STATE OF NEW JERSEY v. AL-MUIZZ AUSTIN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1609-07T41609-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

AL-MUIZZ AUSTIN,

Defendant-Respondent.

_____________________________________

 

Submitted March 4, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-06-1445.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Al-Muizz Austin appeals from a December 2, 2005 Law Division order denying his motion to suppress evidence, i.e., controlled dangerous substances (CDS), found in his bedroom during a parole officer's home visit. Following a hearing, Judge Kennedy denied motions to suppress filed by defendant and co-defendant Sharif Wright. Thereafter, pursuant to the terms of a plea agreement with the State, defendant entered a guilty plea to two counts of third-degree possession of CDS (cocaine and heroin), N.J.S.A. 2C:35-10a(1). The State agreed to dismiss the remaining counts of the indictment, which included third-degree charges for conspiracy to possess CDS, N.J.S.A. 2C:5-2; two counts of possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and two counts of possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7.

Defendant was sentenced to two concurrent three-year terms of imprisonment, which were to run concurrently to the sentence resulting from defendant's parole violation. Additionally, defendant's driving privileges were suspended for two years and applicable fines and penalties were assessed.

On appeal, defendant argues:

THE HOME VISIT, WHICH WAS PLANNED AF[T]ER THE PAROLE OFFICER HEARD THAT DEFENDANT HAD BEEN CHECKED FOR WARRANTS[,] WAS A PRETEXT TO ALLOW A SEARCH OF DEFENDANT'S HOUSE AND BEDROOMS WITHOUT HAVING REASONABLE SUSPICION THAT THE CONDITIONS OF PAROLE HAD BEEN VIOLATED, IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE FOURTH AMENDMENT AND HIS RIGHT TO A FAIR TRIAL.

We affirm.

The following facts were presented through the testimony of Senior Parole Officer John Larkin, who was the sole witness appearing at the suppression hearing. Defendant had been paroled in August 2004, and received instruction regarding the supervisory conditions of parole prior to release. Defendant executed the mandatory supervision certificate, which contained the discussed terms. In pertinent part, the agreement requires a parolee to:

B. . . . [6] permit the assigned parole officer to visit [him] at any time at home or elsewhere and permit confiscation of any contraband observed in plain view by the parole officer [and]

. . . .

F. . . . [2] submit to a search conducted by the assigned parole officer, without a warrant, of [his] person, place of residence, vehicle or other personal property at any time the assigned parole officer has a reasonable or articulable basis to believe that the search will produce contraband or evidence that a condition of supervision has been violated, is being violated or is about to be violated and permit the confiscation of any contraband.

On February 9, 2005, Larkin was assigned as defendant's parole officer. On April 12, 2005, while conducting warrant executions with his partner, Michael Gonzalez, and a Newark Police Department detective, Jose Gonzalez, Larkin heard defendant's name and address broadcast on the police radio. A Newark patrolman asked central communications for a warrant search on defendant. Larkin responded to the transmission. First, he confirmed the request involved his parolee. Second, Larkin told the patrol officer that if defendant was not detained to inform him to return home because his parole officer would be visiting him later in the day. Larkin testified he had no prior intention of making a visit to defendant's home, but the patrolman's stop and warrant check prompted him to arrange to speak with defendant.

At approximately 1 p.m., Larkin and the two other officers arrived at defendant's residence. The officers found defendant standing outside the house speaking with two men in a parked car. Larkin approached defendant and the two men drove off. Larkin asked defendant to go inside. Larkin testified he needed to "verify that [defendant] did have a bedroom in the house, that his clothing was there, and that he was residing there."

Defendant, Larkin and the other officers entered the three-story, single family home. The officers entered through the front door, which led them to a common room. Adjacent to this room was the kitchen and a stairway leading to the second and third floors. Defendant told an unidentified man, who was sitting in the kitchen, they were going upstairs. The officers followed defendant, who unlocked a door to what he identified was his bedroom.

The bedroom contained a dresser, bed, picture of defendant, and clothing thrown across the bed. Inside the bedroom was a door to another room. Defendant opened the door and exposed a small room connected to his bedroom. He explained this was where he "hung out" with his cousin and played video games. Larkin stated he "peeked in just to make sure . . . that it was clear[.]"

Upon turning back towards defendant, Larkin noticed what he thought "was a folded glycine envelope of heroin" protruding from the right front pocket of a pair of pants strewn on defendant's unmade bed. Larkin asked defendant whom the pants belonged to. Defendant stated they were, in fact, his and he had worn them earlier in the day. Larkin took the pants and searched the pockets. He found ninety-nine decks of heroin, split into two separate packages, and $510.

Larkin confiscated the contraband and arrested defendant for violating his parole. After Larkin handcuffed defendant, Sharif Wright, defendant's cousin, walked into defendant's bedroom. He asked what was going on and told Larkin at times he stayed in the adjoining room. Larkin asked Wright to show him where he stayed. Wright led Larkin into the separate room, where Larkin noticed what he believed was crack cocaine in the open top drawer of a television stand. Larkin asked Wright what was in the drawer and Wright stated "that's my shit[,] man." Larkin arrested Wright and confiscated the sixty-six vials of crack cocaine.

In an oral opinion, Judge Kennedy credited Larkin's testimony and found his actions were consistent with his intent "merely to conduct a home visit." The court found a home visit included observation of the actual living quarters of the parolee, not just the common areas of the home, and concluded it was reasonable to view defendant's bedroom to determine his residency. Additionally, although there may have been a prior home visit by a different parole officer, Larkin was not precluded from conducting an additional "visit several months later to ensure that the defendant continues to reside there and that there are the indicia of . . . living arrangements there."

Judge Kennedy rejected defendant's argument that the officers conducted an illegal search, noting they did not look under the bed, open drawers, bags, or closet doors, they simply walked into the living quarters and looked around.

Furthermore, the court determined that despite the fact defendant was in custody, "nothing . . . foreclose[d] the officers from taking a second look in the claimed living area," which included the adjacent room. Defendant admitted he used the room for relaxing and playing video games so it could contain information bearing upon defendant's residency. Thus, the court found Larkin's decision to take a second look "did not break the chain of a routine and constitutionally unobjectionable home visit." The judge concluded the heroin and crack cocaine were found in plain sight during a valid home visit and, accordingly, denied the motions to suppress.

On appeal, defendant argues Larkin's home visit was a pretext to conduct an illegal warrantless search. The officers lacked a reasonable suspicion to search defendant's bedroom and adjacent room, and by doing so they violated defendant's rights guaranteed by the IV and XIV amendments of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution.

In reviewing a motion to suppress, we only determine whether the trial court's factual findings and legal conclusions are reasonably supported by the credible evidence present in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). We uphold the trial court's factual findings underlying its decision "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 244 (2007) (citing Locurto, supra, 157 N.J. at 474); State v. Alvarez, 238 N.J. Super. 560, 562 (App. Div. 1990). Our deference to a trial court's factual determinations results because such findings "are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 161). "[I]t is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment." State v. Emery, 27 N.J. 348, 353 (1958). We reverse only when the determination is "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162).

In New Jersey, a parolee remains in the legal custody of the Commissioner of Corrections and under the supervision of the State Parole Board. N.J.S.A. 30:4-123.59(a). As a condition of release, parolees agree to comply with all laws and refrain from committing new crimes, assent to periodically report to an assigned parole officer and advise of any change of address; and refrain from possessing firearms or other weapons, as well as the use, possession or distribution of CDS. See N.J.S.A. 30:4-123.59; see also, State v. Maples, 346 N.J. Super. 408, 412 (App. Div. 2002) (A parolee is required to sign a promise to abide by specific conditions of parole which shall include a requirement that the parolee comply with all laws and refrain from committing any crime.). The parole system advances the public policy of maintaining "public safety, reduc[ing] the likelihood of recidivism and [ensuring] the parolee's positive reintegration into the community." N.J.A.C. 10A:72-2.2.

The administration of the parole system is governed by Chapters 71 and 72 of Title 10A of New Jersey's Administrative Code. N.J.A.C. 10A:71-1.1 to N.J.A.C. 10A:72-9.14. Several provisions apply to the matter at hand. First, "each inmate must submit a proposed parole residence plan to the appropriate Board staff person" listing his or her proposed residence upon release. N.J.A.C. 10A:72-2.1(a). Next, a parolee is assigned a parole officer to investigate the plan, and to "ensure that the inmate has a suitable residence upon his or her release to the community." N.J.A.C. 10A:72-2.1(b) and (c). Finally, the parole officer must "[v]erify, in person, that the residence location is a valid address." N.J.A.C. 10A:72-2.1(d)(1).

Parole officers are given certain responsibilities to assure a parolee's compliance with the conditions of parole. For example, "where [a] residence is jointly owned or shared by a parolee and another person(s)," the parole officer may, pursuant to N.J.A.C. 10:72-6.3(b), "search all objects that appear to be owned or possessed by the parolee" and "[m]ay search any area of the residence or objects that are jointly shared by both the parolee and the other person, even if such other person(s) objects to the search." N.J.A.C. 10:72-6.3(b)(1) and (2). A search requires "a reasonable articulable suspicion to believe that evidence of a violation of a condition of parole would be found." N.J.A.C. 10:72-6.3(a)(1). "[A]ny item, article or material found in the possession of, or under the control of, [a] . . . parolee which is prohibited by conditions of parole and/or community release, or which is prohibited by the Criminal Code of the State of New Jersey" is contraband, N.J.A.C. 10A:72-1.3, and subject to seizure, N.J.A.C. 10A:72-7.1(a). Possession of contraband by a parolee is a violation of the conditions of parole.

Defendant argues Larkin's unauthorized actions exceeded his authority and violated his constitutional rights. The Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution safeguard individuals against unreasonable searches and seizures. State v. Bruzzese, 94 N.J. 210, 216-17 (1983); State v. Campbell, 53 N.J. 230, 233 (1969). A warrantless search of a residence has been deemed presumptively unreasonable. State v. Valencia, 93 N.J. 126, 133 (1983). "Indeed, one of this country's most protected rights throughout history has been the sanctity and privacy of a person's home." Bruzzese, supra, 94 N.J. at 217.

A warrant is generally required unless the search falls within the developed exceptions to the warrant requirement. State v. Alston, 88 N.J. 211, 230 (1981). Pretextual searches conducted in bad faith are "objectively unreasonable." Bruzzese, supra, 94 N.J. at 226. However, "if the validity of a search can be sustained independently on objective grounds demonstrating reasonableness," its integrity is not impugned by insignificant defects. State v. Guerra, 93 N.J. 146, 152 (1983).

We disagree with defendant's argument that Larkin should have confined his view to the common areas of the home. Parole regulations allowed Larkin to establish defendant resided at the location as he claimed, which reasonably includes proof of where he sleeps and dresses in the dwelling. Also, we reject defendant's contention Larkin's first view of defendant's bedroom verified he was living there and ended the home visit, precluding Larkin's second look around. Larkin did not leave defendant's room and reenter it as defendant implies. He merely turned from "peeking" into the adjacent game room to face defendant, who stood in his main sleeping area. The notion that Larkin should close his eyes once he initially viewed defendant's bedroom and ignore the visible "folded glycine envelope of heroin" protruding from defendant's jeans lying on the bed is specious. It is defendant who revealed his criminal conduct by not attempting to conceal the CDS. Once Larkin saw the drugs in defendant's bedroom area, a full look at the adjoining room, also used by defendant and connected to his bedroom, was permissible.

Additionally, defendant asserts the plain view exception to the warrant requirement is inapplicable here because Larkin's discovery was not inadvertent. Generally, evidence left in plain view may be seized without a warrant. Bruzzese, supra, 94 N.J. at 236 (adopting the plain view warrant exception set forth in Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed.2d 502(1983)). For an object to fall within the plain view exception to the warrant requirement, a police officer must have (1) observed the object from a lawful area; (2) discovered the object inadvertently; and (3) immediately recognized the objects as evidence of a crime, contraband, or otherwise subject to seizure. State v. Johnson, 171 N.J. 192, 206-07 (2002).

There is no basis to support defendant's contention. It is highly doubtful that after Larkin heard defendant's name broadcast on the police scanner he decided to make a home visit because he was prescient and expected defendant would plainly possess CDS. Although Larkin knew defendant was stopped by a patrol officer earlier that day, there was no expectation defendant was involved in a parole violation. Defendant had no prior criminal history involving drug possession or distribution. Even if Larkin had such thoughts, it would be irrelevant to the validity of this search. State v. O'Neal, 190 N.J. 601, 613-14 (2007); Bruzzese, supra, 94 N.J. at 219.

We conclude Larkin did not engage in a planned warrantless search. He had no advance information defendant possessed CDS and had no intention to seize evidence of a crime. State v. Padilla, 321 N.J. Super. 96, 109 (App. Div.), certif. denied, 162 N.J. 198 (1999). In our view, Larkin's desire to speak to defendant after he learned of his parolee's police encounter, and to recheck his residence and certify he was following the conditions of the parole, reflects the work of a conscientious parole officer who is fulfilling his obligations to defendant and the public to assure defendant's societal reintegration. Larkin legally seized the drugs left in plain view during a home visit of a recently assigned parolee. Thus, no Fourth Amendment or other constitutional intrusion occurred, and Judge Kennedy properly denied defendant's motion to suppress.

 
Affirmed.

The State agreed to dismiss all charges against co-defendant Wright, as defendant, when providing a factual basis for his guilty plea, admitted the cocaine found in Wright's sleeping area belonged to him.

The record does not state whether defendant was detained in a traffic stop, field inquiry or other investigative stop.

(continued)

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A-1609-07T4

May 19, 2009