STATE OF NEW JERSEY v. BENJAMIN J. SHIHADEH

(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NOT FOR PUBLICATION WITHOUT THE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-3451-07T43451-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENJAMIN J. SHIHADEH

a/k/a BEN SHIHADEA,

Defendant-Appellant.

________________________________

 

Argued: March 4, 2009 - Decided:

Before Judges C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-05-1259.

Bartholomew Baffuto argued the cause for appellant.

Leslie-Ann M. Justus, Deputy Attorney Gen eral, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. Justus, of counsel and on the brief).

PER CURIAM

Following a conditional guilty plea to third-degree posses sion of cocaine, N.J.S.A. 2C:35-10a(1), defendant appeals from the denial of his motion to suppress evidence seized in a search of the property on his person when he was charged at the police station with driving while intoxicated, N.J.S.A. 39:4-50. We affirm.

In the early morning hours of January 1, 2007, Corporal James J. Keenan, Middletown Township Police Department, stopped defendant on suspicion of driving under the influence. Defen dant does not dispute that the officer had probable cause to do so. While he was being transported to the police station, defendant's hands were cuffed behind his back and, despite repeated instructions to sit still, defendant kept trying to reach around for something. Upon arriving at the police sta tion, Patrolman Michael Kenney, who had arrived at the scene of the arrest as backup for Keenan, instructed defendant to empty his pockets and place everything on a table. Defendant complied and placed a pack of cigarettes, a lighter, a folding leather credit-card case, and other items on the table. Defendant was then placed in a holding cell. Kenney opened the credit-card case and removed the cards. When he did so, a folded twenty-dollar bill filled with cocaine dropped from between some cards; it was logged into evidence.

At the suppression hearing, Kenney explained that he emp tied the wallet because departmental policy required him to inventory all property on a subject's person, list the property, and have the subject sign the list at that time and again when the items were returned. This policy was intended to prevent false claims of missing property. No such list was produced at the hearing. Kenney acknowledged that he could have complied with the policy by listing a closed wallet. Defendant submitted breath samples and was released at 4:45 a.m. after his brother arrived to drive him home.

The judge found that the search was a proper search inci dent to an arrest because defendant's arrest on the street and his transport to the police station was a single, uninterrupted transaction. He also found that the inventory search was part of a routine booking procedure for the safety of the officers and protected the police from false claims of stolen property. He denied the motion to suppress.

Defendant raises a single argument on appeal:

THE SEARCH OF MR. SHIHADEH'S PERSONAL PROP ERTY WAS ILLEGAL UNDER ARTICLE 1, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.

The scope of our review of a judge's fact-findings on a motion to suppress evidence is limited. "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evi dence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibil ity findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the mat ter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162.

Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. State v. Brown, 118 N.J. 595, 604 (1990); State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004); State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

"Warrantless searches are presumed invalid," and the State has the burden to prove that a warrantless search falls within a recognized exception to the warrant requirement. State v. Pena-Flores, 198 N.J. 6, 18 (2009). The United States Supreme Court has enumerated the exceptions to the requirement of a warrant before searching or seizing an item or a person. State v. Hill, 115 N.J. 169, 173-74 (1989). Among those exceptions are searches incident to an arrest under Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), and inventory searches under South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). Hill, supra, 115 N.J. at 173. New Jersey has recognized both excep tions. See State v. Sims, 75 N.J. 337, 352 (1978) ("When a valid arrest based on probable cause has been made, a police officer is entitled to search the arrestee's person in order to protect himself and to insure that evidence is not destroyed."); State v. Moore, 181 N.J. 40, 45 (2004) (recognizing inventory-search exception, among others); State v. Paturzzio, 292 N.J. Super. 542, 550 (App. Div. 1996) ("An inventory search of per sonal effects of an arrestee at a police station is permissible under the Fourth Amendment.").

Defendant urges that he was not charged with a crime, cit ing State v. Hamm, 121 N.J. 109, 112 (1990) ("[T]he motor-vehicle offense of DWI . . . is simply not a crime under New Jersey law."), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991), and argues that the scope of a search incident to such an arrest should be limited, citing State v. Daniels, 393 N.J. Super. 476, 491 (App. Div. 2007). He contends that the pat-down search at the scene was all that was required to insure the safety of the officers and the fruit of the subse quent search of his personal property at the police station should be suppressed because the search "was remote in both time and place from the location of the arrest," quoting State ex rel. J.M., 339 N.J. Super. 244, 249 (App. Div. 2001). Thus, he asserts that the search cannot be justified as a search incident to arrest. Finally, he argues that the inventory-search excep tion is not available because it only "comes into play when the arrestee is to be incarcerated," quoting ibid. We disagree with both propositions.

It is, of course, true that defendant was not charged with a crime. He was, nonetheless, arrested and detained at police headquarters for a breath test. "[S]earches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of deten tion." United States v. Edwards, 415 U.S. 800, 803, 94 S. Ct. 1234, 1237, 39 L. Ed. 2d 771, 775 (1974); see also State v. Oyenusi, 387 N.J. Super. 146, 156 (App. Div. 2006) ("[A] search incident to an arrest may be valid under some circumstances even though it is not conducted contemporaneously with the arrest."), certif. denied, 189 N.J. 426 (2007). "The only limitation upon a search of an arrestee's person and the area within his immedi ate control is that the search may not be 'remote in time or place from the arrest[.]'" Oyenusi, supra, 387 N.J. Super. at 154 (quoting United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 2485, 53 L. Ed. 2d 538, 550-51 (1977)).

We held in Oyenusi that an otherwise valid inventory search is not invalidated merely because of some period of delay between the arrest and the inventory search:

[A] search incident to an arrest may be valid under some circumstances even though it is not conducted contemporaneously with the arrest. In . . . Edwards,[ supra,] 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 . . . , the Court upheld the validity of the seizure and subsequent search of clothing taken from an arrestee in jail approximately ten hours after his arrest. In holding that this seizure and search did not require a warrant, the Court stated:

 
[O]nce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were sub ject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent adminis trative processing, on the one hand, and the taking of the prop erty for use as evidence, on the other.

 
[Id. at 807, 94 S. Ct. at 1239, 39 L. Ed. 2d at 778.]

See generally 3 LaFave 5.3(a). However, such a delayed search incident to an arrest may be made only of items that are "immedi ately associated with the person," such as a purse or wallet, and not of items such as the footlocker involved in Chadwick. Curd v. City Court, 141 F.3d 839, 842-44 (8th Cir.), cert. denied, 525 U.S. 888, 119 S. Ct. 204, 142 L. Ed. 2d 167 (1998).

[Oyenusi, 387 N.J. Super. at 156 (footnote omitted) (emphasis added).]

This police-station search was not remote in time or place and the police had every reason to continue the search in light of defendant's conduct as he was being transported there. Even if that were not so, in Oyenusi we recognized the propriety of an inventory search: "The personal effects in an arrestee's possession also may be the subject of an 'inventory search' con ducted 'as part of the routine administrative procedure at a police station house incident to booking and jailing[.]'" Ibid. n.3 (quoting Illinois v. Lafayette, 462 U.S. 640, 643-48, 103 S. Ct. 2605, 2608-11, 77 L. Ed. 2d 65, 69-73 (1983)). We are not persuaded that that such a search was inappropriate simply because defendant was not being held pending determination of his right to bail. With this particular type of motor vehicle violation, the police were required to detain defendant until he was sober or until a responsible adult, such as his brother, picked him up from the police station. The need for an inventory search was the same in either circumstance.

 
Affirmed.

J.M. involved a juvenile where there was no probable cause for arrest. Id. at 256.

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A-3451-07T4

April 29, 2009