STATE OF NEW JERSEY v. RA-KING J. ALLEN, SR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1290-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RA-KING J. ALLEN, SR.,

Defendant-Appellant.

___________________________________________________

September 23, 2011

Submitted August 30, 2011 - Decided

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 08-10-00429.

Stacey Van Malden, attorney for appellant.

Paula T. Dow, Attorney General, attorney for respondent (Robyn B. Mitchell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following an evidentiary hearing resulting in the denial of his motion to suppress evidence seized without a warrant, defendant Ra-KingJ. Allen, Sr., pled guilty to second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a) and 2C:35-5(b)(2). The judge granted the State's motion for an extended term, N.J.S.A. 2C:43-6(f), and defendant was sentenced in accordance with the plea bargain to 14 years in prison with a parole ineligibility period of 57 months. Defendant now raises the following point on appeal:

THE MOTION COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE WHEN THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT A WARRANTLESS SEIZURE PURSUANT TO THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT

We have considered this argument in light of the record and applicable legal standards. We affirm.

Before any testimony was adduced at the evidentiary hearing, defense counsel and the prosecutor agreed to the following:

[W]e can stipulate that the motor vehicle stop was based on probable cause. The driver and the passenger were both placed under arrest for a valid outstanding warrant; that [defendant] . . . was searched incident to that arrest and a small amount of marijuana was found.

Trooper Richard M. Nugnes of the New Jersey State Police testified that on April 21, 2008, at approximately 5:30 p.m., he was preparing to begin his patrol duties when he responded to a call from a fellow trooper, M. DiLillo, who needed "back[] up."1 When Nugnes arrived, DiLillo already had two individuals, defendant and his co-defendant Andrew Allen, "out of the[ir] vehicle" and "in custody." DiLillo left with the prisoners in his patrol car, and Nugnes remained behind "[t]o wait for the tow truck to arrive for the impounded vehicle."

When the tow truck arrived, the vehicle, a Chevy Malibu, was locked. However, Nugnes soon realized that the tow truck operator had accidentally opened the trunk while using the keys to access the car. Nugnes had not asked that the trunk be opened. As he approached the vehicle to close the trunk, Nugnes "observed a black bag in the . . . trunk somewhere around the area of the center." Nugnes saw that "[t]he bag was folded over. . . . [A]nd there was a bar of Mannitol." Nugnes explained that Mannitol is "used for cutting cocaine and/or heroin." He also saw what he believed to be "a bundle of heroin" in the trunk.

Nugnes picked up the bundle of heroin, confirmed his suspicion, and then searched the bag. Inside, he found "measuring spoons" and a "cardboard box" that held "a clear plastic baggie containing several ounces of what [he] believed to be heroin and also several more bundles of heroin and . . . a couple hundred empty druggist folds[,]" a method used to package CDS. Nugnes confirmed that: 1) he made these discoveries as he was "about to release th[e] car into the custody of the tow truck driver"; 2) "seconds, [perhaps a] minute" elapsed between the time the trunk opened and when he made the observations; 3) he did not "manipulate the bag in any way to see the Mannitol or the bundle of heroin"; and 4) he did not "expect to find heroin and Mannitol in the trunk."

On cross-examination, Nugnes testified that "the Mannitol, the measuring spoons, and a bundle of heroin" were not in the "closed box in the plastic bag." The Mannitol was "sitting . . . sort of half in and half outside the bag[.]" Nugnes confirmed that the bundle of heroin was "in the corner of th[e] bag" and he was able to see the drugs and the Mannitol "very clearly" while standing beside the open the trunk.

The tow truck operator, Joseph J. Senese, testified that when he arrived at the scene, a State trooper was standing between the car and his police vehicle. The trooper told Senese it was "an impound" and "handed [him] the keys." Senese "started hitting button[s]" and "the trunk [accidentally] popped open" "[a]ll the way." Senese saw the trooper "turn around and look" at the trunk. Senese was going to close the trunk, but the trooper told him "wait a second."

Senese then saw the trooper "pull[] out this black thing wrapped up in [a] plastic bag" from the trunk. He told Senese it was "narcotics," radioed someone and searched the rest of the trunk before releasing the Malibu to the tow truck operator.

Defendant called his uncle, Andrew Allen, as his sole witness. Allen had already pled guilty to "[m]anufacturing and distributing" heroin and had been sentenced.2 In addition, Allen admitted having "[s]everal" prior "felony convictions." Allen claimed that on the day in question, he placed the heroin "inside a box in a plastic bag" in the trunk of the Malibu, and "glued" it "under the tire in the area where the spare tire goes." Allen claimed the bag was not visible when the trunk was open, and that there was no Mannitol or drugs "outside the box in the black plastic bag."

In his oral decision, the judge stated the following:

The Court has heard the testimony of Trooper [Nugnes] and the tow truck operator and chooses to believe their testimony over that of a convicted felon who indicated that this crime could not have happened as it was reported to have happened.

It is clear to this Court that the narcotics which were found were in plain view through no effort of law enforcement, but by the mistake of the tow truck operator. The Court also finds that Trooper [Nunges] was experienced in the world of narcotics detection and knew what narcotics were, and that the substance which is used to cut heroin was plainly visible to him and he certainly knew what it was. . . . [T]herefore, once he observed that substance which was associated with narcotics and he said he had seen a glassine envelope, he had every right to search that trunk without a search warrant.

The judge denied defendant's motion to suppress.

Defendant argues that there was insufficient credible evidence to support the conclusion that Nugnes' initial observations "fell into the plain view exception to the warrant requirement." That argument lacks sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2).

It is well-recognized that "[i]n reviewing a motion to suppress, an appellate court '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.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007) (in turn quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006) (internal quotation marks omitted)). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal.'" Handy, supra, 206 N.J. at 44-45 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "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. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

As the Court has said,

The plain view doctrine requires the police officer to lawfully be in the viewing area. The officer must discover the evidence inadvertently, meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. The third element . . . is that it had to be immediately apparent to the officer that items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.

[State v. Johnson, 171 N.J. 192, 206-07 (2002) (internal citations and quotations omitted).]

The facts found by the motion judge clearly support application of the plain view exception to Nugnes' initial seizure of the Mannitol and bundle of heroin that were outside the box and partially contained in the black plastic bag in the trunk.

Defendant also contends that the plain view exception to the warrant requirement does not permit the "search . . . of a sealed container within an automobile without the existence of exigent circumstances." Therefore, "the motion court erred in failing to suppress the contents of the box in which the bulk of the drugs were found." We disagree.

Nugnes testified that the Mannitol and one bundle of heroin were visible as he stood beside the open trunk, even though they were partially in the black plastic bag. The bag itself was not sealed, and the cardboard box, although closed, was not sealed either.

It is true that "'the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.'" Johnson, supra, 171 N.J. at 213 (quoting United States v. Ross, 456 U.S. 798, 822-23, 102 S. Ct. 2157, 2172, 72 L. Ed. 2d 572, 592 (1982)). However, "[i]t cannot be denied that 'a police officer lawfully in the viewing area [is not required to] close his eyes to suspicious evidence in plain view.'" Id. at 208 (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)) (alteration in original). The Fourth Amendment does not require the police to secure a warrant prior to the search and seizure of the remaining contents of a plastic bag which other contents, partially exposed, reveal evidence of a crime. See Johnson, supra, 171 N.J.exception, noting that "whether the bag in this case concealed its contents from plain view is a factor to be considered when determining whether the State established probable cause before seizing and opening the container").

1 Trooper DiLillo's first name does not appear in the record.

2 The actual sentence is not disclosed in the record.