August 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CHARLES A. LEWIS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 09-05-0381.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).
Before Judges Lihotz and Ostrer.
Defendant Charles A. Lewis appeals from the denial of his motion to suppress drug evidence found by police as they executed a protective search warrant contained in a temporary restraining order issued pursuant to the New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. In a single point, he argues on appeal:
THE TRIAL COURT ERRED IN FINDING THAT THE WARRANTLESS SEIZURE OF THE DRUGS WAS JUSTIFIED UNDER THE PLAIN VIEW EXCEPTION BECAUSE THE RECORD FAILED TO ESTABLISH THAT IT WAS IMMEDIATELY APPARENT TO OFFICER SUTER THAT THE BAGGY CONTAINED CONTRABAND.
We note no testimony was presented in this matter. Rather, for the purpose of the suppression motion, the facts presented in the report of Officer Tim Suter of the Paulsboro Police Department regarding the incident were not disputed.
Paulsboro Police Sergeant Gilcrest, Officer Vasta, and Officer Suter went to defendant's residence to serve a temporary restraining order, entered pursuant to the PDVA. The order contained authorization for the police serving the restraining order to conduct a search for weapons, pursuant to N.J.S.A. 2C:25-28j, based on the victim's ex parte testimony before the Family Part, stating defendant had threatened to shoot her and possessed a gun which he kept in a blue tote in his bedroom in his grandmother's residence, or, alternatively, buried in the backyard.
The police arrived at the designated residence and defendant's sister answered the door and retrieved defendant's aunt, both of whom resided in the house. The officers were granted entry by the women. After explaining they were there to serve defendant, the women stated he was not at home and no one else was in the home. The officers heard movement and other noises from the second floor. Again they asked the women if anyone else was in the home, and both repeated, "no." In an effort to secure their safety, as well as the safety of the occupants, Officers Vasta and Suter went upstairs to investigate the noises. There they found defendant sitting on his bed, wearing a heavy coat and hat, and looking "extremely nervous." A blue tote, as described in the warrant, sat on the floor near him. After escorting defendant downstairs, Officers Suter and Gilcrest returned to the bedroom to begin the search. The blue tote was padlocked in the middle, but the latches on both sides of the box were open. Officer Suter lifted one side and "immediately saw a silver with black handle revolver[, ]" along with a "clear baggy which contained numerous smaller yellow bags and other clear bags tied in bundles."
Hearing a commotion downstairs, Officer Suter removed the gun from the blue tote and secured it in his waistband. He descended the stairs "[b]elieving there was a problem[.]" When the situation was resolved, Officer Suter returned to the upstairs bedroom to retrieve the clear and yellow bags he saw in the tote, later identified as eighty bags of crack cocaine.
Defendant was charged by a Gloucester County Grand Jury in Indictment Number 09-05-0381, with second-degree possession of a weapon while committing a CDS crime, N.J.S.A. 2C:39-4.1a; second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(2); third-degree possession of a controlled dangerous substance with intent to distribute on or within 1000 feet of school property, N.J.S.A. 2C:35-7; third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); fourth-degree unlawful possession of hollow nose bullets, N.J.S.A. 2C:39-3f(1); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. He moved to suppress the gun and drug evidence.
The judge suppressed the gun; however, she denied suppression of the narcotics, concluding the officers found the evidence in plain view. Thereafter, pursuant to a negotiated agreement, defendant pled guilty to and was convicted of second-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5b(2), and the state dismissed the remaining charges. The court imposed a ten-year state prison sentence with a thirty-nine-month period of parole ineligibility. Defendant appeals from the denial of his motion to suppress, arguing the judge erred in its finding the evidence, seized without a warrant, was in plain view.
"[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. Robinson, 200 N.J. 1, 15 (2009) (internal quotation marks and citations omitted). However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010) (internal citations omitted). "When a question of law is at stake, the appellate court must apply the law as it understands it." Ibid. (citations omitted). We defer to the trial court's findings that are "substantially influenced [by the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 336-37 (internal quotation marks and citations omitted). We are "not permitted to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (internal quotation marks and citations omitted). We reverse only when we determine the trial court's findings were so clearly mistaken that the interests of justice demand intervention and correction. State v. Elders, 192 N.J. 224, 244 (2007) (internal quotation marks and citations omitted). However, we afford no deference to the trial court's legal determinations, which we review de novo. State v. Harris, 211 N.J. 566, 578-79 (2012) (citing State v. Handy, 206 N.J. 39, 45 (2011) (citations omitted)).
It must also be noted "[t]he primary governmental interest at stake" advanced by a search warrant issued pursuant to N.J.S.A. 2C:25-28j,  is "to further the legislative intent to provide the victim of domestic violence with the maximum protection available under the law." State v. Johnson, 352 N.J.Super. 15, 37 (App. Div. 2002), overruled in part by State v. Dispoto, 189 N.J. 108, 121 n.3 (2007). "[A]ny search authorized by warrant, including one issued pursuant to the [PDVA], must pass constitutional scrutiny." Id. at 36.
Both the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution prohibit warrantless searches and seizures, absent a demonstration of the applicability of one of the well-delineated exceptions to the warrant requirement. State v. Wilson, 178 N.J. 7, 12 (2003) (citation omitted). "A chief goal of both the federal constitution and our state constitution is to protect individuals against unreasonable intrusions into the home." Harris, supra, 211 N.J. at 581 (citing State v. Cassidy, 179 N.J. 150, 159-60 (2004)). Evidence seized illegally is suppressed. Handy, supra, 206 N.J. at 45-46. Further, the State bears the burden of proving the search was constitutional. State v. Edmonds, 211 N.J. 117, 128 (2012) (citing Wilson, supra, 178 N.J. at 12-13).
One delineated exception to the warrant requirement is the plain view exception, which requires three prongs be met: (1) the officer must be lawfully in the viewing area, (2) the evidence must be discovered inadvertently, and (3) it must be immediately apparent to the officer that the items in plain view were evidence of a crime or are contraband. 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). The three plain view requirements handed down by the Supreme Court "'comport with [the] overall constitutional standard of reasonableness.'" State v. Johnson, 171 N.J. 192, 207 (2002) (quoting Bruzzese, supra, 94 N.J. at 238).
Here, defendant conceded the first two elements of the plain view exception had been satisfied. He challenges the sufficiency of the evidence supporting satisfaction of the third element. He maintains the warrant was limited to a search for weapons and it was not apparent the smaller yellow baggies contained in the visible clear bag contained contraband. Arguing the trial judge failed to make specific findings on the State's evidence supporting each element of the plain view doctrine, defendant concludes Officer Suter's removal of the weapon completed the authorized search, making his subsequent reopening of the tote to seize the baggies constitutionally impermissible. We disagree.
The third prong of the plain view exception requires proof it is "immediately apparent" to the officers the items in plain view were evidence of a crime or contraband. Bruzzese, supra, 94 N.J. at 236 (internal quotation marks and citations omitted). To satisfy this prong, police need only show "[a] practical, non-technical probability that incriminating evidence is involved." Id. at 237 (internal quotation marks and citations omitted). The Court has held the "immediately apparent" requirement does not require an "unduly high degree of certainty as to the incriminating character of the evidence[, ]" Johnson, supra, 171 N.J. at 207, and "looks to what the police officer reasonably knew at the time of the seizure." Bruzzese, supra, 94 N.J. at 237. Further, "[r]eviewing court[s] must give due weight to factual inferences drawn by . . . local law enforcement officers." Johnson, supra, 171 N.J. at 219 (internal quotation marks and citations omitted).
In Johnson, police observed the defendant place "a light colored object" in a hole beside the porch of a multi-family building containing his residence. Id. at 204. After a detailed review of the facts, the Court held:
When the totality of the circumstances, including the facts that were known to [the officer] and the reasonable inferences he was permitted to draw from them in light of his experience and training, are weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement, probable cause existed when [the officer] observed the clear plastic bag in the hole. Once he seized the clear plastic bag, and without opening it, he knew for sure that he had seized contraband. The outward appearance of the clear plastic bag gave the officer a degree of certainty that was functionally equivalent to the plain view of crack-cocaine itself. . . . The totality of the circumstances here warrant a man of reasonable caution in the belief that [the content of the clear plastic bag] may be contraband . . . [and the constitution] does not demand any showing that such belief be correct or more likely true than false.
Applying these principles to the facts at hand, we find the motion judge correctly concluded the plain view exception to the warrant requirement was proved. Her determination implicitly relied upon the officer's training and experience in immediately recognizing the clear baggie contained smaller yellow bags likely to be illicit narcotics, as they were kept in a locked tote together with a weapon.
The crack cocaine in this case was not discovered as the result of a generalized exploratory search of defendant's room, but was observed when the police conducted the authorized search for the silver-handled weapon kept in the blue tote. Officer Suter removed the gun and before he could remove the contraband, his attention was required downstairs. This break does not diminish his recognition that the small yellow baggies contained crack cocaine; nor does it preclude application of the plain view doctrine. The seizure of that drug evidence readily visible when searching the blue tote for the gun was proper, and the break between the removal of the gun and the illicit narcotics caused by the downstairs commotion did not subject the narcotics contraband to a further reasonable expectation of privacy, necessitating a warrant. Consequently, we affirm the denial of defendant's motion to suppress the crack cocaine.