarters.
Dixon offered a contrary account, denying there were any drugs or drug paraphernalia in the car. At the close of evidence, the judge, crediting the testimony of Sergeant White and Patrolman Sangi, denied defendant's suppression motion, concluding that the officers' seizure of the evidence from the vehicle was justified under the plain view exception to the warrant requirement. The court reasoned:
Here the police officers, in my mind, did exactly what they were supposed to do. They received an anonymous tip, not themselves, it was called into the police headquarters. They were in the area doing their rounds essentially as part of the street crimes unit. They saw a vehicle that matched exactly the vehicle that was called in. They saw two occupants in the vehicle located in the street address of 1200 Washington Avenue.
When they approached the vehicle, again, the concept at that point, with things moving that quickly, I think initially once you have the anonymous tip and you have corroboration, clearly the officers are permitted to engage in at least a field inquiry, if not an investigative stop at that point. But again, those concepts are sort of blurred in the fast-acting nature in which this occurred.
As the officer was about to ask a question to [defendant], his testimony I find to be credible, saw the crack pipe in plain view.
So he was lawfully in the viewing area because, again, he had the -- based on the anonymous tip had the duty to investigate that tip, again, either by a field inquiry, which then turned into an investigative stop once in plain view these items were found. The evidence was discovered inadvertently. He was just going to ask questions. And three, was immediately apparent, again, to the officer that the items in plain view were evidence of contraband.
So I find that the plain view exception was met thereafter again. It can turn into an investigative stop and right then into a lawful arrest of both defendants.
So based on all of that, I clearly find that the testimony of the officers was credible. I don't find Miss Dixon's testimony to be credible.
On appeal, defendant contends:
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS ENTRY INTO THE VEHICLE WITHOUT EXIGENT CIRCUMSTANCES.
In reviewing a motion to suppress, we 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, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted); State v. Locurto, 157 N.J. 463, 474 (1999); State v. Slockbower, 79 N.J. 1, 13 (1979). By the same token, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J.Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
A search without a warrant is presumptively invalid unless it "falls within one of the few well-delineated exceptions to the warrant requirement." Elders, supra, 192 N.J. at 246 (citations and internal quotation marks omitted). Here, the motion judge found that Sergeant White's seizure of the contraband from defendant's vehicle was valid under the plain view exception to the search warrant requirement. Pursuant to that exception, three elements must be satisfied:
First, the police officer must be lawfully in the viewing area. Second, the officer has to discover the evidence "inadvertently, " meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be "immediately apparent" to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure. [State v. Bruzzese, 94 N.J. 210, 236 (1983) (citations omitted), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984).]
Under the third requirement, "in order to seize evidence in plain view a police officer must have probable cause to associate the [item] with criminal activity." Id . at 237 (citation and internal quotation marks omitted).
It is apparent from the motion court's findings that all three requirements of the plain view exception are satisfied here. First, Officers White and Sangi were lawfully standing outside defendant's vehicle. On this score, the initial approach and encounter with defendant, who was seated in the parked car, needs no constitutional justification. State v. Maryland, 167 N.J. 471, 483 (2001); State v. Sirianni, 347 N.J.Super. 382, 387-88 (App. Div.), certif. denied, 172 N.J. 178 (2002). Being lawfully present outside the Cadillac, without physically intruding into the vehicle, Sergeant White was in a position to look inside and observe in plain view suspected drug paraphernalia lying on the seat between defendant and Dixon. Based on his training and on-the-job experience as a member of the Asbury Park Police Department's Street Crimes Unit, Sergeant White immediately recognized that the glass tube, which he inadvertently discovered sitting on the car seat in open view, was a crack pipe. Of course, once he observed the crack pipe, Sergeant White had probable cause to arrest both defendant and Dixon for possession of drug paraphernalia and was, therefore, justified in ordering both occupants to exit the vehicle to effectuate the arrest. State v. Dangerfield, 171 N.J. 446, 460 (2002); State v. Tucker, 136 N.J. 158, 167 (1994); State v. Smith, 134 N.J. 599, 620 (1994).
Consequently, Sergeant White was also lawfully in the viewing area when, as defendant opened the door and exited the vehicle, the officer observed a small piece of crack cocaine in the "door jamb area" between the driver's side seat and door. Here too, his discovery of the crack cocaine was inadvertent and, based on his training and experience, it was immediately apparent to Sergeant White that the item was evidence of a crime. Therefore, once defendant and his passenger were properly removed from the vehicle, police entry into the vehicle to seize the crack pipe and cocaine was justified under the plain view doctrine. State v. Mann, 203 N.J. 328, 340-41 (2010) (upholding as lawful officer's entry into parked vehicle and seizure of drugs after officer observed drugs in plain view through open window while standing next to vehicle); State v. Mai, 202 N.J. 12, 25-26 (2010) (holding officer's entry into vehicle to seize handgun was permissible under plain view exception where officer made plain view observation of handgun through open door of vehicle subject to valid investigatory stop after occupants had been lawfully removed)
For the very same reason Sergeant White's seizure of the small plastic bag containing suspected cocaine residue which he inadvertently came upon while reaching into the vehicle to retrieve the crack pipe and which he recognized based on his training and experience to be a controlled dangerous substance was also justified under the plain view doctrine
In sum Sergeant White was lawfully in the viewing area when he made his plain view observations of each of the challenged evidential items which he discovered inadvertently and immediately recognized as contraband associated with criminal activity We therefore conclude as did the motion judge that the plain view exception to the warrant requirement applies and that Sergeant White's seizure of the items from defendant's vehicle was lawful.