STATE OF NEW JERSEY v. DERRICK JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1962-05T41962-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK JOHNSON,

Defendant-Appellant.

_____________________________

 

Argued February 28, 2007 - Decided June 27, 2007

Before Judges Stern and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, 05-03-0287-I.

Joel Harris argued the cause for appellant

(Yvonne Smith Segars, Public Defender, attorney

for appellant; Stephen M. Bunda, Designated

Counsel, of counsel and on the brief).

Julian L. Hill, Jr., Assistant Prosecutor,

argued the cause for respondent (Michael M.

Rubbinaccio, Morris County Prosecutor, attorney;

Joseph P. Connor, Jr., Assistant Prosecutor, on

the brief).

PER CURIAM

Following denial of his motion to suppress and motion to dismiss the indictment, defendant Derrick Johnson entered into a negotiated plea to unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d), and the motor vehicle offense of driving while suspended, contrary to N.J.S.A. 39:3-40. Counts of the indictment charging possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d), receiving stolen property, contrary to N.J.S.A. 2C:20-7(a), and possession of drug paraphernalia, contrary to N.J.S.A. 2C:36-2, were dismissed at the time of sentence pursuant to the plea agreement. On September 23, 2005, Judge Salem Ahto imposed the recommended sentence of one year probation with time served in addition to all mandatory fines and penalties.

On appeal defendant argues the following:

POINT I - SINCE THE SEARCH OF THE DEFENDANT'S VEHICLE SUBSEQUENT TO A LAWFUL STOP WAS UNREASONABLE AND IMPROPER, THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED.

POINT II - SINCE THE STATE COULD NOT PROVE BEYOND A REASONABLE DOUBT THAT THE KNIVES SEIZED WERE WEAPONS POSSESSED UNDER CIRCUMSTANCES NOT MANIFESTLY APPROPRIATE FOR LAWFUL USE, THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT IN ITS ENTIRETY.

Defendant's claim of an unlawful search and seizure is reviewable on appeal following a judgment based on a plea of guilty. R. 3:5-7(d). At the suppression hearing, Denville Police Officer Christian Sandman testified he was in his patrol car at 2:00 p.m. on January 5, 2005, when he received a State Police Emergency Network broadcast of a shoplifting at the Rockaway Townsquare Mall and that the suspect, a white male wearing a leather racing jacket, had fled in a white SUV with a large dent in the passenger-side door. As Sandman was entering Route 80 eastbound in Denville, he saw a vehicle matching the description in the left lane. As he pulled along side, Sandman tried to see the occupants, but the side windows were heavily tinted. He performed a computer lookup on the license plate, which indicated that defendant was the owner and had numerous outstanding traffic warrants and a suspended license.

Sandman pulled the SUV over and approached the passenger side. When the defendant rolled down the passenger window, Sandman saw that in addition to the front seat passenger there was a back-seat passenger, later identified as co-defendant Jason Greenberg, wearing a racing jacket. Denville Officer Brian Donnelly arrived to back up Sandman, and they decided to take the occupants of the vehicle out one at a time. Officer Sandman took the defendant out first and arrested him on the outstanding warrants, while Donnelly advised him of his rights. As they waited for Rockaway Township police to arrive, the two Denville officers told the two passengers to exit the SUV. As Greenberg got out, Sandman saw an unopened box containing a computer printer. Greenberg told the officer the printer had been stolen from the Target store at the Rockaway Townsquare Mall.

Rockaway Township police officers arrived and brought with them a representative of Target to identify the box containing the printer. As one of the officers went into the car to retrieve the printer, Sandman was standing by the passenger-side door. He looked inside and saw what was described as a meat cleaver or cheese cleaver and a small folding knife inside the driver's door. As he reached into get them, he found a seven-inch fillet knife with a bungee cord wrapped around the handle of the driver's door. Sandman testified that defendant admitted that the knives and cleaver were his and explained he had them in the SUV for protection in the area of Newark where he lived. He added that the bungee cord was wrapped around the fillet knife to give him a better grip.

Warrantless searches as presumptively unreasonable and therefore proscribed unless they fall within a recognized exception. State v. Wilson, 178 N.J. 7, 12 (2003). Here the State justifies the search under the "plain view" exception which recognizes police are not required to ignore the observation of contraband or other evidential items in plain view. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Plain view alone is insufficient to uphold a warrantless seizure unless the circumstances comport with the Fourth Amendment requirement of reasonableness. Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). To lawfully seize an item in plain view, the officer must be lawfully in the viewing area and must discover the item "inadvertently." It also must be immediately apparent that the item is contraband, evidence of a crime, or otherwise subject to seizure. State v. Johnson, 171 N.J. 192, 207 (2002).

Defendant does not dispute that the stop of the SUV was lawful and gave police the right to have him taken out of the vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 110-11, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). The description of the SUV and one of the perpetrators gave sufficient probable cause to believe that the occupants were involved in shoplifting at the Rockaway Townsquare Mall. Moreover, the observation from outside the vehicle of an unopened box marked as a computer printer constituted sufficient cause to remove it from the SUV. There was also ample testimony in the record to substantiate Judge Ahto's finding that the observation of the knives and cleaver by Officer Sandman was inadvertent based on his testimony he observed them while standing by the passenger door and looking through the open window. The observations of the cleaver and the pocket knife in the driver's side door pocket gave reason for seizure by Patrolman Sandman since it was immediately apparent that these knives were potential weapons. Therefore, we find that Judge Ahto properly denied defendant's motion to suppress the cleaver, pocket knife and the fillet knife that were subsequently observed when Sandman was removing other items.

Appellate consideration of the motion to dismiss was preserved as part of the negotiated plea and resultant conviction. It is settled that an indictment will not be dismissed except on the clearest and plainest grounds. State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984). To uphold an indictment, it is sufficient if the grand jury received evidence as to each element of the offense. State v. Holsten, 223 N.J. Super. 578, 583 (App. Div. 1988).

 
It is an offense to possess a weapon "under circumstances not manifestly appropriate for such lawful uses as it may have." N.J.S.A. 2C:39-5(d). The knives and cleaver were weapons under the definition of N.J.S.A. 2C:39-1(r). Indeed, defendant admitted that he had modified the handle of the fillet knife to make it more effective as a weapon. See State v. Lee, 96 N.J. 156, 159 (1984). We therefore conclude that Judge Ahto correctly denied the motion to dismiss the indictment.

Affirmed.

(continued)

(continued)

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A-1962-05T4

June 27, 2007