Opinion
DOCKET NO. A-2757-11T1
05-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. JOB B. JACKSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Lihotz.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-08-2183.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Job B. Jackson appeals the denial of his motion to suppress evidence seized after he discarded the evidence from a second-floor residence. He also challenges opinion testimony elicited during trial from the officer who retrieved the evidence, and the sentence the court imposed following his conviction. We remand for correction of the judgment of conviction on but otherwise affirm in all respects.
A grand jury indicted defendant on charges of: third-degree controlled dangerous substance (CDS) possession, N.J.S.A. 2C:35-10a(1) (Count One), third-degree CDS possession with intent to distribute, N.J.S.A. 2C:35-5a(1)(Count Two); third-degree CDS possession with intent to distribute within a thousand feet of a school, N.J.S.A. 2C:35-7 (Count Three); third-degree conspiracy to possess CDS with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1); b(3)(Count Four); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2)(Count Five). Prior to trial, defendant moved to suppress evidence recovered at the time of his apprehension. Two witnesses, Troopers Louis Locchetto and Brett Munch, testified. The testimony revealed that on June 9, 2010, Troopers Locchetto and Jason Dare were assigned to a sneak-and-peak street operation in the area of Fourth and Chestnut in Camden. According to Trooper Locchetto, a sneak-and-peak operation usually involved two troopers going to an undisclosed location in a known narcotics area to conduct surveillance of narcotics sellers and buyers.
Around 5:10 p.m. that day, Trooper Locchetto observed a female, Aracelis Torres, looking out an open window of a second- story building "yerping-up" passersby and vehicles. He defined "yerping" as terminology narcotics dealers use in order to have buyers come to their location. He then observed two separate incidents of persons coming to that building, knocking on the door and being met by an individual, later identified as defendant. In both instances, he observed defendant step outside, engage in a brief conversation with the individual who had knocked on the door, and that individual hand defendant currency. Defendant, in turn, placed the currency in his left pants pocket and then retrieved a pill bottle from which he removed small items and placed them in the individual's hand. Although he could not see the items, based upon his training and experience, Trooper Locchetto believed he had witnessed narcotics transactions, with Torres acting as "a director, directing buyers to the residence" and defendant "acting as a dealer. He was supplying drugs to the buyers."
Trooper Locchetto contacted an arrest team and provided descriptions of defendant and Torres. Trooper Munch and his partner Trooper Newman responded to Trooper Locchetto's request for an arrest team. By the time they arrived at the location, defendant was actually standing outside of the building, but then ran inside with two troopers in pursuit. When Troopers Locchetto and Dare arrived on the scene, defendant and Torres were under arrest, and Trooper Munch told him that defendant had thrown the narcotics out of a second-story window. Troopers searched the area and retrieved the pill bottle containing seventeen heat-sealed bags of suspected narcotics.
Although the brief submitted on behalf of defendant challenged the existence of probable cause to arrest defendant, at the suppression hearing, defense counsel did not challenge whether the officers had probable cause to "move in and arrest" defendant. Rather, defense counsel posited the "the issue here, really, is whether the drugs get suppressed anyway because we have an issue of a Fourth Amendment protected curtilage to the residence itself." He noted the testimony of the witnesses indicated that the area where the pill bottle was found was a fenced-in area adjacent to the house, evidence that "there was some intent to exclude that area from the general public." Additionally, defense counsel pointed out there were no exigent circumstances at that point because both troopers testified that by the time the area where the pill bottle had been thrown was searched, the area and both defendant and Torres had also been secured.
The trial court denied the motion, finding that exigent circumstances justified the warrantless entry into the home and there was probable cause to arrest defendant. The court rejected the curtilage argument, stating "[i]t appears that that was an area that had open access to others. I find that the officers had a right to be in that area and, likewise, the officers could have recovered the pill bottle." In addition, the court also found that "the search was a search incident to the defendant's arrest." The court further stated that it was unclear to the court, whether defendant had "any legal standing to argue as to the location that the bottle was covered from."
At trial, Trooper Locchetto testified about his training at the academy related to narcotics, which included "how to identify narcotics, they explained what a hand-to-hand transaction is. And throughout the Academy we learned what we use out on the street today." He explained to the jury, without objection, that "[a] hand-to-hand drug transaction is when you have a drug dealer, he's selling narcotics. A buyer will go to the drug dealer." When the prosecutor asked the trooper to describe the role of a street-level dealer, defense counsel objected stating, "at this point . . . the testimony is more akin to [what] would be provided by an expert witness as opposed to a fact witness. The testimony isn't really factual as opposed to that which would be provided by a drug expert if there was one brought in." The court overruled the objection, concluding it was appropriate for the witness to testify concerning his area of work.
The jury convicted defendant of all charges. At sentencing, the court merged counts one and two into count three, but neglected to merge the conspiracy charge into the completed offense. In addition, although the judge stated at sentencing the resisting arrest conviction would be served concurrent to the narcotics convictions, the judgment of conviction reflects that the sentence for resisting arrest was to be served consecutively.
On appeal, defendant raises the following points for our consideration:
POINT I
THE WARRANTLESS SEARCH OF THE SIDE YARD, ADJACENT TO THE RESIDENCE AT [ ] CHESTNUT STREET, WAS NOT SUPPORTED BY ANY RECOGNIZED EXCEPTION TO THE WARRANT REQUIREMENT AND WAS THEREFORE UNCONSTITUTIONAL.
POINT II
TROOPER LOCCHETTO'S TESTIMONY ABOUT HIS OPINIONS AND CONCLUSIONS AS TO WHAT HE SAW
VIOLATED THE RULE IN MCLEAN AND MR. JACKSON'S CDS CONVICTIONS MUST BE REVERSED.
POINT III
MR. JACKSON'S SENTENCE IS IMPROPER BECAUSE COUNT FOUR MUST MERGE WITH COUNT THREE, AND HIS JUDGMENT OF CONVICTION DOES NOT CONFORM TO THE ANNOUNCED SENTENCE AND SO MUST BE CORRECTED.
A) COUNT FOUR MERGES WITH COUNTS ONE THROUGH THREE.
B) THE JUDGMENT OF CONVICTION MUST BE CORRECTED.
Our review of the grant or denial of a suppression motion is limited. State v. Handy, 206 N.J. 39, 44 (2011). We consider the trial court's underlying factual findings to which we defer, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks and citations omitted). Such factual determinations will not be disturbed, even if an opportunity for independent review could lead to a different conclusion. State v. Johnson, 42 N.J. 146, 162 (1964). However, whether established facts warrant the grant or denial of a suppression motion is a legal question subject to de novo review. Handy, supra, 206 N.J. at 45. Moreover, a trial court's legal conclusions are not afforded the same deference. Ibid. "When a question of law is at stake," appellate review is plenary. State v. Mann, 203 N.J. 328, 337 (2010). With these legal principles to inform our analysis, we consider what, if any, exceptions to the warrant requirement were applicable here.
Both the federal and state constitutions guarantee the right of the people to be free from unreasonable searches or seizures. State v. Johnson, 193 N.J. 528, 552 (2008). "Warrantless searches are presumptively unreasonable and thus are prohibited unless they fall within a recognized exception to the warrant requirement." State v. Pena—Flores, 198 N.J. 6, 18 (2009). Those exceptions include, among others, plain view, search incident to lawful arrest and exigent circumstances, provided the exigency makes it "impracticable to obtain a warrant." Id. at 18, 28. The burden is on the State, as the party seeking to uphold a warrantless search, to prove by a preponderance of the evidence that such search falls within one of the recognized exceptions. State v. Pineiro, 181 N.J. 13, 19-20 (2004).
Police observing an individual engaged in the illegal sale of drugs have probable cause to pursue that individual into his or her residence, if having announced their presence and that the person is under arrest, the individual attempts to resist arrest by fleeing inside a residence. State v. Josey, 290 N.J. Super. 17, 30 (App. Div. 1996)(holding that having established probable cause to arrest defendant after witnessing him selling drugs, police were justified in "[p]ursuing him into his apartment . . . in order to effect his arrest and prevent the likely destruction of evidence"). What is implicated here, however, is whether the subsequent seizure of the evidence without a warrant was justified.
In finding that the seizure of the pill bottle was lawful, the motion judge stated "the officers had a lawful right to enter that area to retrieve the pill bottle" which was "recovered two feet from the window." The judge did not, however, specifically explain under what exception to the warrant requirement she relied in reaching that conclusion, but did express that it was unclear whether defendant had "legal standing to argue as to the location that the bottle was covered from." We assume, by that statement, the judge agreed with the State's contention that by discarding the pill bottle out of the window, defendant abandoned it because the judge also stated that it appeared the area from where the pill bottle was recovered "had open access to others." This latter factual finding, however, is not supported by any evidence in the record.
The testimony elicited from the State's two witnesses revealed that the property into which defendant fled was a single-family row home. Trooper Locchetto described the residence as having a side area, which was blocked off by a fence. It was in this fenced-in exterior area where the pill bottle was discarded and landed ten feet away from the window out of which it was thrown. The trooper explained that he "went through the house to get [to the fenced-in yard]." Trooper Munch testified he gained access to the side yard by exiting the front of the residence and going around to the side. He acknowledged there was a fence but did not remember whether he went through the fence, over it, or around it. He recalled, however, that "there may have been a gate there."
The fact that the troopers gained access to the side yard does not render the area open to members of the general public, particularly in light of the undisputed testimony that the area was fenced-in. The fenced-in nature of the yard unquestionably suggests that it was part of the property and therefore we agree, as defendant urged, the fenced-in yard was part of the residence's curtilage.
The curtilage of a property encompasses certain lands adjacent to that property. State v. Johnson, 171 N.J. 192, 208 (2002).
The boundaries of the curtilage are defined by four factors, namely: (1) the proximity of the area . . . to the home; (2) whether the area is included within an enclosure surrounding the house; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by people passing by.
[State v. Lane, 393 N.J. Super. 132, 145 (App. Div.) (internal citations and quotations omitted), certif. denied, 192 N.J. 934 (2007).]
The same standards governing the warrantless entry into the interior of the residence would also govern the warrantless entry into the curtilage. Johnson, supra, 171 N.J. at 209. Here, the fenced-in yard area cannot be viewed as a location that would, generally, be open to the public, such as walkways, steps, or driveways. Ibid. (stating when the police enter onto property for lawful purposes, and thereafter limit their movements to locations "'visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment)'" (quoting 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 2.3(f) (3d ed. 1996)).
We are not prepared, on this factual record, to conclude whether discarding the pill bottle into the yard area of the property can be treated as an abandonment, as urged by the State. The pill bottle was not discarded onto a public street where any member of the public could gain access to it. Johnson, supra, 171 N.J. at 209-10 (stating that "what a person knowingly exposes to the public" is not subject to the Fourth Amendment protection). Instead, it was discarded into fenced-in yard, without any evidence in the record that this area was open to the general public. The State argued
[t]here is no testimony that the fence just surrounded that specific portion of the row home. Therefore, if that fenced-in area was shared by other residents, there's clearly no expectation of privacy in that kind of area. Ten feet away, if other residents have access, how can the defendant claim a Fourth Amendment protection?It is the "if" in the State's argument that is fatal to the claim defendant abandoned the property when he discarded the property. The State bears the burden of establishing that the property was abandoned. State v. Davila, 203 N.J. 97, 112 (2010); Pena—Flores, supra, 198 N.J. at 25. Merely discarding the pill bottle into another location within the confines of the property does not necessarily establish abandonment. State v. Hemple, 120 N.J. 182 (noting that the fact that defendant discarded incriminating evidence, which was concealed in a plastic garbage bag, and placed it out for garbage pick-up did not mean the defendant had relinquished his expectation of privacy in the contents of the garbage). Here defendant discarded the pill bottle onto another location of the property, which was fenced-in. There was no evidence that this area was open to the public. The State presented no evidence as to the ownership of the residence, the authorized occupants, or defendant's connection to the premises. Although it was undisputed defendant relinquished physical control of the pill bottle, there was insufficient evidence before the court to conclude that defendant had abandoned his privacy interest in the contents of the pill bottle in the constitutional sense.
The motion judge also found that the seizure of the pill bottle was a search incident to a lawful arrest. We disagree.
A search incident to a lawful arrest permits police to search the area within the immediate area of the arrestee's grasp. State v. Minitee, 210 N.J. 307, 318 (citing Chimel v. California, 395 U.S. 752, 762—63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)). The scope of the search is restricted to the area from which the arrestee may seize a weapon or destroy evidence. State v. Eckel, 185 N.J. 523, 541 (2006); State v. Dunlap, 185 N.J. 543, 548—49 (2006) (holding that "the search incident to arrest exception cannot be invoked where a defendant has no capacity to reach the interior of the vehicle to destroy evidence or to endanger the police"). The pill bottle was not within defendant's grasp at the time of his arrest. Therefore, the seizure of the pill bottle cannot be justified under this exception to the warrant requirement.
Next, we conclude there were no exigent circumstances justifying the seizure of the pill bottle, in as much as both troopers acknowledged that an arrest team was at the scene and by the time Trooper Locchetto entered the yard area to retrieve the pill bottle, the area had been secured and defendant and Torres were already under arrest. See State v. Ford, 271 N.J. Super. 351, 354-55 (App. Div. 1995).
We are, however, persuaded that the plain view exception to the warrant requirement is applicable here. Application of the plain view doctrine requires both that police be lawfully in the viewing area and that there be probable cause for search or seizure. Johnson, supra, 171 N.J. at 206. In addition, the observation by police must be inadvertent, "meaning that he did not know in advance where evidence was located nor intend beforehand to seize it." Id. at 206 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983).
In Johnson, the court noted that traditional requirements of the plain view doctrine that the officer be lawfully on the premises and not have known in advance of the location of the evidence, the inadvertence prong was altered by the United States Supreme Court in Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). Johnson, supra, 171 N.J. at 211. In Horton, during the course of executing a search warrant for three specifically described items believed to be proceeds of a robbery, the officer was also interested in seizing any other incriminating evidence found. 496 U.S. at 131, 110 S. Ct. at 2304, 110 L. Ed. 2d at 119. The Court found:
The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement. . . . On the other hand, if he or she has a valid warrant to search for one item and merely a suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first.The Court concluded that the officer's seizure of weapons found during the search was lawful because he had a valid search warrant and it was immediately apparent to the officer that the weapons were incriminating evidence. Id. at 142; 110 S. Ct. at 2310—11, 110 L. Ed. 2d at 126. The Court reasoned that the officer "had probable cause, not only to obtain a warrant to search for the stolen property, but also to believe that the weapons and handguns had been used in the crime he was investigating. The search was authorized by the warrant, the seizure was authorized by the 'plain view' doctrine." Ibid. Our Court in Johnson, while extensively discussing the Supreme Court's holding in Horton, did not jettison the inadvertence requirement under Article I, paragraph 7, concluding that "whatever remains of the 'inadvertence' requirement of plain view since Horton was satisfied in this case because the police officers did not know in advance that evidence would be found in a hole beside one of several posts on the porch." Johnson, supra, 171 N.J. at 213. In State v. Padilla, 321 N.J. Super. 96, 109-10 (App. Div.), certif. denied, 162 N.J. 198 (1999), we stressed that the significance of the inadvertence requirement in the third prong of the plain view doctrine is to prevent pretextual searches.
[Id. at 138—39, 110 S. Ct. at 2309, 110 L. Ed. 2d at 123—24.]
The Court granted certification in State v. Gamble, 213 N.J. 189 (2013), a case in which the inadvertence prong of the plain view doctrine is implicated.
Trooper Locchetto observed defendant step outside the residence and engage in hand-to-hand suspected drug transactions. He radioed a description of defendant and his location to the arrest team. Defendant attempted to avoid arrest by running into the residence, but officers lawfully pursued him, conduct which, on appeal, defendant does not challenge. There was probable cause to arrest defendant on narcotics charges and the arrest team was lawfully on the premises to effectuate that arrest. There is no evidence in the record that Trooper Munch knew defendant had secreted the pill bottle on his person. Trooper Munch testified he received a description of the suspects and their location and when he approached defendant, he told defendant, "State Police, don't move." Rather than comply, defendant ran through the doorway and up the stairs. Trooper Munch pursued defendant and, during the course of that pursuit, observed defendant run to an open window and "toss[]an orange pill bottle out the window."
Trooper Munch was not at the premises to conduct an exploratory search for drugs. Rather, he was there to effectuate an arrest. Had defendant not removed the pill bottle from his person, the trooper would have conducted a search incident to that arrest, discovered the pill bottle as part of that search, and lawfully recovered it. Instead, he witnessed defendant discarding apparently incriminating evidence.
[T]he seizure of an object in plain view does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view and there is no need for an inadvertence limitation on seizures to condemn it. The prohibition against general searches . . . serves primarily as a protection against unjustified intrusions on privacy. But reliance on privacy concerns that support that prohibition is misplaced when the inquiry concerns the scope of an exception that merely authorizes an officer with a lawful right of access to an item to seize it without a warrant.
[Horton, supra, 496 U.S. at 141-42, 110 S. Ct. at 2301, 110 L. Ed. 2d at 125-26 (1990) (emphasis added).]
In Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29, L. Ed. 2d 564 (1971), the Supreme Court noted that the plain view doctrine supplements an officer's prior justification for being present, such as, in hot pursuit, but also noted that "the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them." Coolidge, supra, 403 at 466, 91 S. Ct. at 2038, 29 L. Ed. at 583. Here, Trooper Munch was lawfully on the premises to effectuate defendant's arrest, which defendant does not challenge in this appeal. He was in hot pursuit of defendant when he observed defendant discarding the item out the window. Thus, Trooper Munch had a prior justification for being on the premises when he witnessed defendant discarding evidence and it was immediately apparent to the trooper that he was witnessing an attempt to discard incriminating evidence. Under these circumstances, no constitutional protections under either federal or state law were offended. The pill bottle seized was in plain view of Trooper Munch.
II.
Next, defendant challenges testimony the prosecutor elicited from Trooper Locchetto, explaining the nature of a hand-to-hand transaction. The prosecutor asked the witness whether he was familiar with "hand-to-hand drug transactions." Trooper Locchetto responded: "A hand-to-hand drug transaction is when you have a drug dealer, he's selling narcotics. A buyer will go to the drug dealer. He will exchange United States currency for the narcotics and the dealer will give the -- the narcotics to the buyer."
Defendant did not object to this question. Therefore, we review the claimed error under the plain error standard, meaning, we determine, if error, whether it was an error capable of producing an unjust result. R. 2:10-2. An error is capable of producing an unjust result if but for the error, the jury would have reached a contrary verdict. Ibid.; see also State v. Taylor, 350 N.J. Super. 20, 35 (App. Div. 2002).
Trooper Locchetto was not called as an expert witness. Rather, he was called as a fact witness. As such, his testimony is limited to that which was based upon his own personal knowledge, drawn from the use of his own senses. State v. McLean, 205 N.J. 438, 456-57 (2011). As a fact witness he was permitted to provide a description of his observations. He described to the jury that he witnessed defendant, on two separate occasions, being approached by an individual who handed him money, and defendant, in turn, removed an item from a pill bottle and gave it to the individual. He characterized what he saw as a hand-to-hand transaction.
"If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. In describing a hand-to-hand transaction, Trooper Locchetto did not cross into the impermissible range of fact or lay testimony, but instead confined his opinion to the "narrow bounds of testimony" based upon his perception, which was intended to "assist the jury in performing its function." McLean, supra, 205 N.J. at 456. Thus, there was no error in eliciting this testimony, let alone plain error.
III.
Finally, defendant contends the court erred when it failed to merge the conspiracy to possess controlled dangerous substances with intent to distribute (Count Four), with the possession of controlled dangerous substance within 1000 feet of a school (Count Three), and imposed a consecutive sentence on the resisting arrest conviction, despite stating the sentence would be served concurrently. During sentencing, the trial court acknowledged that Count Four should merge into count three, but the judgment of conviction fails to reflect this merger. The State concedes the court erred in failing to merge count three into count four and imposing a consecutive sentence on the resisting arrest conviction. Therefore, a limited remand hearing is necessary to correct the judgment of conviction.
The judgment of conviction on all counts is affirmed and the sentences imposed on counts one through three are affirmed. We remand for the limited purpose of the necessary merger of count four into count three for sentencing purposes and for correction of the judgment of conviction. We do not retain jurisdiction.
Affirmed in part, reversed in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION