STATE OF NEW JERSEY v. EDWARD R. RUSH

(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NOT FOR PUBLICATION WITHOUT THE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-3859-07T43859-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD R. RUSH,

Defendant-Appellant.

_________________________________________

 

Submitted May 27, 2009 - Decided

Before Judges Winkelstein and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-04-0737.

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

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After the denial of his motion to suppress, defendant Edward R. Rush pled guilty pursuant to a plea agreement to second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The trial judge sentenced him to five years imprisonment. Pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), the sentence was subject to a three year period of parole ineligibility. The trial judge imposed the requisite monetary penalties and assessments and dismissed the remaining counts for various drug and weapons offenses.

Defendant now appeals from the denial of his motion to suppress, contending that the motion should have been granted because the testimony of the police officers was not credible and because the drugs seized were not in plain view. After careful review of the record, we conclude that the trial judge's factual findings were supported by substantial evidence in the record and those findings support his determination that the drugs seized were in plain view. Accordingly, we affirm.

At the suppression hearing, the State presented the testimony of three police officers from Asbury Park. According to the officers, on January 4, 2006, while traveling in an unmarked car, they observed a Ford Explorer with three occupants traveling in the opposite direction. Recognizing the front seat passenger as Brandon McGhee, a person with an outstanding warrant, they commenced a U-turn in order to follow the Ford Explorer. The Ford Explorer then came to a halt on the side of the road, and the three occupants exited the vehicle, leaving the driver's door partially opened and the front passenger side door wide open. After confirming that the warrant was still outstanding, the officers placed Brandon McGhee under arrest. Officer Barnes observed through the open passenger side door a small plastic bag that appeared to contain crack cocaine located in the partially opened center console in the front seat. When Officer Raisin went to retrieve the plastic bag, he found, among other items in the console, latex gloves, a box of plastic bags, and a small scale. At that point, Jamel McGhee, the second occupant of the vehicle, approached the officers and said that the vehicle was his; the officers placed him under arrest. According to the officers, defendant, who had been the third occupant originally seated in the back seat of the Ford Explorer, objected to the officers arresting Jamel McGhee and admitted that the drugs were his. Defendant was also placed under arrest. While the police were awaiting a tow truck to take the vehicle away, one of the officers looked into the interior of the vehicle through the open passenger door and observed the front sight of a handgun protruding from under the front seat, and that weapon was seized.

Defendant and his brother, Ricky Coleman, testified at the suppression hearing and provided a different version of these events. They maintained that there were four occupants of the vehicle and that Coleman was the fourth. They contended that defendant was seated in the front passenger seat and not in the rear of the vehicle. They denied that any doors had been left open after the occupants had exited the vehicle. Coleman testified that he did not see anyone place anything in the vehicle, and he did not see defendant with any drugs. Defendant testified that the console was closed. He denied that he told the officers that the drugs were his, but he did admit to telling them that, if they let his cousin Jamel McGhee go, he would "take the weight." Defendant said that he saw an officer drop the scale which rolled under the seat, and when the officer went to retrieve it, he discovered the gun.

The trial judge found the testimony of the police officers credible, concluded that the drugs and weapon were in plain view, and denied defendant's motion to suppress. Defendant appeals this determination raising the following issues:

POINT I

THE OFFICERS'[] TESTIMONY WAS NOT CREDIBLE AND THE DRUGS AND GUN WERE NOT FOUND IN "PLAIN VIEW." THE SEARCH AND ARREST VIOLATED DEFENDANT'S FOURTH AMENDMENT RIGHTS AND THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

C. The Officers'[] Testimony Was Not Credible.

D. The Seizure Of The Bag Of Drugs Was Not Pursuant To The "Plain View" Exception To The Warrant Requirement.

We reject defendant's argument that the trial judge erred in finding the police officers credible. We must uphold the trial judge's factual findings on a motion to suppress, provided they are "supported by sufficient credible evidence." State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). We defer to the factual findings of the trial judge because he has had the "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We may not overturn the decision of the trial judge merely because we might have decided the matter differently or because "'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Ibid. (quoting State v. Johnson, supra, 42 N.J. at 162). We will disturb the trial judge's factual findings "only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid.

After a careful review of the record and in light of the scope of our review, we find no basis to overturn the trial judge's acceptance of the testimony of the three police officers. The trial judge had the opportunity to observe the demeanor of the witnesses and listen to their testimony and weigh the testimony of the three police officers against that of defendant and his brother and decide which testimony to believe.

The question of whether the seizure of the drugs and weapon can be constitutionally sustained based on the factual findings of the trial judge presents a question of law for us to resolve. See State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.) (stating that "[w]hether 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"), certif. denied, 182 N.J. 148 (2004).

Under both the United States and New Jersey Constitutions, a warrant generally must be issued before the police may search and seize evidence. U.S. Const. amend. IV; N.J. Const. art. I, 7; State v. Pineiro, 181 N.J. 13, 19 (2004). A warrantless search is presumptively invalid unless it "falls within one of the few well-delineated exceptions to the warrant requirement." Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). The State has the burden of showing that the search falls within one of the recognized exceptions to the warrant requirement. Ibid. If a warrantless search does not fall within a recognized exception, the evidence seized must be suppressed. See State v. Lee, 190 N.J. 270, 277-78 (2007) (stating that "[p]ursuant to the exclusionary rule, the State may not introduce evidence obtained from an unlawful search or seizure by the police"); see also Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961) (applying the exclusionary rule to the states through the Due Process Clause of the Fourteenth Amendment).

Under the plain view exception, a law enforcement officer may seize evidence that is in plain view provided he is lawfully in the viewing area and he has "probable cause to associate the property with criminal activity." State v. Johnson, 171 N.J. 192, 206-07 (2002) (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). These requirements were met because the officers were lawfully by the vehicle when they looked inside and saw the plastic bag containing what appeared to be crack cocaine and the protruding gun. The act of looking inside the vehicle did not constitute a search. See State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987) (stating that "[a] simple observation into the interior of an automobile by a police officer located outside the automobile is not a 'search' within the meaning of the Fourth Amendment").

Defendant also argues that the officer intentionally looked into the car in order to determine if anything could be seized so that the seizure of the drugs was not "inadvertent." We note that the law has long imposed the additional requirement of inadvertency under the plain view exception, namely, that the officer "did not know in advance where evidence was located nor intend beforehand to seize it." State v. Johnson, supra, 171 N.J. at 206 (quoting State v. Bruzzese, supra, 94 N.J. at 236). This inadvertency requirement has now been eliminated from federal constitutional law. Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112, 118-19 (1990). The law is unclear whether the inadvertency requirement still applies under New Jersey constitutional law. State v. Padilla, 321 N.J. Super. 96, 109 n.7 (App. Div. 1999), aff'd, 163 N.J. 3 (2000). However, we need not resolve this question, since the requirement of inadvertency, if viable, is not applicable here because the officers made no intrusion when observing the contraband. See State v. Foley, supra, 218 N.J. Super. at 216 (finding the requirement of inadvertency inapplicable because the officer had made no intrusion but merely looked through the window into the vehicle). Further, there is no evidence in the record that the officers stopped the vehicle and made their observations in order to find drugs or weapons; they approached the vehicle due to the outstanding warrant against Brandon McGhee.

For all of these reasons, we find no basis to overturn the trial judge's denial of defendant's motion to suppress and affirm.

Affirmed.

 

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A-3859-07T4

June 12, 2009