STATE OF NEW JERSEY v. ABRAHAM WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2443-04T42443-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABRAHAM WILLIAMS,

Defendant-Appellant.

__________________________

 

Submitted April 25, 2006 - Decided May 8, 2006

Before Judges Collester, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-11-1465.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Brigliadoro, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Leslie-Ann Justus, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, Abraham Williams was convicted of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5(b)(3), and possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-5a(1) and -7. He was sentenced to four years in prison. He appeals from the conviction and the sentence. We reverse the conviction based on State v. Eckel, 185 N.J. 523 (2006).

These were the essential facts. A Lakewood Township police officer found Williams asleep in a car parked in a playground parking lot at 3:30 a.m. When the officer roused defendant by shining a flashlight into the vehicle, he observed defendant place a small yellow object on the floor:

He actually leaned forward and attempted to adjust his seat as he placed a yellow object on the floor in front of his seat.

When a check of defendant's driver's license revealed an outstanding arrest warrant, the officer arrested Williams, despite his insistence that the warrant was for a different person with the same name. After searching him and finding no weapons, the officer handcuffed Williams and placed him in the back of his patrol car. While Williams was secured in the patrol car, the officer proceeded to search Williams' car without first obtaining a search warrant. During the search, the officer recovered a small yellow container, about the size and shape of a toothpaste tube, from under the driver's side seat. He opened the container and found three small bags, each containing a substance that upon testing proved to be crack cocaine. The State's case at trial hinged upon this seized evidence.

On May 10, 2004, defendant made a pre-trial motion to suppress the evidence on the grounds that the warrantless search of his car was unconstitutional. The trial court denied the motion, holding that it was a lawful search incident to defendant's arrest. And although the police officer "didn't testify as to whether he knew what [the] yellow object was" when he first saw defendant place it under his seat, the judge concluded that the seizure of the yellow tube was lawful because it "was in plain view." The judge also concluded, without further discussion, that the officer "would have been remiss had he secured the vehicle without seeing what was in [the yellow container], since it was placed on the floor by the defendant at the time he was roused and awakened."

On this appeal, defendant raises the following issues:

POINT I: THE EVIDENCE SEIZED FROM THE DEFENDANT'S VEHICLE SHOULD HAVE BEEN SUPPRESSED BECAUSE A). THE POLICE DID NOT EFFECTUATE A VALID ARREST OF DEFENDANT AND B). ASSUMING ARGUENDO THE ARREST WAS VALID, THE SEARCH DID NOT FALL WITHIN THE SEARCH INCIDENT TO A LAWFUL ARREST OR PLAIN VIEW EXCEPTIONS TO THE WARRANT REQUIREMENT.

A). The evidence seized from the defendant's vehicle should have been suppressed because the police did not effectuate a valid arrest of defendant.

B). The evidence seized from the defendant's vehicle should have been suppressed because assuming arguendo the arrest was valid, the search did not fall [within] the search incident to a lawful arrest or plain view exceptions to the warrant requirement.

POINT II: THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANT'S PRIOR CONVICTION FOR CONSPIRACY TO TAMPER WITH EVIDENCE COULD BE USED TO IMPEACH HIS CREDIBILITY THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. (U.S. CONST. AMEND. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS 9 AND 10).

POINT III: THE TRIAL COURT'S FAILURE TO GIVE ADEQUATE JURY INSTRUCTIONS WITH RESPECT TO HOW TO EVALUATE PRIOR CONVICTION EVIDENCE, DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW. U.S. CONST. AMEND XIV, N.J. CONST. ART. I, PAR. 1.

POINT IV: THE COMMENTS MADE BY THE PROSECUTOR IN HER SUMMATION AMOUNTED TO PROSECUTORIAL MISCONDUCT THEREBY DENYING THE DEFENDANT HIS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 9 AND 10.

POINT V: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL MADE AT THE END OF THE STATE'S CASE BECAUSE THE STATE FAILED TO ESTABLISH THAT DEFENDANT CONSTRUCTIVELY POSSESSED THE NARCOTICS WHICH WERE FOUND IN THE MOTOR VEHICLE AND THERE WAS ABSOLUTELY NO EVIDENCE TO CONNECT THE DEFENDANT WITH THE DISTRIBUTION OF DRUGS.

POINT VI: THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND CONSTITUTED PLAIN ERROR.

POINT VII: THE FAILURE OF TRIAL COUNSEL TO REQUEST A SANDS HEARING, TO OBJECT TO THE JURY CHARGE AND THE PROSECUTOR'S SUMMATION AND TO MOVE FOR A NEW TRIAL AFTER THE JURY VERDICT AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT VIII: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE TRIAL COURT'S DISCRETION AS IT FAILED TO PROPERLY WEIGH AGGRAVATING VERSUS MITIGATING FACTORS IN FASHIONING ITS SENTENCE, THEREFORE THE SENTENCE MUST BE MODIFIED BY THE REVIEWING COURT.

We need only address Point I. After the trial judge decided the motion to suppress, and after the briefs in this appeal were filed, the Supreme Court decided State v. Eckel, 185 N.J. 523 (2006). In Eckel, a case with essential facts indistinguishable from the case before us, the Court declined to follow New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), and held, based on Article I Paragraph 7 of the New Jersey Constitution, that

a warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger the police or destroy evidence cannot be justified under any exception to the warrant requirement and is unreasonable.

[Id. at 540.]

Consequently, the Court held:

Once the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable.

[Id. at 541.]

Eckel controls the result here and mandates reversal of defendant's conviction. Once the police had defendant secured in the back of the patrol car, they could not invoke the "search incident to arrest exception" to justify a warrantless search of his vehicle. Ibid.

The State's remaining arguments justifying the search are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comment. The officer's observation of the yellow object could not justify the search, because the object itself, while in plain view, was innocuous. And the officer did not testify that he believed, or had grounds to believe, that it contained contraband. Compare State v. Johnson, 171 N.J. 192, 213-19 (2002).

Reversed.

 

The warrant was for a different person, as the police subsequently learned. This fact, however, does not affect our decision.

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A-2443-04T4

May 8, 2006