STATE OF NEW JERSEY v. ROBIN LAMENDOLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6017-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBIN LAMENDOLA,

Defendant-Appellant.

_______________________________

December 9, 2010

Submitted November 17, 2010 - Decided

Before Judges Gilroy and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 07-03-0726 and 07-09-2072.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On March 21, 2007, a Monmouth County Grand Jury charged defendant under Indictment No. 07-03-0726 with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1). On June 22, 2007, the trial court denied defendant's motion to suppress evidence. On July 9, 2007, defendant pled to the charge. On January 25, 2008, the court sentenced defendant to a three-year term of imprisonment, concurrent with a term of imprisonment imposed on the same date on defendant's conviction for third-degree possession of a CDS (heroin), N.J.S.A. 2C:35-10a(1), under Indictment No. 07-09-2072.

On appeal, defendant argues:

THE SEARCH OF [DEFENDANT'S] BAG, AFTER SHE WAS ARRESTED AND SECURED IN THE BACK OF THE PATROL VEHICLE, VIOLATED ARTICLE 1, 7 OF THE NEW JERSEY CONSTITUTION AND THE FOURTH AMENDMENT OF THE FEDERAL CONSTITUTION.

After considering defendant's argument in light of the record and applicable law, we affirm. We briefly state the facts as adduced from the transcripts of the hearing on the motion to suppress evidence.

Early in the morning on December 30, 2006, Patrolman Gary Olsen of the Brielle Borough Police Department overheard a radio transmission regarding a possible intoxicated automobile driver. Responding to the radio transmission, Olsen observed the suspected motor vehicle. Olsen followed the vehicle for approximately one mile. Although Olsen did not observe any moving violations by the operator of the vehicle, he did observe that the vehicle's driver's side mirror was missing. Based on that motor vehicle violation, Olsen made a stop of the vehicle and identified defendant as the operator.

Upon conducting a credential check of defendant and the vehicle, Olsen learned that there was an outstanding warrant for defendant's arrest from the Neptune City Municipal Court. While defendant remained seated in her vehicle, Olsen confirmed the warrant's validity with his radio dispatcher. In so doing, Olsen observed defendant's head quickly disappear from his view. Concerned for his safety, Olsen exited his patrol car and walked toward defendant's vehicle to ascertain what defendant was doing.

On approaching the vehicle, Olsen saw that defendant had both of her hands inside a plastic bag that was lying on the front passenger seat. Defendant told Olsen that she was attempting to retrieve a breakfast sandwich from the bag; however, Olsen observed that the sandwich was lying on the dashboard directly in front of defendant. Olsen instructed defendant to stop moving about in the vehicle, and defendant complied by retracting her hands from the bag.

With the arrest warrant having been confirmed, Olsen instructed defendant to step out of her vehicle. Defendant quickly grabbed the plastic bag and exited. Believing that the bag may have contained a weapon, Olsen grabbed the bag from defendant's possession. Olsen placed the bag on the rear of defendant's vehicle and secured her in the rear of his patrol car. After defendant was secured, Olsen looked into the bag and found a closed translucent plastic container and a closed Altoids tin. Olsen illuminated the translucent container with his flashlight and observed what he believed were pieces of crack cocaine. A field test at the scene supported Olsen's belief. On opening the Altoid tin, Olsen observed marijuana.

At the hearing, defendant did not challenge the validity of the motor vehicle stop or her arrest. Rather, defendant only challenged the validity of the search of the plastic bag. Defendant contended that the search could not be justified as incident to her arrest because at the time of the search, she had already been secured in the rear of the police vehicle by Olsen. The court rejected defendant's argument, determining that the warrantless search was lawful as incident to defendant's arrest. In so doing, the court reasoned:

In this particular case, our facts are as I've indicated . . . that when she exited the vehicle, she took that bag with her. She had it physically in her hands and the police officer grabbed it from her and put it on the back of the squad car and then secured her in the back of the patrol vehicle.

The defendant asserts that . . . State v. Eckel, 185 N.J. 523 [(2006)] controls this particular issue. And that, therefore, the items [found] inside the bag are inadmissible because she was already secured in the patrol vehicle when the officers looked inside . . . the bag.

And in State v. Eckel, the court held that once the occupant of the vehicle has been arrested, removed and secured elsewhere, the considerations informing this search incident to arrest exception are absent and the exception is inapplicable. Id. at 541[.]

The police in Eckel placed the defendant under arrest and then returned to the vehicle to conduct a search. Id. at [525-26].

Now Eckel had to do with a search of the interior of a car. And as far as this [c]ourt is concerned, we're dealing with a search of the person. Once she took . . . the . . . bag out of the . . . interior of that car, the [c]ourt is satisfied that this was simply an extension of her person. The fact that the officer seized the bag and placed it on the car is of no moment to this [c]ourt. If he allowed her to keep the bag, he would have subverted the purpose of searching [incident] to [the] arrest, [that is,] protection of evidence and the officer. So he had to do something with that particular bag to remove it from her hands; otherwise, it would have been impossible for him to search it and to put her in the police car for a moment and then search [the] bag, as I said, I think it's of no moment.

. . .I feel that this was a search of the person and the officer was authorized. . . .

An appellate court's scope of review of a trial court's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). On reviewing a motion to suppress evidence, we "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, factual findings of the trial court are entitled to deference when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting Elders, supra, 192 N.J. at 244).

When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid. Nonetheless, "if the trial court's findings are so clearly mistaken 'that the interest of justice demand intervention and correction,' then the appellate court should review 'the record as if it were deciding the matter at inception and make its own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162).

However, "a reviewing court owes no deference to the trial court in deciding matters of law. When a question of law is at stake, the appellate court must apply the law as it understands it." Ibid. (internal citations omitted).

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals against unreasonable searches and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). "[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search . . . ." State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. Diloreto, 180 N.J. 264, 275-77 (2004). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Frankel, supra, 179 N.J. at 598.

One exception is a search incident to an arrest. The principles governing this exception were recently restated by the Supreme Court:

Under the search incident to arrest exception, the legal seizure of the arrestee automatically justifies the warrantless search of his person and the area within his immediate grasp. The arrest must precede the search. So long as there is probable cause to arrest, the ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons. The justification for the search of an arrestee is to preclude him [or her] from accessing a weapon or destroying evidence.

[State v. Pena-Flores, 198 N.J. 6, 19 (2009) (internal citations omitted).]

We have considered defendant's argument in light of the record and applicable law. We disagree and affirm substantially for the reasons expressed by Judge Chaiet in his oral decision of June 22, 2007. Nevertheless, we add the following comments.

Defendant, citing Eckel, supra, and State v. Pierce, 136 N.J. 184 (1994), argues as she did in the trial court, that because she had been secured in the rear of the patrol vehicle when Olsen searched the plastic bag, the search was unlawful. Defendant contends that once she was secured in the patrol vehicle, the basis for a search incident to the arrest ceased to exist.

Eckel and Pierce are distinguishable. In those cases, the police, after arresting and securing the defendants inside the police motor vehicles, conducted searches of the interior of the defendants' motor vehicles. See Eckel, supra, 185 N.J. at 524; Pierce, supra, 136 N.J. at 186. Such is not the case here. Olsen did not search defendant's motor vehicle. Rather, concerned for his safety because of what the bag might have contained, Olsen seized the bag from defendant's personal possession as defendant exited from her vehicle. Because he could not simultaneously secure defendant in the rear of his patrol vehicle and search the bag, he first secured her and then searched the bag. We find nothing unreasonable in the manner in which the search was conducted.

As previously stated, one exception to the search warrant requirement is a search incident to a lawful arrest. The police are permitted to search the arrestee and the area within the arrestee's immediate control for the purpose of removing weapons and preserving evidence. Pena-Flores, supra, 198 N.J. at 19. "The authority to search an arrestee and the area within his [or her] immediate control includes the authority to search a container found in the arrestee's possession." State v. Oyenusi, 387 N.J. Super. 146, 154 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007). The same is true of bags. Pierce, supra, 136 N.J. at 199. "The only limitation upon a search of an arrestee's person and the area within his [or her] immediate 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 (1983)). The contemporaneous requirement is "ordinarily satisfied if the search of the arrestee and a container in his or her possession is made at the location of the arrest while the arrestee is still on the scene." Id. at 155.