Opinion
DOCKET NO. A-4134-14T3
03-09-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. S.H., Defendant-Respondent.
W. Brian Stack, Assistant Prosecutor, argued the cause for appellant (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Stack, of counsel and on the brief). Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Nugent and Higbee. On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 13-10-0667 and 13-10-0668. W. Brian Stack, Assistant Prosecutor, argued the cause for appellant (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Stack, of counsel and on the brief). Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, of counsel and on the brief). PER CURIAM
On our leave granted, the State of New Jersey appeals from an April 7, 2015 interlocutory order suppressing the admission of a handgun discovered by police during a motor vehicle stop of a vehicle driven by defendant S.H. Following the stop, the validity of which is not contested, defendant was taken into custody pursuant to an outstanding warrant. When an officer opened the center console compartment, intending to place the vehicle's registration and insurance card inside, a gun was discovered. Following an evidentiary hearing, the judge concluded the discovery was the result of an illegal warrantless search and granted defendant's motion to suppress. On appeal, the State argues:
POINT [I] .We affirm.
THE TRIAL COURT ERRED IN CONCLUDING THAT OFFICER SINCAK EXCEEDED THE SCOPE OF DEFENDANT'S CONSENT BY RETURNING THE CREDENTIALS TO THE CENTER CONSOLE.
POINT [II] .
THE TRIAL COURT ERRED BY MISAPPLYING THE INADVERTENCY REQUIREMENT.
POINT [III].
THE INADVERTENCY REQUIREMENT OF THE PLAIN VIEW DOCTRINE SERVES NO CONSTITUTIONAL PURPOSE, PARTICULARLY IN THE CONTEXT OF A PLAIN VIEW DISCOVERY OF CONTRABAND OR DANGEROUS ITEMS.
By order dated June 30, 2015, we permitted the State's brief, filed in support of its motion for leave to appeal, to serve as its merits brief. Consequently, Point I sets forth arguments to support interlocutory review, which we have omitted and renumbered the remaining arguments on appeal.
The relevant facts are taken from the evidentiary hearing held to review defendant's motion. The State presented testimony from Sergeant Phillip Rizzo and Officer Amber Sincak, the Franklin Township Police Officers involved in defendant's arrest.
A third officer, Sergeant Gregory Price, also testified how he responded to the scene of the stop and saw the weapon found in the center console compartment.
Sergeant Rizzo and Officer Sincak noticed defendant operating a white Chevrolet Impala with front end damage, a flat tire, and a damaged wheel well. The vehicle had two occupants and Sergeant Rizzo believed the vehicle was unsafe as it was riding on three wheels. After following the vehicle for several blocks, the officers stopped the car. Defendant provided the vehicle's registration and insurance card, but he failed to produce a valid driver's license. Defendant was asked to step out and stand at the rear of the vehicle. Defendant cooperated and admitted his license was suspended. During this time, Officer Sincak stood by the passenger side of the car.
After running a check, Sergeant Rizzo learned of an outstanding bench warrant for defendant. He informed defendant he was under arrest, handcuffed him, and issued summonses for motor vehicle violations. Defendant's passenger also did not have a driver's license. Accordingly, procedure required police to impound the vehicle. Defendant requested his registration and insurance card "be put . . . back in the car" so they would be available when his girlfriend retrieved the vehicle from the impound lot.
A transport patrol car was summoned to take defendant to headquarters and a tow truck was called. Defendant was then removed from the scene. Sergeant Rizzo informed the passenger, who remained in the passenger seat, he was free to leave and the car was prepared for towing.
Sergeant Rizzo testified he handed defendant's documents to Officer Sincak. Intending to place the documents in the car as defendant requested, she entered the driver's side and opened the center console. Sergeant Rizzo saw a black .38 caliber revolver with blue painter's tape on the grip, yelled "gun" and pulled the passenger from the car. Examining the weapon, he determined it was loaded.
Officer Sincak testified and corroborated the facts regarding the stop and defendant's arrest. She confirmed she received defendant's documents with the request to "leave the documents in the car." Discussing that action, she stated the passenger remained seated in the car "leaning on the center console . . . looking at it and leaning on it." She opened the driver's side door because the window was not functioning, then opened the center console "[t]o secure the documents." She saw the gun and Sergeant Rizzo pulled the passenger from the vehicle, placing him under arrest.
Subsequent to defendant's arrest, the Impala was towed to police headquarters. A warrant was obtained. The subsequent search yielded a sawed-off shotgun and ammunition. The order under review reserved the determination of whether the weapon was admissible.
In a written opinion, the judge found the motor vehicle stop was lawful, applying the police's community caretaking function for the protection of defendant, his passenger and others using the roadways. Further, defendant's detention properly resulted because he did not have a valid driver's license. However, the judge rejected the State's claim the seizure of the handgun was constitutional and granted defendant's motion to suppress.
The New Jersey Supreme Court recently expounded on the standard of review applicable to our consideration of a trial judge's fact-finding on a motion to suppress.
We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Deference to those findings is particularly appropriate when the trial court has the "'opportunity to hear and see the witnesses and to have the feel of the case, which a
reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Ibid. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo." State v. Vargas, 213 N.J. 301, 327 (2013).An appellate court remains mindful not to "disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Rather, we reverse only when the court's findings "are so clearly mistaken 'that the interests of justice demand intervention and correction[,]'" ibid. (quoting Johnson, supra, 42 N.J. at 162), or when the judge has mistakenly applied the law. Vargas, supra, 213 N.J. at 327.
[State v. Watts, 223 N.J. 503, 516 (2015).]
When analyzing a warrantless search and seizure, we start with the parameters defined by our Federal and State Constitutions.
In nearly identical language, Article I, Paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution guarantee that "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" and that warrants shall not issue in the absence of "probable cause."Thus, warrantless searches and seizures are presumptively invalid, State v. Brown, 216 N.J. 508, 527 (2014), and police must first secure a warrant before conducting a search. Watts, supra, 223 N.J. at 513; State v. Reece, 222 N.J. 154, 167 (2015).
[State v. Witt, 223 N.J. 409, 421-22 (2015) (quoting N.J. Const. art. I, ¶ 7; U.S. Const. amend. IV).]
A warrantless search may be sustained if the State demonstrates "the search fits within an accepted exception." State v. Coles, 218 N.J. 322, 337 (2014). See also State v. Hill, 115 N.J. 169, 173-74 (1989) (identifying possible exceptions to the warrant requirement). The State bears the burden of proving the search was constitutional. State v. Edmonds, 211 N.J. 117, 128 (2012). If property is seized illegally, it must be suppressed. State v. Handy, 206 N.J. 39, 45-46 (2011).
Here, the State maintains the motion judge "erred in concluding Officer Sincak exceeded the scope of defendant's consent" as it was "objectively reasonable" to place defendant's documents inside the center console. Alternatively, the State maintains the gun was found in plain view. We are not persuaded.
One delineated exception to the warrant requirement results when consent to perform the search is obtained. Coles, supra, 218 N.J. at 337. If "the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent." State v. Domicz, 188 N.J. 285, 307 (2006) (quoting State v. Johnson, 68 N.J. 349, 353-54 (1975)). See also State v. Carvajal, 202 N.J. 214, 230 (2010) (noting to establish consent the State must demonstrate the party had knowledge of right to refuse consent). Also, "the scope of a consent search is limited by the terms of its authorization." State v. Santana, 215 N.J. Super. 63, 72 (App. Div. 1987).
The State's argument does not square with the legal principles underpinning the consent-to-search exception. In fact, suggesting Officer Sincak's conduct was not a search is erroneous. The closed compartment of the vehicle was an area where defendant held a reasonable and legitimate expectation of privacy, making its opening automatically a search.
As a general rule, the police must have reasonable and articulable suspicion an individual has engaged in, or is about to engage in, criminal activity before being permitted to request consent to search a motor vehicle following a stop. State v. Carty, 170 N.J. 632, 647 (2002). This New Jersey Constitutional requirement "serves the prophylactic purpose of preventing the police from turning a routine traffic stop into a fishing expedition for criminal activity unrelated to the stop." Ibid. Importantly, "the reasonable and articulable suspicion standard governing consent searches of cars validly stopped equally applies to disabled cars on our roadways." Elders, supra, 192 N.J. at 230-31. "A consent search of a validly stopped car without the requisite suspicion will result in exclusion of the evidence at trial." Id. at 230.
The State also suggests Officer Sincak's conduct reasonably complied with defendant's request to place his documents in the vehicle because opening the center console is an accepted area to store credentials. We dispel this notion.
We reject as inapposite the State's reliance on authority allowing a limited search to locate credentials when the ownership of the vehicle must be verified. See, e.g., State v. Keaton, 222 N.J. 438, 448 (2015) (citing holdings permitting limited searches to find a vehicle's registration). --------
"The scope of a search extends to what is objectively reasonable, which is defined as what 'the typical reasonable person [would] have understood' the scope to include." State v. Hampton, 333 N.J. Super. 19, 29 (App. Div. 2000) (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1804, 114 L. Ed. 2d 297, 302 (1991)). To allow the scope of a consent search to extend to an area the officer decides is objectively reasonable turns our jurisprudence on its head.
Here, the police had no authority to even ask for defendant's consent to search the vehicle. Further, defendant's request to return the documents to the car did not include a statement to place them in the center console. Officer Sincak admitted she did not observe defendant retrieve the documents from the center console, nor was defendant asked for permission to open the center console. Further, no facts support a basis to form a reasonable suspicion defendant and his passenger were engaged in wrongdoing. The motion judge thoroughly analyzed the facts and correctly concluded the warrantless search was not saved by defendant's consent to place the documents back in the vehicle.
Besides consent, another recognized exception for the warrant requirement is the plain view doctrine. State v. Bruzzese, 94 N.J. 210, 235-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). To permit the seizure of contraband located in plain view: (1) the officer must be "lawfully in the viewing area"; (2) it must be "immediately apparent" to the officer that the items in plain view "were evidence of a crime" or are contraband; and (3) the evidence must be discovered "inadvertently." State v. Earls, 214 N.J. 564, 592-93 (2013) (quoting State v. Mann, 203 N.J. 328, 341 (2007)).
The State argues this exception justifies the seizure of the handgun when Officer Sincak lawfully opened the car and center console and inadvertently found the gun. In a related argument, the State challenges the motion judge's findings and urges the abandonment of the inadvertence requirement in line with holdings of the United State Supreme Court. We reject these arguments as meritless. R. 2:11-3(e)(2). We add these brief comments.
In view of our finding the search of the center console violated defendant's constitutional rights, the State cannot demonstrate Officer Sincak was lawfully in the viewing area. As to the inadvertence requirement of the plain view doctrine, "our courts have construed the New Jersey Constitution as affording New Jersey citizens greater protection against unreasonable searches and seizures than accorded under the United States Constitution." State v. Lamb, 218 N.J. 300, 313-14 (2014). The New Jersey Supreme Court has opposed abandoning the inadvertence requirement. In State v. Keaton, 222 N.J. 438 (2015), the Court reaffirmed:
A police officer may seize evidence in plain view without a warrant if the officer is "lawfully . . . in the viewing area" when he discovers the evidence, and it is immediately apparent the object viewed is "evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2003). "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.'" Id. at 206
(quoting [Bruzzese, supra, 94 N.J. at 236].).
[Id. at 448.]
Even if we were inclined to agree the opening of the center console was not a pretext for the police to locate contraband, see State v. Damplias, 282 N.J. Super. 471, 478-79 (App. Div. 1995), certif. denied, 154 N.J. 607 (1998), we could not ignore the act was an unconstitutional warrantless search.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION