Opinion
DOCKET NO. A-0280-14T2
03-02-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. SCOTT MUNROE, Defendant-Respondent.
Kimberly Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Grace H. Park, Acting Union County Prosecutor, attorney; Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Kevin G. Roe argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Hayden and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 13-01-0105. Kimberly Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Grace H. Park, Acting Union County Prosecutor, attorney; Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Kevin G. Roe argued the cause for respondent. PER CURIAM
Defendant Scott Munroe was indicted by the Union County grand jury and charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); third-degree possession of cocaine within 1000 feet of a school, N.J.S.A. 2C:35-7; and second-degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1. The Law Division granted defendant's motion to suppress evidence seized without a search warrant. By leave granted, the State now appeals.
At the evidentiary hearing on defendant's motion that took place on June 5, 2014, the State produced a single witness, Linden Police Department Detective Thomas Larmore. Larmore had been a police officer for twenty-two years and had served in the narcotics unit for fifteen years. In her comprehensive written decision, the motion judge recognized and accepted Larmore's experience and training.
Larmore testified that on October 5, 2012, at approximately 8:00 p.m., he was seated in an unmarked SUV with his partner and supervisor, Detective Lieutenant Turbett, conducting surveillance of an intersection in Linden that Larmore described as having high criminal and narcotics activity. Larmore had received citizen complaints about drug activity in the area, and in particular, that a male and an older African-American female were directly involved. Additionally, Turbett had received information from a known and previously-reliable confidential informant that a male would answer the phone and the African-American female would then "show up" with the drugs.
Turbett's full name does not appear in the record.
On one corner of the intersection, Larmore observed a male, known "drug user" pacing back and forth. A few minutes later, a Jeep parked a short distance behind the police SUV. Larmore saw the interior light go on, and an older African-American female exited from the passenger side. She crossed the street, approached the man at the intersection and made a hand-to-hand exchange with him. The man walked to and entered his nearby home, as the woman walked away while speaking on her cell phone. Larmore believed that he had witnessed a narcotics sale.
Larmore also suspected that the driver of the Jeep was involved, so, he and Turbett exited their police vehicle and, using their flashlights, approached the Jeep where defendant sat alone in the driver's seat. Defendant was engaged in a phone call and initially refused Larmore's request to end the call. However, he eventually did, and Larmore asked about the female who had been in the Jeep with defendant. Defendant denied that anyone had been in the car with him.
Larmore noted that defendant had two cellphones and at some point both were ringing at the same time. Larmore testified that, based upon his experience and training, he knew that those involved in narcotics trafficking frequently use one phone for transacting business and kept the other phone "clean." Defendant produced an ostensibly valid license and registration for the Jeep.
Turbett was on the passenger side of the vehicle, and, as Larmore was conversing with defendant, Turbett told Larmore that defendant kept moving his right hand or his right side, and urged Larmore to "get him out." Larmore ordered defendant out of the vehicle, placed him against the side of the Jeep and was about to frisk him. Turbett, who ran from the other side of the vehicle and was now approaching both men from defendant's right side told Larmore "there's a clear plastic bag, it's sticking out of [defendant's] pocket." Turbett removed the bag, which Larmore described in response to a question by the judge, as the size of a sandwich bag. It contained "[thirteen] smaller baggies, each containing a white rock substance" eventually determined to be cocaine.
Defendant was arrested. No other drugs were found, but defendant had $850 in cash on his person. Police arrested the older African-American woman, Ellen Thomas, at another location. She had no drugs in her possession.
Thomas was indicted along with defendant and charged with various drug offenses in three separate counts.
In her written decision, the judge observed that on direct examination, Larmore "was calm, consistent, direct and responsive," but that his "demeanor changed considerably" on cross-examination. She found his answers then were mostly "non-responsive," that he "often volunteered information not asked of him," and his "failure to provide direct responses . . . hurt his credibility with this [c]ourt."
Despite expressing these reservations, the judge fully accepted Larmore's testimony as detailed above in analyzing the legal issues presented. She rejected the State's argument that the officers had probable cause to arrest defendant, and, therefore, the search and seizure was not incident to a lawful arrest.
However, citing Larmore's testimony regarding the information received from citizens and the confidential informant, and considering the officers' training and experience as well as their observations of a hand-to-hand transaction between Thomas and a "known drug user," the judge concluded the officers "had an objective and reasonable basis to suspect that [d]efendant was involved in criminal activity." She determined, therefore, "that the officers were justified in conducting a Terry stop."
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968).
The judge also concluded that this information, together with defendant's "actions while seated in [the] Jeep, justified their decision to remove [d]efendant from his vehicle." Citing State v. Smith, 134 N.J. 599, 610-11 (1994), the judge reasoned that defendant's "behavior" gave the officers "an additional basis to remove [him] from his vehicle for their own safety after [d]efendant, . . . in a high narcotics area, at night, refused to comply with Larmore's order that he hang up the cell phone and then began to move his right hand."
Recognizing that the propriety of a frisk must be assessed independently of a valid investigatory stop, see, e.g., Smith, supra, 134 N.J. at 609 ("[T]he validity of the pat-down was an independent inquiry from the order to step out of the vehicle"), the judge determined that under the totality of the circumstance, Larmore's decision to frisk defendant was justified. She stated:
Turbett apparently saw [d]efendant moving his right hand or the right side of his body while seated in the Jeep, information which he relayed to Larmore, after [d]efendant initially refused to cooperate by ending his phone call. This provided the officers with
a basis to remove [d]efendant from his vehicle and conduct a pat down for their own safety particularly given the lateness of the hour and the dark area.
Shortly thereafter in her written opinion, the judge considered additional factors justifying the frisk, including defendant "lying about Thomas having been in his vehicle."
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The judge then considered whether the "'plain view' rule" applied to the facts. Citing State v. Mann, 203 N.J. 328, 340-41 (2010), she observed that this exception to the warrant requirement applied
upon satisfaction of . . . three conditions: 1) the officer must have been lawfully situated at the time the evidence was first viewed, and also at the time it was seized; 2) the discovery of the evidence must have been inadvertent; and 3) the criminality of the evidence must have been "immediately apparent" to the officer.The judge concluded that because "Turbett [was] lawfully near [d]efendant[] at the side of the Jeep[] when he seized the baggie, the first requirement of the plain view doctrine [was] satisfied."
However, she found that the State failed to satisfy the "'inadverten[cy]' requirement," because "without the testimony of Turbett[,]" "it [was] impossible . . . to determine if the discovery of the baggie containing CDS was nothing more than an 'inadvertent fortuity.'" See State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Regarding the third prong of the plain view analysis, again citing Turbett's absence as a witness, the judge stated that she could not "determine if there was criminality associated with the bag that was 'immediately apparent' to the officer." Because Turbett did not testify, the judge could not find as a fact "what Turbett knew at the time of the seizure." She continued:
While it is possible that Turbett may have had reason to believe that the bag contained CDS or other drug-related contraband, it is unclear what part of the bag was protruding from [d]efendant's pocket, which pocket it was observed in, whether any drugs contained therein were observed by Turbett, and how this bag may have compared to other bags used to store or package narcotics. While Larmore testified that the bag was protruding from the right change pocket of [d]efendant's pants, he received this information from Turbett and never saw the bag himself until after Turbet had removed it from [d]efendant.
Turbett is a police lieutenant assigned to the Narcotics Unit and likely has vast experience in narcotics' investigations. It may be that the criminality of the bag, perhaps as common packaging material, was immediately apparent to him. Thus, it may have been entirely reasonable for Turbett to have removed the bag allegedly protruding from [d]efendant's change pocket.
As noted, the Court did not have the benefit of Turbett's testimony so knows nothing about his education, training and experience in the narcotics field.
Finally, the judge did not accept the State's argument that the drugs would have been found during any pat-down of defendant. She stated, "without the benefit of Turbett's testimony the Court has no idea what the bag looked like when the officer first observed it or what it felt like. The seizure . . . cannot be justified under the 'plain feel' doctrine based upon the testimony of . . . Larmore." The judge entered an order granting defendant's motion to suppress.
The State argues that there was probable cause to arrest defendant and the seizure of the cocaine was proper as incident to that arrest. Interestingly, a footnote in the State's brief states that it "contests only the . . . court's finding that the police lacked probable cause to arrest or search defendant." In its reply brief, the State reiterates that it "is not pursuing the plain-view argument that was advanced in the trial court."
Defendant, on the other hand, argues that the officers lacked both probable cause and a reasonable and articulable suspicion of criminal behavior, so they were unjustified in ordering defendant out of his car. Alternatively, defendant argues that the judge correctly decided that the plain view exception did not apply.
During oral argument before us and despite the specific disclaimers contained in the brief, the assistant prosecutor, who did not author the brief, argued in the alternative that the State had demonstrated the plain view exception applies.
It is well understood that when considering the ruling on a motion to suppress evidence, "[w]e conduct [our] review with substantial deference to the trial court's factual findings, which we 'must uphold . . . so long as those findings are supported by sufficient credible evidence in the record.'" State v. Hinton, 216 N.J. 211, 228 (2013) (quoting State v. Handy, 206 N.J. 39, 44 (2011)). "When . . . we consider a ruling that applies legal principles to the factual findings of the trial court, we defer to those findings but review de novo the application of those principles to the factual findings." Ibid. (citing State v. Harris, 181 N.J. 391, 416 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)). However, despite our deferential standard, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then the appellate court should review 'the record as if it were deciding the matter at inception and make its own findings and conclusions.'" Mann, supra, 203 N.J. at 337 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
We fully concur with the judge's determination that the officers lacked probable cause to arrest defendant. "For probable cause to arrest, there must be probable cause to believe that a crime has been committed and 'that the person sought to be arrested committed the offense.'" State v. Chippero, 201 N.J. 14, 28 (2009) (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)). Notably, the State has not asserted the specific crime or crimes for which it contends the officers had probable cause to arrest defendant. The information received from the confidential informant indicated only that a man answered the phone and an older African-American woman would appear and distribute the narcotics. However, Larmore's testimony made clear that there was no description provided for this man or for the vehicle, if any, that would be used.
On the other hand, we also agree with the motion judge's determination that, considering the totality of the circumstances, the officers knew of "specific and articulable facts which, taken together with rational inferences from those facts, [gave] rise to a reasonable suspicion of criminal activity." State v. Pineiro, 181 N.J. 13, 20 (2004). "The suspicion need not rise to the 'probable cause necessary to justify an arrest.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). We need not reiterate all the factual findings the judge made in this regard. Additionally, since the investigatory detention was justified, and in light of the judge's specific finding that the officers were acting "for their own safety," the decision to order defendant from the vehicle was appropriate. Smith, supra, 134 N.J. at 611.
We concur with the judge's recitation of the elements of the plain view exception to the warrant requirement.
The plain view doctrine requires the police officer to lawfully be in the viewing area. The officer must discover the evidence inadvertently, meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. The third element . . . is that it had to be immediately apparent to the officer that items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.There is no dispute, and the motion judge properly found, that both Larmore and Turbett were lawfully in the viewing area.
[State v. Johnson, 171 N.J. 192, 206-07 (2002) (citations and internal quotation marks omitted).]
However, we part company with the judge's analysis regarding prongs two and three of the doctrine. In doing so, we initially recognize, as the judge herself noted during the testimony, that hearsay evidence is generally admitted during the evidentiary hearing on a motion to suppress. See, e.g., State v. Gibson, 429 N.J. Super. 456, 466 (App. Div. 2013) ("[T]he suppression hearing may include evidence inadmissible in the trial on the merits. . . . The Rules of Evidence do not apply in the suppression hearing, except as to N.J.R.E. 403 and claims of privilege." (citing N.J.R.E. 104(a)), rev'd on other grounds, 219 N.J. 277 (2014); see also State v. Bynum, 259 N.J. Super. 417, 420 (App. Div. 1992) (recognizing admission of hearsay under predecessor Rule to N.J.R.E. 104(a)). In her recitation of the evidence upon which her ruling was premised, the judge never indicated that Larmore's testimony regarding his partner's statements was not credible.
In analyzing the second prong of the plain view exception, the judge specifically found "there [was] nothing to suggest that [the officers'] decision to approach [d]efendant and remove him from the car was a pretext for an otherwise unlawful search." Nevertheless, the judge concluded that in the absence of Turbett's testimony, "it [was] impossible . . . to determine if the discovery of the baggie containing CDS was nothing more than an 'inadvertent fortuity'" (quoting Bruzzese, supra, 94 N.J. at 238). We think this was an overly restricted view of the inadvertency prong.
The second prong "is satisfied if the police did not 'know in advance the location of the evidence and intend to seize it,' essentially relying on the plain-view doctrine only as a pretense." Johnson, supra, 171 N.J. at 211 (emphasis added) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 470, 91 S. Ct. 2022, 2040, 29 L. Ed. 2d 564, 585 (1971)); see also Bruzzese, supra, 94 N.J. at 236 ("[T]he 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.") (citing Coolidge, supra, 403 U.S. at 470, 91 S. Ct. at 2040, 29 L. Ed. 2d at 585). The Johnson Court noted that "the United States Supreme Court [had] altered the 'inadvertence prong' of the plain view doctrine," citing Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). Johnson, supra, 171 N.J. at 211.
[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 and general warrants 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.
[Id. at 212-13 (quoting Horton, supra, 496 U.S. at 141-42, 110 S. Ct. at 2310, 110 L. Ed. 2d at 126).]
In Johnson, police responded to a certain address based upon a tip of drug and ordinance violations and saw several individuals on the porch. Id. at 199-200. Upon seeing the police, one of the individuals, the defendant, placed a light-colored object near a support post. Id. at 200. The police officer climbed onto the porch, used a flashlight to illuminate a hole near the support post and seized the object, that turned out to be crack cocaine, from the hole. Id. at 200-01. The Court noted that the officers were responding to a tip from a citizen informant and there was no evidence of pretext. Id. at 212. Rather, the officer saw the defendant place an object into the hole during the course of the investigation. Ibid. The Court stated, "We conclude 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." Id. at 213.
Here, the judge specifically found that the officers were not engaged in a pretext when they ordered defendant out of the car and were about to frisk him for their own safety. The judge clearly credited Larmore's testimony that Turbett ran around the back of the Jeep, called out that defendant had a "clear plastic bag" partially hanging out of his pants pocket, and seized it, all before Larmore could frisk defendant. The judge determined, however, that without Turbett's testimony, she could not conclude that his seeing the plastic baggie was an "inadvertent fortuity." However, in light of the precedent we have cited, the plain view exception no longer requires such a serendipitous event. The proofs established the second prong of the plain view exception.
In considering the third prong of the plain view analysis, the judge mused that "it [was] possible that Turbett may have had reason to believe that the bag contained CDS or other drug-related contraband," but without his testimony to describe the bag, she was unable to decide "what [he] knew at the time of the seizure." The judge also noted that "Turbett [was] a police lieutenant assigned to the Narcotics Unit and likely ha[d] vast experience in narcotics[] investigations[,] and so "the criminality of the bag, perhaps as common packaging material, was immediately apparent to him. Thus, it may have been entirely reasonable for Turbett to have removed the bag allegedly protruding from [d]efendant's change pocket." However, in the absence of Turbett's testimony, the judge could not "determine if there was criminality associated with the bag that was 'immediately apparent' to the officer."
"[T]he 'immediate apparent' prong requires the Court to determine whether probable cause existed to associate the [] object that was in plain view with criminal activity before seizing the object . . . ." Johnson, supra, 171 N.J. at 213. "[W]hen 'determining whether the officer has probable cause to associate the item with criminal activity, the court looks to what the police officer reasonably knew at the time of the seizure.'" Ibid. (quoting Bruzzese, supra, 94 N.J. at 237).
In this case, although Turbett did not testify, Larmore, in specific response to a question posed by the judge, described the bag as a "sandwich" size bag that contained several smaller bags. He also testified that based upon his experience and training, those who trafficked in narcotics would package the drugs in clear plastic bags that contained other smaller bags. Turbett was a lieutenant, Larmore's supervisor, who, as the judge noted, likely had vast experience in the narcotics field.
At the time he first announced that defendant had a clear plastic bag in his pocket, Turbett knew, as did Larmore, all of the information contained in the citizens' and the confidential informant's tip. In fact, Larmore specifically testified that the confidential informant conveyed the information directly to Turbett, not him. Turbett also knew all that had transpired since he and his partner had set up their surveillance of the intersection.
When the officers approached defendant's car, it was Turbett who saw defendant's movements of his right side, and it was Turbett who told Larmore to order defendant out of the vehicle. When defendant was placed against the side of the car and Turbett ran around the back of the vehicle to assist Larmore, Turbett had the view of defendant's right side and announced to his partner that defendant had a clear plastic bag protruding from his pants pocket.
These are the facts found by the judge without the benefit of Turbett's testimony. We must conclude that "[t]he totality of the circumstances here 'warrant[ed] 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.'" Johnson, supra, 171 N.J. at 219-20 (alterations in original) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502, 514 (1983)). The third prong of the plain view exception was demonstrated by the proofs adduced at the evidentiary hearing in this case.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION