STATE OF NEW JERSEY v. VICTOR NORWOOD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6249-04T46249-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR NORWOOD,

Defendant-Appellant.

________________________________

 

Submitted: May 23, 2006 - Decided June 26, 2006

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-05-1251.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Seelenfreund, Assistant Deputy Public Defender, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress, defendant Victor Norwood pled guilty to fourth-degree contempt for violation of a domestic violence restraining order, N.J.S.A. 2C:29-9 (count one); third-degree possession of cocaine with intent to distribute within l000 feet of school property, N.J.S.A. 2C:35-7 (count four); second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count five); and two counts of third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a) (counts seven and ten). Defendant was sentenced to an aggregate term of seven years with a two-year period of parole ineligibility, along with the statutorily-mandated fees and penalties. He appeals on the ground that the police violated his state constitutional rights by engaging in an unlawful search and seizure based either on the emergency aid doctrine or plain view exception to the warrant requirement. We are satisfied the search was valid under the plain view exception. Accordingly, we affirm defendant's conviction.

I

Patrolman Jeffrey White of the Asbury Park Police Department testified at the suppression hearing that on January l5, 2004, at 1:29 a.m., he and his partner Brian Townsend responded to a 9ll call reporting a domestic violence incident in progress at 3 Boston Way Village, Apartment 6. When they arrived at the apartment building, they entered the common hallway through an unlocked door and went to apartment 6, where they knocked on the door and announced their presence. Patrolman White testified that he heard children crying and people shuffling around inside the apartment, however, there was no response to the officers' repeated knocking. During this time, the officers received a radio call that someone was trying to flee from a window of the apartment. Moments later a woman, later identified as Ms. Ranier, also known as Ms. Oliver, answered the door. She was crying, had a visible laceration on the top of her forehead and had several drops of blood on the front of her shirt.

Upon hearing movement in the rear of the apartment, Patrolman White entered to investigate. He encountered defendant in the rear bedroom and observed him "holding up a mattress and placing what appeared to be plastic under it." Based on the officer's training and experience in the Narcotics Task Force Unit that drugs are commonly packaged in clear plastic sandwich bags consistent with what he saw defendant placing under the mattress, he concluded that defendant was attempting to secrete CDS. He also knew defendant from past encounters involving resisting arrest, assault on a police officer, and narcotics offenses, and was aware defendant had multiple open arrest warrants.

When the officer informed defendant he was under arrest, defendant dropped the mattress and fled the room. A struggle ensued, and defendant was eventually arrested after he bit Patrolman White and one of the backup officers. Patrolman White then walked into the bedroom, lifted the mattress, and retrieved what was later identified as fifty-six individually wrapped bags and one larger piece of crack cocaine. At headquarters the officer was informed by the victim that she had a final restraining order against defendant, which was entered on October 21, 2002.

Defendant acknowledged the existence of the restraining order against him but claimed he and Rainer were under the impression the order had expired after a year. He admitted, however, that Ranier did not want him in the apartment that night and was yelling at him to leave, that he was high on marijuana and cocaine, and that there was a disturbance in the apartment that caused a neighbor to call the police. He denied that Ranier had a laceration on her head or blood on her face as testified to by the officer and depicted in the photographs introduced into evidence. Defendant admitted he stashed the drugs under the mattress but claimed he did it contemporaneously with hiding about $700 in the closet while the officers were knocking on the door, to avoid being in possession of the items if arrested for the outstanding warrants. According to defendant, he was just standing by the window watching for a friend to pick him up when the officer entered the room, and the officer just had a "gut feeling" to lift up the mattress.

In denying defendant's motion to suppress, Judge Mellaci credited the officer's testimony and rejected defendant's version that he placed the drugs under the mattress before the officer gained entry. The judge found defendant lacked an expectation of privacy in the bedroom of the victim's apartment due to the active final restraining order that forbade him from being in her apartment. The judge also found the officer's entry to be lawful under the emergency aid doctrine and the seizure of drugs to be lawful under the plain view doctrine.

II

Defendant does not challenge the judge's finding that he had no expectation of privacy in the apartment as a result of the domestic violence restraining order. He concedes that applying the Frankel test, and in light of the trial court's credibility findings, the emergency aid doctrine justified the officers' warrantless entry into the apartment, the walk-through into the bedroom and defendant's subsequent arrest on the basis of the previously existing warrants. He contends, however, that the ensuing search was impermissible because the emergency aid doctrine no longer provided a rationale for the police conduct, and the plain view exception was neither factually nor legally applicable.

We are not persuaded by defendant's arguments. We are satisfied the trial judge correctly denied defendant's suppression motion under the plain view exception to the warrant requirement. To establish the lawfulness of a search under the plain view doctrine, the State must meet a three-pronged test: first, the officer must lawfully be in the viewing area; second, 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;" and third, the officer must have "probable cause to associate the property with criminal activity." State v. Johnson, 171 N.J. 192, 206-207 (2002) (citations omitted).

We are obligated to give deference to the findings of the trial judge, which are substantially influenced by his or her opportunity to hear and see the witnesses and have the feel of the case that we do not enjoy upon appellate review. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). Our scope of review is to determine whether the findings could reasonably have been reached on sufficient credible evidence presented in the record as a whole. Locurto, supra, 157 N.J. at 471; Johnson, supra, 42 N.J. at 162. Defendant does not contest that Patrolman White lawfully responded to the apartment under the emergency aid doctrine and lawfully entered the bedroom in furtherance of that duty, which was the viewing area of defendant and the mattress. There is ample evidence in the record to sustain the trial judge's factual finding crediting Patrolman White's testimony that he observed defendant place the plastic item under the mattress, as opposed to defendant's claim that he had already hidden the drugs before the police entry. Furthermore, contrary to defendant's assertion, the officer had more than a "hunch" or "suspicion" that the bag contained drugs. Patrolman White's belief that defendant was attempting to conceal narcotics was based on the officer's training and expertise in the Narcotics Task Force Unit and his knowledge that drugs are commonly packaged in clear plastic sandwich bags consistent with what he saw defendant placing under the mattress. In addition, he recognized defendant from other drug involvement and criminal activity. In light of the totality of the circumstances that include Patrolman White's experience, the description of the plastic object and the officer's recognition of defendant, we are satisfied it was entirely reasonable for the officer to reach that conclusion. Johnson, supra, 171 N.J. at 218-19.

Affirmed.

 

During his guilty plea, defendant testified he was aware on January l5, 2004 that the restraining order against him was still in effect and that he knowingly violated the order by going over to the victim's apartment.

State v. Frankel, 179 N.J. 586, 598 (2004) (providing "the contours of the emergency aid exception to the warrant requirement").

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A-6249-04T4

June 26, 2006