STATE OF NEW JERSEY v. NICHOLAS O. BLOOMFIELD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1933-04T41933-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICHOLAS O. BLOOMFIELD,

Defendant-Appellant.

______________________________

 

Submitted March 21, 2006 - Decided October 23, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Somerset

County, 02-04-0203.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Ingrid A.

Enriquez, Designated Counsel, on the

brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Frank Muroski,

Deputy Attorney General, of counsel

and on the brief).

PER CURIAM

After his motion to suppress evidence obtained by a warrantless search was denied, defendant pled guilty to charges of third-degree shoplifting, N.J.S.A. 2C:20-11b; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and tampering (fourth-degree), N.J.S.A. 2C:28-6(1). The plea was entered as the result of a negotiated agreement and defendant was sentenced to a three-year probationary term conditioned on "248 days of time served in the Somerset County Jail." Appropriate fines and penalties were also imposed.

Defendant appeals from both his conviction and the sentence imposed. He asserts that the motion to suppress should have been granted and that the sentence was imposed without consideration of an applicable mitigating factor. We reject these contentions and affirm both the conviction and the sentence.

The evidence developed at the suppression hearing was accurately summarized by the judge in his July 12, 2004, oral decision as follows:

On Friday, March eighth 2002 at 4:30 p.m., the defendant, Nicholas Bloomfield and his co-defendants, Joel James Foo and Phillip Hinton entered the Watch Station store located on the third floor of the Bridgewater Commons Mall. At that time, the defendant approached store manager Carol Bernath, and asked her about fixing his watch band. While speaking to Bloomfield, Ms. Bernath noticed Mr. Foo and Hinton near the display case near Techno Marine watches. Despite the defendant's attempts to block her view, Ms. Bernath saw Foo open the locked case. Once Bernath realized he was attempting to distract her, she moved towards Foo and Hinton. At this time Foo left the store while Hinton followed.

Employee Destiny Suggs followed the defendant into the mall and into the parking lot in an attempt to stop Hinton. Meanwhile, Ms. Bernath telephoned the Bridgewater Police Department to report the suspected theft. Ms. Bernath described the defendants as young black males between the ages of 18 and 22, one wearing dark sweat pants, one with a leather jacket, and black nylon cap, and one wearing a Mickey Mouse shirt.

The police communications dispatched patrols to the mall. Officer Bauman was in the area patrolling the mall when the call went out over the police radio regarding the suspected theft. He proceeded to the west side exit of the third level parking deck where Ms. Suggs was waving at him to stop. Ms. Suggs identified herself as a Watch Station employee and advised that Mr. Hinton was one of the three men who stole the watches from the store. Officer Bauman noticed that Mr. Hinton's clothing matched the description of the suspect's clothing as relayed over the police radio.

Mr. Hinton was wearing a black baseball cap, black sweat pants and a black shirt with a silver Mickey Mouse picture on the front. Officer Bauman asked Mr. Hinton if he had been in the store, to which he answered in the affirmative. The Officer noticed Mr. Hinton putting his hands in and out of his pockets, although he testified today that he placed them on his waist, not necessarily in his pocket. At this point, Officer Bauman patted down Hinton and located a sports jersey with the price tag still attached in his right ankle area.

Officer Bauman asked Mr. Hinton if he had a receipt for the shirt, for which Hinton replied, "No, I always keep the tags attached to my clothing, or clothes."

During the pat-down, Officer Bauman also noticed a silver Techno Marine watch on Hinton's wrist. The Officer asked Mr. Hinton if the watch was his, and he answered: "Yeah, I'm wearing it, ain't I?" Officer Bauman asked Hinton to remove the watch and he noticed the price tags were still attached. When asked if he had a receipt, Mr. Hinton stated "No, I told you before, I always leave the tags on my clothes." The Officer asked him if he had been in the store with two other friends. Mr. Hinton said, "Yes, but I don't know where they are." After Officer Bauman inspected the watch, he asked Ms. Suggs if it was a watch from her store. She indicated that it was.

Officer Slepokura went to the Watch Station with the watch Hinton had removed from his wrist. He confirmed with Ms. Bernath through the SKU number that the watch was, in fact, from their store. Upon Hinton's arrest, the police removed the contents of his pants pocket, and placed them on the hood of Officer Bauman's patrol vehicle. Among those items were a set of car keys and a keyless entry remote control. The control had a panic button on it. Officer Ricci pressed the panic button which then sounded the horn of a nearby Dodge Neon.

Officer Ricci and Detective Dinan responded to the vehicle, and observed Mr. Foo crouching down in the driver's seat, and Mr. Bloomfield slouching down in the back passenger side seat. Both defendants matched the description of the suspect.

After police observed the defendants inside the Dodge, Officer Ricci approached the driver's side of the car and advised Mr. Foo why he was there, and directed him to exit the automobile and produce identification. Detective Dinan directed that Mr. Bloomfield could exit the car and produce identification.

While waiting for Mr. Foo to provide identification, Officer Ricci attempted to disengage the car alarms. And in doing so, the Officer accidentally pushed the trunk button, opening the trunk. Detective Dinan was standing near the trunk and observed a large black open plastic garbage bag containing what appeared to be several sneakers and numerous pieces of clothing with sales tags still attached. Officer Ricci also noticed two sports jerseys not packaged, and sales tags still attached on the floor behind the driver's seat.

Believing these items to be stolen, Officer Ricci entered the vehicle and retrieved them. As he retrieved the jerseys, he noticed four watches with sales tags on them in a mesh liner on the rear of the driver's seat. The Officer retrieved those items as well. Additionally, the Officer checked an unlocked center console, located three additional watches, noted that watches were the same brand as those sold at the Watch Station.

Officer Ricci asked Mr. Foo if he had receipts for the items found inside the vehicle, to which Mr. Foo said the clothes and watches were not his.

When Ms. Bernath identified Mr. Foo and Mr. Bloomfield as the other two defendants, they were arrested and placed in separate patrol vehicles. Officer Ricci entered the trunk and retrieved the bag that Detective Dinan had observed. Officer Ricci found four new right-footed sneakers, one sports jersey shirt, one sweater, and ten Techno Sport watches. At the Police Department the officers confirmed that the merchandise found in defendant's vehicle was stolen. The defendants were Mirandized as well.

Mr. Hinton exercised his rights and Mr. Foo denied any knowledge of the thefts.

Mr. Bloomfield admitted that he and his co-defendants drove from New York to New Jersey intending to shoplift from stores. He stated that his job was to distract the sales person while Mr. Foo and Mr. Hinton committed the thefts. He indicated that they were going to sell the merchandise and that he was to receive some of the proceeds therefrom.

Those facts are not in meaningful dispute and are supported by substantial credible evidence in the record. We, therefore, defer to those factual findings on appeal. State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993); State v. Boone, 114 N.J. Super. 521, 525 (App. Div.), certif. denied sub nom., State v. Terry, 58 N.J. 595 (1971). We do not, however, afford any deference to the legal conclusions drawn by the motion judge from those facts. Manalapan Realty, L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995). In accordance with these principles, we consider the linked searches ultimately leading to defendant and the contraband contained in the car in which he was found.

The State initially challenges defendant's standing to raise an objection to the search of his co-defendant Hinton. Based on our review, however, we are persuaded that such standing exists. See State v. Mollica, 114 N.J. 329, 339-340 (1989) (standing to object to a search exists when the objecting party has a "participatory interest" or "culpable role" in the crime giving rise to the seizure).

We begin our analysis with the initial encounter between the police and co-defendant Hinton. Officer Bauman's questioning of Hinton was constitutionally permissible. Such questioning may occur without a warrant "if it is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88

S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). Ms. Bernath's identification of Hinton as one of the individuals involved in the theft creates the reasonable suspicion of criminal activity justifying the stop.

Defendant argues, however, that Officer Bauman had no authority to conduct a "pat-down" search of Hinton. Such a search is typically conducted, under the authority of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), when there is reason to believe the person being questioned is armed. Because Officer Bauman admitted that he did not suspect Hinton was armed, defendant argues that the search was impermissible. That argument would have merit if Terry were the only authorization for a pat-down, but it is not.

Such a search may also be conducted "when an officer has probable cause to believe that a crime has been or is about to be committed and the officer is faced with exigent circumstances." State v. Nishina, 175 N.J. 502, 515 (2003). "Probable cause exists if at the time of the police action there is a well-grounded suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001) (internal citation and quotation marks omitted). What is necessary is "a practical, common-sense decision [that], given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Johnson, 171 N.J. 192, 214 (2002) (internal citation and quotation marks omitted) (alteration in original).

The record demonstrates that at the time of the initial encounter between Officer Bauman and Hinton, there were circumstances supporting more than a "fair probability that contraband or evidence of a crime" would be found on Hinton. He was identified as one of the individuals involved in a theft from the Watch Station. The identification was strengthened by his admission that he had been in the store. It was likely that the stolen property would be found on the individuals involved in its theft.

The exigent circumstances were apparent: other individuals were involved; the police were required to divert resources to locating those individuals and it was impractical to devote resources to guard Hinton; the investigation was proceeding rapidly; and there was no time to obtain a warrant. Exigent circumstances existed. See State v. Cooke, 163 N.J. 657, 675 (2000).

The pat-down of Hinton was authorized, not by Terry, but by Nishina. Although the motion judge analyzed the search of Hinton pursuant to Terry, the judge was correct in concluding that the search was proper. We, therefore, continue by considering the actions taken by the police as a result of the evidence produced by that search.

The jersey and the watch located by the search provided

confirming evidence of Hinton's involvement in the theft from the Watch Station and, perhaps, from other stores. The police were entitled to utilize the key taken from Hinton in an attempt to locate his car, in which his confederates might reasonably be expected to be found. Once having located the car, and while removing the occupants, the officers noticed contraband in plain sight in the passenger cabin. The observation was made while the officers were permissibly located and the seizure of those items offended no constitutional prohibition. See State v. Moller, 196 N.J. Super. 511, 515 (App. Div. 1984).

The parties have spent some time discussing the seizure of the items located in the trunk, which the police claimed was opened inadvertently when the keyless entry was pressed, and from the center console which was closed and opened by the police during the search of the vehicle. We need not discuss in detail the circumstances under which either the trunk or the center console was opened because we are satisfied that the automobile exception to the warrant requirement justified the search of the car.

We have recently discussed the considerations utilized in evaluating the constitutionality of a warrantless search of a vehicle. See State v. Carroll, 386 N.J. Super. 143 (App. Div. 2006). Generally, a warrantless search will pass constitutional muster when probable cause to believe that contraband will be found in the vehicle is accompanied by exigent circumstances. State v. Cooke, 163 N.J. 657, 671 (2000).

There is no question that the police had probable cause to suspect the vehicle contained contraband. Probable cause is a "well-grounded suspicion" that contraband will be located in the vehicle. State v. Alston, 88 N.J. 211, 231 (1981). Here, aside from the evidential link between an identified thief and a car containing confederates, the officer was able to see articles which he would clearly understand to be contraband in light of the sales tags remaining attached to them and the similar article taken from Hinton during the search of his person. There is every reason to believe that other articles of contraband would be found.

The judge was entitled to conclude that exigent circumstances existed. Exigent circumstances must be defined on a case-by-case evaluation. State v. Cooke, supra, 163 N.J. at 671. Many of the factors that led the court to conclude exigent circumstances existed in Cooke were present here: it would not have been practical to require an officer to stand guard over the vehicle while a warrant was obtained. See State v. Carroll, supra, 386 N.J. Super. at 159 ("Even if multiple officers were present, we do not find that the police needed to 'stand guard' . . . while concurrently applying to a judge for a search warrant") (citations omitted); the vehicle was found in the parking lot of a commercial center where it was available to third parties. Ibid.; and the investigation proceeded rapidly and unexpectedly.

Defendant argues that "there was no third party as in Cooke, who represented a threat that the items would be stolen if left in the vehicle . . . ." We believe this overstates the holding in Cooke. Although, in that case, there were identifiable individuals ready to remove the contraband from the vehicle if left unattended, Cooke requires only that the vehicle be "potentially accessible to third persons who might . . . remove or destroy evidence contained in it." Cooke, supra, 163 N.J. at 672 (quoting State v. Alston, 88 N.J. 211, 234 (1981)). The facts and circumstances revealed in this record, in our view, meet this requirement. The car was parked in a shopping center parking lot, the police were aware that there was a group of confederates involved in the thefts, some of whom were hiding in the car. At the time, however, it was not clear that all of the participants were in the vehicle and certainly not clear that those in the car represented all of those "third persons who might . . . remove or destroy evidence contained in it." Ibid. Accordingly, the search of the vehicle was justified by the automobile exception.

Each of the actions taken by the police, beginning with the stop and search of Hinton; continuing through locating and searching the vehicle; and concluding with the search and questioning of defendant at the station, were justified by constitutional principles governing searches and seizures. The motion to suppress was properly denied.

Defendant also argues, for the first time on appeal, that hearsay evidence was impermissibly used by the State. It is generally true that hearsay is admissible at a suppression hearing. See State v. Bynum, 259 N.J. Super 417, 420 (App. Div. 1992), N.J.R.E. 104(a). Nevertheless, the failure to raise the issue before the motion judge precluded a reasoned consideration of the question and foreclosed the possibility that the State could call the store employees to cure the claimed evidentiary defect. Under those circumstances, we decline to consider the question. See State v. Arthur, 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

 
Defendant's final claim is that his sentence was imposed without consideration of the mitigating factor described in N.J.S.A. 2C:44-1b(12), relating to defendant's cooperation with law enforcement. The only "cooperation" extended by defendant was his confession in the face of overwhelming evidence of his guilt. The argument that such "cooperation" merits treatment as a mitigating factor is without sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

The sentence was more lenient than the plea agreement, which called for incarceration for 365 days as a condition of probation.

Defendant's brief omits the mandatory disclosure that no objection to the admission of the testimony was raised below. See R. 2:6-2(a)(1).

(continued)

(continued)

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A-1933-04T4

October 23, 2006