STATE OF NEW JERSEY v. COREY E. WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3289-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY E. WILLIAMS, a/k/a

CORY E. WILLIAMS,

Defendant-Appellant.

_________________________________

November 10, 2011

 

Submitted September 26, 2011 - Decided

 

Before Judges A. A. Rodr guez and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-08-1875.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

 

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

PER CURIAM

After having partially lost his motion to suppress certain evidence seized by the police from his motor vehicle, defendant Corey E. Williams pled guilty to third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b. Other offenses charged in the indictment were dismissed pursuant to a plea agreement. Consistent with the plea agreement, the trial court sentenced defendant to two years of probation, conditioned upon 364 days of confinement in the county jail.

Defendant now appeals. His sole argument is that the trial court erred in declining to grant his suppression motion in its entirety. For the reasons that follow, we affirm.

The pertinent facts were developed at the suppression hearing conducted on November 7, 2008. Three law enforcement officers testified for the State, and no defense witnesses were called. Although there were slight variations in their accounts, the witnesses described the following relevant sequence of events.

On the evening of December 21, 2007, four Monmouth County Sheriff's Officers and two trainees were on an assignment serving warrants in Asbury Park. At approximately 11:03 p.m., the officers attempted to serve a warrant at an address on Borden Avenue. They were unable to do so, and returned to their respective vehicles. Officer Sean O Neill, who was training an officer named Mele, then pulled his vehicle alongside the vehicle of Officer David Lasko on Borden Avenue.1 Lasko was with another trainee, Officer Willet.

As O Neill and Lasko conversed while sitting in their vehicles, they observed a Pontiac sedan with Virginia license plates traveling northbound towards them on Borden Avenue. The approaching car had no illuminated headlights. O Neill told Lasko that he was going to stop the Pontiac. It is undisputed that defendant drove the Pontiac, and that there were three passengers in the vehicle.

O'Neill performed a K-turn, and he followed the Pontiac for a short distance. O Neill then activated his emergency lights to perform a motor vehicle stop. Once the Pontiac stopped, O Neill got out of his own vehicle. Carrying a flashlight, O'Neill approached the driver s side of the stopped car. Mele approached the passenger side. As this occurred, Officers Lasko, Willet, Rosado, and Schirripa arrived on the scene. Sergeant Thomas Nuccio, of the Asbury Park Police Department's Gang Unit, also arrived. Nuccio spoke briefly with O Neill, and then left after confirming that the scene was secure.

According to O Neill s testimony, as he approached the driver the first thing he detected was the odor of an alcoholic beverage emanating from the Pontiac. O Neill asked the driver to produce credentials. The credentials identified the driver as defendant, Corey E. Williams.

As defendant looked for his credentials, O Neill observed with the aid of his flashlight, an open bottle of Hennessy cognac located behind the driver s seat in a "cargo-type" mesh pouch. O'Neill also saw a silver-colored cocktail shaker behind the passenger seat. O'Neill further noticed a paper bag on the front passenger side floor, containing what he believed to be an open green bottle of beer.

Meanwhile, Lasko approached the passenger side of the car. According to Lasko's testimony, he likewise smelled the odor of alcohol, and observed the open bottle of Hennessy behind the driver s seat. Lasko also noticed the silver-colored cocktail shaker, although he recalled seeing it between the two rear passengers.

When Lasko asked about the cocktail shaker, another occupant of the car replied that it contained alcohol. Lasko also saw the open green bottle in a paper bag on the front passenger side floor.

Upon making these initial observations, O'Neill asked defendant if he had anything to drink. Defendant replied that he had consumed two beers about ten minutes earlier. O Neill then asked all of the car's occupants for their identification, because he planned to issue each of them a summons for having an open container of alcohol in a motor vehicle. The vehicle occupants produced their identifications, and the officers checked the identifications via radio dispatch for any outstanding warrants. In the meantime, O'Neill administered field sobriety tests to defendant, which did not show that he was impaired.

The County's radio dispatcher reported back to the officers on the scene that one of the occupants in the car, Gilbert Loiseau, had an active warrant for his arrest. O Neill asked defendant to stay at the rear of the car with Willet. O'Neill then went to the rear passenger s seat, where Loiseau was seated.

While shining a flashlight upon Loiseau, O Neill asked him to step out of the Pontiac and O'Neill opened the door. As Loiseau exited the car, O Neill observed a black handgun on the floorboard of the rear passenger seat. Upon seeing the handgun, O Neill unholstered his own service weapon and pointed it at Dallas Brown, another occupant of the car. Brown was seated in the rear driver s side approximately two feet from the handgun. O'Neill yelled, "Gun," and requested emergency backup.

When Lasko heard O'Neill scream "Gun," he looked down, saw the handgun, and immediately brought Loiseau down to the ground away from the vehicle. With his firearm still pointed at Brown, O Neill ordered all the suspects to keep their hands in the air. He reached into the Pontiac to recover the handgun off the floor, and then placed the gun on the trunk of the car. All four of the Pontiac occupants were subsequently handcuffed and secured inside the officers patrol cars.

The weapon that O Neill recovered was later determined to be a .380 caliber handgun, which was unloaded and missing its magazine. The gun had not been reported stolen.

At that point, the officers searched the Pontiac for the gun's magazine or any ammunition. Schirripa found the handgun s case in the trunk of the car, which the officers had opened. The officers then transported the suspects to the Asbury Park Police Department, and the Pontiac was towed to the Sheriff s headquarters.

While defendant s car was in the headquarters lot, O Neill approached it with his flashlight to make sure that all of the windows were closed and that the doors were locked. During the course of that check, O Neill shone his flashlight through the car window. He saw the end of the gun s magazine, sticking out between the base of the steering wheel column and the dashboard. O Neill opened the car door and recovered the magazine.

Subsequently, a grand jury indicted defendant and the other occupants of the Pontiac. Defendant, in particular, was charged with the third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and a second-degree "certain persons" weapons offense, N.J.S.A. 2C:39-7b(1).

Following his indictment, defendant moved to suppress the handgun, the magazine, and the gun case, all of which had been seized from his car without a warrant. After hearing testimony from Officer O'Neill, Officer Lasko and Sergeant Nuccio, the trial judge granted the motion with respect to the magazine and the gun case. However, the judge declined to suppress the handgun, ruling that its seizure was justified under the "plain view" exception to the warrant requirement.

In his oral ruling dated November 14, 2008, the judge generally found the testimony of the officers to be credible, despite certain minor discrepancies about the motor vehicle stop, such as the exact location of the metal shaker observed in the rear of the car. Among other things, the judge found "no reason to doubt [O'Neill's] testimony . . . [that] Loiseau was properly ordered to exit the vehicle." The judge further determined that "O'Neill was not actively searching for evidence against the defendants." The judge rejected defendant's claim that O'Neill's use of the flashlight signified that he was actively searching for evidence of a crime. The judge noted that O'Neill "was lawfully permitted to use a flashlight to see what . . . otherwise would have been in plain view if in daylight."

Additionally, the judge found that when "Loiseau exited the vehicle as requested, Officer O'Neill testified that he saw what he clearly believed was a handgun on the floor and immediately went for his own weapon in order to protect the officer[s'] safety." Most importantly, the judge specifically stated that he "believe[d] Officer O'Neill's testimony that [O'Neill] discovered the handgun inadvertently, as [O'Neill] had no reason to know that the vehicle contained a weapon of any kind."

On this appeal, defendant solely presents the following argument:

POINT I

 

THE TRIAL COURT ERRED BY FAILING TO MAKE CREDIBILITY FINDINGS CONCERNING THE PLAIN VIEW OBSERVATIONS OF THE OPEN CONTAINERS OF ALCOHOL. THE REMAINDER OF THE SEARCH AND SEIZURE WAS "FRUIT OF THE POISONOUS TREE" AND THEREFORE, EVERYTHING SEIZED MUST BE SUPPRESSED IN SUPPORT OF DEFENDANT'S FIFTH AMENDMENT RIGHTS.

 

Having fully considered defendant's contentions and the applicable law, we are satisfied that the warrantless seizure of the handgun from the Pontiac was lawful, and that the trial court did not err in declining to suppress it. In particular, the alleged discrepancies in the officers' testimony do not dispel the validity of the seizure of the handgun under the plain view doctrine.

We are mindful that a warrantless search is presumptively invalid unless it is justified by a recognized exception to the warrant requirement of the federal and New Jersey constitutions. See State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). The plain view doctrine is one such exception. State v. Johnson, 171 N.J. 192, 205-07 (2002).

Under the plain view doctrine, a warrant is not required to perform a search when a police officer is (1) lawfully present in the viewing area, (2) the officer inadvertently2 discovers the evidence in plain view, and (3) it is "'immediately apparent'" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." Id. at 206-07; see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The trial judge, having specifically found credible the pivotal testimony of Officer O'Neill, correctly ruled that all three facets of the plain view doctrine were met here.

First, Officer O'Neill was lawfully standing next to the car, having stopped it legitimately for being driven without headlights. Indeed, defendant does not contest the bona fides of the motor vehicle stop itself.

Second, as the judge found, O'Neill's discovery of the gun in plain view on the car's rear floor was manifestly inadvertent. The officer was entitled to use his flashlight to illuminate the Pontiac's interior while Loiseau, who had an active warrant for his arrest, stepped out of the car in accordance with the officer's directive. See Texas v. Brown, 460 U.S. 730, 739 40, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502, 512 (1983) (holding that shining a flashlight into a vehicle from a public vantage point did not constitute an unconstitutional search); State v. Nishina, 175 N.J. 502, 517-18 (2003) (same); State v. Moller, 196 N.J. Super. 511, 515 (App. Div. 1984) (same).

Third, and finally, it was immediately apparent that the handgun on the car floor was potential contraband or evidence of a crime. Conceivably, one of the other occupants could have grabbed the gun and turned it on the officers, or discarded it in some manner. It was entirely lawful and sensible under the circumstances for the officers to seize the weapon immediately. There is no evidence that their plain-view observation was pretextual.

The miscellaneous differences in the officers' testimony regarding the precise locations of the beverage vessels in the car, as well as other minor details highlighted in defendant's brief, do not fundamentally alter the plain view analysis respecting the gun. Even if we adopted defendant's argument that it would have been impossible for the officers to observe the bottle of Hennessy or the beer bottle from where they were positioned, it does not undermine the court's denial of suppression as to the gun. Both O'Neill and Lasko testified that they smelled alcohol emanating from the Pontiac. That justified the officers' further inquiry into the car and its occupants, regardless of the sighting of open containers. Further, the need of the officers to remain near the car, as Loiseau exited the vehicle was amplified based upon the existence of his open warrant.

Defendant's reliance upon State v. Woodson, 236 N.J. Super. 537 (App. Div. 1989), a case in which we invalidated the search of a car after a traffic stop, is misplaced. In Woodson, the investigating officer opened the car door suddenly and without making any attempt to communicate with the passengers inside. Id. at 538-39. Here, Officer O'Neill did not open the door until he had already learned that a passenger in the backseat had an active warrant. Additionally, he only opened the door upon directing that passenger to get out of the car. The circumstances here are thus readily distinguishable from Woodson.

It is not our function to second-guess the trial court's credibility findings resulting from the suppression hearing. See State v. Locurto, 157 N.J. 463, 469-71 (1999). When reviewing a ruling on 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. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders 386 N.J. Super. 208, 228 (App. Div. 2006), rev'd in part, Elders, supra, 192 N.J. at 251); see also State v. Mann, 203 N.J. 328, 336 (2010). The present case easily meets that standard. The judge's findings were sufficiently extensive and were reasonably supported by the officers' testimony.

T

he trial court's order denying suppression of the handgun is affirmed, and consequently defendant's conviction is affirmed as well.

1 Officers O'Neill and Lasko testified at the suppression hearing. The record supplied to us does not disclose the first names of the other sheriff's officers and trainees who took part in the search (Mele, Rosado, Willet, and Schirripa), none of whom testified.

2 The United States Supreme Court in Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112, 118-19 (1990), altered the inadvertence requirement so that it is essentially satisfied if the plain view observation is not pretextual. See State v. Johnson, 171 N.J. 192, 211-13 (2002). The officer must "not know in advance where [the] evidence was located nor intend beforehand to seize it." State v. Bogan, 200 N.J. 61, 79 n.10 (2009) (citations omitted).