Opinion
DOCKET NO. A-2100-12T2
05-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HECTOR JEAN, a/k/a JEAN HECTOR, JEANYVES HECTOR, JEAN TURNAGE, JEAN Y. HECTOR, LAWRENCE YOUNG, JEAN FELIX, JOHN HECTOR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-03-0280. Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Hector Jean appeals from the trial court's denial of his motion to suppress evidence obtained from a search. For reasons not apparent in the record and which, in such a close case, confound reasonable explanation, the parties agreed to have the court decide the motion on stipulated facts without testimony. Because the State's limited stipulated proofs were insufficient to meet the standard for strip searches, we are compelled to reverse.
I.
The following facts are not disputed. The Elizabeth Police Department had received complaints about drug activity occurring in the parking lot of the Spring Lane motel. As a result, Detectives James Malone and David Conrad were conducting surveillance in the motel parking lot on November 11, 2010, when they observed a green Honda Odyssey drive into the lot at approximately 5:30 p.m. The detectives watched defendant get out of the Honda, urinate on the wall of the motel, reenter the vehicle, and drive to the other side of the lot. Because defendant did not attempt to enter the motel, the detectives decided to investigate further.
Sergeant Kelly, Detectives Diorio and Scharpnick, and Officer Frammigen arrived and, with Detectives Malone and Conrad, all six officers approached defendant's vehicle. Malone asked defendant to get out of the car and walk to the rear; defendant complied. After identifying defendant, Diorio called headquarters and learned that defendant had two outstanding municipal warrants for his arrest in Elizabeth.
Although defense counsel stated the warrants were for traffic violations, the court explicitly noted, "There's no indication as to what the basis was for those warrants, whether they were for criminal offenses, whether they were for failure to pay fines, whether they were for motor vehicle offenses, there's no indication in the record as to what that is." Nonetheless, the court applied N.J.S.A. 2A:161A-1 to the search of defendant, which applies only to a person detained for non-criminal offenses. The court thus implicitly found that the warrants were for non-criminal offenses.
Based on the report of the outstanding warrants, Malone placed defendant under arrest and conducted a search incident to arrest. Because the conduct of the search is essential here, we reproduce those stipulated facts verbatim:
During the search, Detective Malone felt a strange bulge in defendant's pants and he noticed the pants were unbuttoned, partially unzipped and sagging. Since the arrest took place in a public area, Detective Malone decided to complete the search at the station. Upon arrival at the station, Detectives Malone and Conrad took defendant to the bathroom. When defendant opened his pants a clear plastic bag containing forty-seven small pieces of clear plastic tied in knots fell out. Inside each of the smaller packages there was a substance later confirmed to be cocaine.
Defendant was indicted and charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3).
Defendant moved to suppress the cocaine, and the parties stipulated to the relevant facts at the motion hearing. On appeal, defendant contends he stipulated only to the facts contained in the State's brief in opposition to the motion dated July 7, 2011, while the State argues that defendant additionally stipulated to the facts contained in its August 18, 2011 supplemental brief.
The court relied on facts contained in both of the State's briefs in concluding that "permission was granted by the of — by the authorizing officer of . . . that headquarters to conduct a strip search." Based on "[the stipulated] facts and those facts alone," the court denied defendant's motion. The motion judge reasoned that N.J.S.A. 2A:161A-1(c) authorized the search because (1) defendant was contained in a municipal detention facility, the Elizabeth police station, (2) the search was based on a reasonable suspicion that defendant was in possession of "something that the defendant was not entitled to be in possession of while in [a detention] facility," and (3) the detectives "got permission from the — from the front desk to make that search."
The court explicitly rejected defendant's argument that the reasonable suspicion under N.J.S.A. 2A:161A-1(c) must be suspicion that contraband or criminal evidence is present, instead stating that "[w]hether it was cigarettes, whether it was a wallet containing money, those things are subject to a reasonable suspicion standard that it's something other than [what defendant is] entitled to be in possession of."
On December 12, 2011, defendant pled guilty to third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). A charge of third-degree possession of cocaine was dismissed.
The State agreed to recommend a sentence of five years with a two-year period of parole ineligibility. The judge sentenced defendant on March 16, 2012 to a term of four years with a two-year parole disqualifier, along with the statutorily-mandated fines and penalties.
On March 20, 2012, defendant submitted a request to appeal, but notice of appeal was not filed. We agreed to accept defendant's brief on May 7, 2014. In it, he raises the following arguments:
POINT I
BECAUSE MR. JEAN WAS NOT LAWFULLY CONFINED IN A MUNICIPAL DETENTION FACILITY AND THERE WAS NO EVIDENCE BEFORE THE COURT THAT THE SEARCH WAS AUTHORIZED UNDER REGULATIONS PROMULGATED BY THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS, THE STRIP SEARCH WAS ILLEGAL AND THE PHYSICAL EVIDENCE RESULTING FROM THE SEARCH SHOULD HAVE BEEN SUPPRESSED.
A. MR. JEAN WAS NOT LAWFULLY CONFINED IN A DETENTION FACILITY.
B. THE RECORD DOES NOT SUPPORT THE COURT'S FINDING THAT AN OFFICER IN CHARGE AUTHORIZED THE STRIP SEARCH.
POINT II
BECAUSE THE SEARCH WAS NOT BASED ON PROBABLE CAUSE THAT A CONTROLLED DANGEROUS SUBSTANCE WOULD BE FOUND AND NO RECOGNIZED EXCEPTION TO THE WARRANT REQUIREMENT EXISTED, THE STRIP SEARCH WAS ILLEGAL AND THE PHYSICAL EVIDENCE RESULTING FROM THE SEARCH SHOULD HAVE BEEN SUPPRESSED.
A. THERE WAS NO PROBABLE CAUSE TO BELIEVE THAT DRUGS WOULD BE RECOVERED.
B. THERE WAS NO RECOGNIZED EXCEPTION TO THE WARRANT REQUIREMENT.
At the outset, we observe that while we are mindful of the problems created by crowded court calendars, time constraints, and limited judicial, prosecutorial and public defender resources, the litigation shortcuts employed here elevated expediency above practicality, were ill-advised, and prejudiced both defendant and the State.
The record is clear that defendant stipulated only to the facts contained in the State's first brief, and not the second. The express stipulation in defendant's brief states that "the defense does not dispute the facts as alleged by the State in its brief dated July 7, 2011 regarding the arrest of Mr. Hector [Jean]." No further written stipulation was entered by defendant.
At the suppression hearing, defense counsel stated, "I do want to say that this motion is based on a stipulation of facts entered into between . . . [the prosecutor] and myself I should say. And it is, essentially, the facts as laid out [in] the prosecutor's brief, the original brief." Defense counsel then expressly noted his objection to one "important issue" asserted by the State in its supplemental brief; that is, "whether there was a determination that Mr. Jean . . . had sufficient or insufficient funds to make bail on the warrants."
The State now argues that defense counsel's failure to object to additional facts contained in its supplemental brief amounts to a stipulation to those facts. We disagree.
Stipulations of fact are binding on the parties. Negrotti v. Negrotti, 98 N.J. 428, 432-33 (1985). In Negrotti, the Court held that "it is important for attorneys to have confidence in stipulations as a tool to avoid the expense, trouble, and delay of coming forward with proofs when certain otherwise-contestable facts are admitted." Id. at 432. If a stipulation is to be given effect, its terms must be "definite and certain and it is essential that they be assented to by the parties or those representing them." Schere v. Twp. of Freehold, 150 N.J. Super. 404, 407 (App. Div. 1977). The dispositive facts are thus limited to those contained in the State's first brief.
The State argues this was not a strip search but a search pursuant to an arrest. Again, we disagree. A strip search is defined in N.J.S.A. 2A:161A-(3)(a) as meaning "the removal or rearrangement of clothing for the purpose of visual inspection of the person's undergarments, buttocks, anus, genitals or breasts." The motion judge correctly determined that once the police decided to remove or rearrange defendant's pants at the police station to view beneath, he was being subjected to a strip search and the State was required to satisfy N.J.S.A. 2A:161A-1(c). That statute provides:
The motion judge improperly concluded that the search incident to arrest became a strip search when the location moved from parking lot to police station. It was the removal of defendant's clothing and the viewing of his undergarments, not his transportation to the station, that rendered this a strip search.
A person who has been detained or arrested for commission of an offense other than a crime shall not be subjected to a strip search unless:
a. The search is authorized by a warrant or consent;
b. The search is based on probable cause that a weapon, controlled dangerous substance, as defined by the "Comprehensive Drug Reform Act of
1987," N.J.S.A. 2C:35-1 et al., or evidence of a crime will be found and a recognized exception to the warrant requirement exists; or
c. The person is lawfully confined in a municipal detention facility or an adult county correctional facility and the search is based on a reasonable suspicion that a weapon, controlled dangerous substance, as defined by the "Comprehensive Drug Reform Act of 1987," N.J.S.A. 2C:35-1 et al., or contraband, as defined by the Department of Corrections, will be found, and the search is authorized pursuant to regulations promulgated by the Commissioner of the Department of Corrections.
Subsection (a) is not applicable as no warrant was obtained and defendant did not consent to the search. In addition, there are no facts showing an exigency or other recognized exception which created a need to conduct the search without a warrant. The motion judge found that this "search was based upon a reasonable suspicion," not probable cause, so subsection (b) is also not applicable.
The only possible authorization for the search was subsection (c), which the court found applicable here. Defendant argues that subsection (c) was not satisfied because he was not lawfully confined in a municipal detention facility within the meaning of the statute.
In State v. Hayes, 327 N.J. Super. 373 (App. Div. 2000), we determined that "the detention necessary to process an arrestee cannot constitute confinement within the meaning of subsection 1c, and would not justify a strip search." Id. at 379. In Hayes, the defendant had been arrested on warrants and was transferred to the police station for further investigation of those warrants. Id. at 383. Because the defendant had sufficient funds to post bail on the outstanding warrants and was thus free to leave, he could not be considered "lawfully confined" within the meaning of N.J.S.A. 2A:161A-1(c). Ibid.
We rejected arguments that the defendant's arrest or the possibility that he secreted evidence in the police station could justify the search because both positions "would effectively nullify" the statutory protections of N.J.S.A. 2A:161A-1. Id. at 378. Specifically, we rejected that the "search incident to arrest" or "exigency of evidence dissipation" exceptions to the warrant requirement could ever satisfy that requirement of subsection (b), reasoning that an arrest and the possibility of evidence secretion or dissipation are present in every case in which the strip search statute is implicated. Ibid.
Here, the stipulated facts establish that defendant was transported to police headquarters because "Detective Malone decided to complete the search at the station." Defendant was thus detained there for investigative reasons; i.e., a search.
In Hayes, we expressly "conclude[d] that an investigative detention, . . . regardless of the amount of time it takes, does not render a suspect 'lawfully confined' within the meaning of subsection 1c of the statute." Hayes, supra, 327 N.J. Super. at 383. Holding otherwise "would permit the police to nullify the statute's protections by detaining a person for a warrant check or other investigative procedures after an arrest, and using such detention to provide the basis for a strip search under section 1c." Ibid. Here, as in Hayes, defendant's detention on outstanding warrants did not qualify as "confinement" when the strip search occurred.
Moreover, there were no stipulated facts regarding the amount of bail defendant was required to post to satisfy the outstanding municipal warrants. Indeed, defense counsel specifically did not stipulate to "whether there was a determination that Mr. Jean . . . had sufficient or insufficient funds to make bail on the warrants." Absent a showing by the State that defendant could not have posted bail and left the station, defendant cannot be considered "lawfully confined" within the meaning of N.J.S.A. 2A:161A-1(c). Ibid.
The third prong of subsection (c) requires that "the search is authorized pursuant to regulations promulgated by the Commissioner of the Department of Corrections." N.J.S.A. 2A:161A-1(c). The pertinent regulation, which in addition to requiring lawful confinement and reasonable suspicion of contraband, requires that "the custody staff member authorized to conduct the strip search has obtained the authorization of the custody staff supervisor in charge." N.J.A.C. 10A:34-3.4(a)(3). See also Hayes, supra, 327 N.J. Super. at 379 ("The applicable regulation requires authorization of a strip search by the officer in charge.").
The State submits that the relevant regulation is N.J.A.C. 10A:31-8.4. That provision pertains only to detention at an adult county correctional facility, not a municipal detention facility, and is thus inapplicable. It requires the same showing as N.J.A.C. 10A:34-3.4(a)(3) in any event.
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Here, the record does not show that the search was authorized by the officer in charge. The relevant stipulated facts are as follows:
Since the arrest took place in a public area, Detective Malone decided to complete the search at the station. Upon arrival at the station, Detectives Malone and Conrad took defendant to the bathroom. When defendant opened his pants a clear plastic bag containing forty-seven small pieces of clear plastic tied in knots fell out.
There are no facts pertaining to police even seeking, let alone obtaining, authorization for the strip search from the officer in charge. The court's finding otherwise, based solely on the non-stipulated assertion by the State that the officers obtained permission before executing the strip search, is not supported by sufficient credible record evidence. State v. Elders, 192 N.J. 224, 243 (2007). As such, it must be disregarded. Ibid.
We are satisfied that the facts to which defendant stipulated are insufficient to meet the standard set forth in any subsection of N.J.S.A. 2A:161A-1. Consequently, the search of defendant was illegal and his motion to suppress should have been granted.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION