STATE OF NEW JERSEY v. SAMUEL O. WHITE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6207-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMUEL O. WHITE,

Defendant-Appellant.

September 28, 2010

Submitted September 7, 2010 - Decided

Before Judges Grall and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-06-0528.

Wayne Powell, attorney for appellant.

Jennifer Webb-McRae, Cumberland County Prosecutor,attorney for respondent (Marianne V. Rogers, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Samuel O. White on March 18, 2009, entered a conditional guilty plea, pursuant to Rule 3:9-3(f), to an amended charge of second-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2).1 The issue preserved for appeal was whether the seizure of contraband incidental to the execution of an arrest warrant passed constitutional muster. For the reasons that follow, we find the search to have been lawful and affirm.

We briefly summarize the facts developed during the suppression hearing. On February 13, 2007, a home invasion robbery was reported at defendant's residence. Defendant, a long-distance truck driver, was out-of-state on that date. During the investigation of the robbery, police found narcotics in defendant's home and as a result, obtained a warrant for his arrest.

Defendant's employer was a produce distribution company located in Vineland. Several officers from at least three different law enforcement agencies, including a Sheriff's Department K-9 officer and dog, converged there on March 26, 2007, in order to arrest defendant. Defendant backed his eighteen-wheel refrigerated truck into a loading bay and exited his vehicle as officers watched.

At this point, accounts differ. Detective Nicholas Sterchele of the Vineland Police Department testified that defendant jumped out of the cab of his truck vehicle while holding a small bat in his hand. Once defendant left the cab, all law enforcement personnel moved in, cuffed defendant, and placed him under arrest.

Sterchele went into the cab to turn off the engine, lock the doors, and otherwise engage in a process he described as "securing" the vehicle, which he testified was standard procedure after an arrest. The first step up into defendant's truck cab is approximately three feet high, while the driver's seat is approximately six feet above ground level. When Sterchele entered the truck, he saw a silver briefcase, sitting open on the passenger's seat and oriented towards the driver's seat. The briefcase contained two plastic sandwich bags containing a "white, rock-like substance" he believed to be crack cocaine. Sterchele turned off the engine, took the keys out of the ignition, and locked the cab doors. He left the briefcase containing the contraband inside. The Vineland Police Department thereafter obtained a search warrant for the briefcase and the vehicle.

Defendant's version of events varied from this narrative. Defendant said that he locked the door to the cab upon exiting, although he also left a key in the ignition. He explained this practice was necessary because the cab's airlock doors easily self-locked as the operator reached up towards the door handle. Defendant also said the ignition is located on the left-hand side, obviating the need for anyone to enter the cab in order to turn off the engine. Although defendant insisted he had turned off the engine before exiting, he and his witnesses acknowledged that the sound coming from the refrigerator unit to the rear of the eighteen-wheeler, which was on, was difficult to distinguish from the sound of the engine. Defendant testified that once he was cuffed, the arresting officers removed the truck keys from his pocket, unlocked the cab door, and entered the vehicle without his consent, eventually tossing the keys onto the ground.

Defendant's two eyewitnesses, one a friend and the other a long-time co-worker, corroborated his testimony that he locked the cab door, that the cab keys were taken out of his pocket, and that the keys were used by police to make an unauthorized entry into the cab. Both eyewitnesses agreed that the keys were thrown onto the ground after police entered the truck.

In his initial and supplemental written decisions denying the motion to suppress, the motion judge found Sterchele's testimony to have "the ring of truth," while that given by defendant and his witnesses was not "credible or believable." The judge in fact characterized the defense version as "particularly implausible and unlikely." The judge further found that because Sterchele heard the sound of an engine, it was reasonable for him to enter the cab for the limited purpose of turning off the engine and locking the vehicle doors, even if after entry he discovered that the noise came from the refrigeration unit. Once having made a lawful entry for the limited purpose of ensuring the vehicle was "secured," the plain view observation of the drugs was a permissible basis for the issuance of the search warrant.

We affirm essentially for the reasons stated in Judge Geiger's cogent and thoughtful decision. Accordingly, we make only the following brief comments.

Defendant's challenge to the denial of the motion to suppress is based on his contention that "the search did not come within any recognized exception to the warrant requirement." We do not agree.

When reviewing the propriety of a motion to suppress, we "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted). Particular deference is paid to those findings when based upon a trial judge's credibility determinations. State v. Locurto, 157 N.J. 463, 470-71, 474 (1999). This deference is extended because credibility findings "are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Id. at 474. Only where the trial court's findings are so clearly mistaken "that the interests of justice demand intervention and correction," do we examine the record anew. State v. Johnson, 42 N.J. 146, 162 (1964) (citations omitted). We owe no particular deference to decisions of law. State v. Gandhi, 201 N.J. 161, 176 (2010).

It is more than well-established that a warrantless search is presumptively invalid unless it "falls within one of the few well-delineated exceptions to the warrant requirement." Elders, supra, 192 N.J. at 246 (citations and internal quotation marks omitted). The seizure of the drugs in this case was actually made with the benefit of a warrant but the question remains whether the initial entry and observations, essentially a search, were a lawful basis for the issuance of the search warrant.

In order for the plain view doctrine to exempt a search from the warrant requirement, the following three elements must be satisfied:

First, the police officer must be lawfully in the viewing area.

Second, the officer has to discover the evidence "inadvertently," meaning that he did not know in advance where evidence was located nor intend beforehand to seize it.

Third, it has to be "immediately apparent" to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.

[State v. Bruzzese, 94 N.J. 210, 236 (1983) (citations omitted), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).]

Defendant contends that the State's witnesses, Sterchele and Detective Ron DeMarchi, who corroborated Sterchele's description, lacked credibility. Defendant does not direct us to anything in the record that would cause us to question the judge's conclusion about the veracity of the officers' testimony. Our independent review of the record does not reveal significant discrepancies that would raise a doubt about the officers' testimony.

If Sterchele is credible, the analysis affirming the search flows inevitably. It is reasonable for police to turn off a vehicle engine, and to lock it upon the arrest of the operator. Although the presence of personnel from other offices, the K-9 officer, and a drug-sniffing dog indicate police were prepared to address any circumstances they might encounter while executing the arrest warrant, that fact in and of itself does not invalidate the search. Nothing in the record indicates officers knew in advance of the presence of the briefcase or the drugs it contained. The briefcase was not even visible from the ground.

Therefore there was nothing improper about Sterchele's presence in the cab. Officers were unaware of the existence of the contraband prior to Sterchele's lawful entry into the truck. The items were visible in the open briefcase, and the nature of the contraband would have been readily identifiable as crack cocaine to any experienced officer. All three requirements of the plain view exception were met and the plain view exception to the warrant requirement applies. Sterchele's observations were a proper foundation for the issuance of a search warrant. Hence, Judge Geiger correctly applied the law in determining that the eventual seizure of drugs from the truck cab was lawful.

1 Defendant's appendix does not include a copy of the indictment, the written plea agreement, or the judgment of conviction.