STATE OF NEW JERSEY v. RONALD HAYWOOD, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4374-09T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RONALD HAYWOOD, JR.,

Defendant-Respondent.

________________________________________________________________

April 29, 2011

 

Submitted December 14, 2010 - Decided

 

Before Judges Wefing, Baxter and Koblitz.

 

On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-06-2016.

 

Warren W. Faulk, Camden County Prosecutor, attorney for appellant (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

 

Robert N. Agre, attorney for respondent.

 

PER CURIAM

By leave granted, the State appeals from an April 23, 2010 order granting Ronald Haywood, Jr.'s motion to suppress two bottles of liquor and a condom seized from his car. The State also appeals from an April 27, 2010 order denying its motion for reconsideration. After consideration of the contentions raised in light of the facts adduced at the suppression and Miranda hearings, Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966), we remand to the trial judge for further fact finding regarding Detective Brian Polaski's plain view observation of the evidence in defendant's car.

On May 27, 2009, a Camden County Grand Jury returned Indictment No. 09-06-2016, which charged defendant with second-degree luring or enticing a child, N.J.S.A. 2C:13-6; second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 14-2(c)(4); and fourth-degree attempted criminal sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3(b).

The indictment was based on evidence that on December 9, 2008, the Pennsauken Police Department received a report of an attempted luring of G.P., a thirteen-year-old girl, by "Junior," a male reported to be in his twenties. G.P. reported that Junior approached her in December while she was wearing her middle school uniform. G.P. identified Junior from his MySpace profile, and she told police he approached her several times in person and commented on how "cute she was." G.P. also reported that Junior told her she looked "a little too young," but he "wanted to get to know her." Junior had communicated with G.P. over her MySpace page and given her his telephone number.

After the police identified Junior as thirty-two-year-old defendant Ronald Haywood, Jr. through internet subscriber information, G.P.'s mother signed a third-party consent form to allow Detective Polaski to intercept and record electronic communications from G.P.'s MySpace page. Polaski, pretending to be G.P., continued to communicate with defendant.

From December 29, 2008, until February 2, 2009, Polaski, acting as G.P., communicated with defendant. Defendant expressed his desire to meet with G.P. During the February 2, 2009 communication, they arranged to meet later that day. Polaski, still acting as G.P., told defendant to bring liquor and condoms to the meeting at Tippin's Pond.1

Polaski observed defendant's Chrysler Pacifica enter, wait for a couple minutes and then exit the parking lot area at Tippin's Pond. Since Polaski was in an unmarked police car, he radioed for a marked police car with lights and sirens to stop defendant's car. Earlier that day, Polaski had alerted Officer Kern that he might ask him to make this stop and had found out that there was an open warrant for defendant's arrest. Officer Kern, in a marked police car, stopped defendant on River Road. After Kern stopped defendant, Polaski arrived at the scene. Polaski then called police headquarters and obtained permission from a police sergeant to impound the car. Polaski personally drove the car less than a mile to the police station.

The police searched defendant's home on the night of his arrest pursuant to a search warrant, and nine days later, on February 11, 2009, Polaski obtained a search warrant for defendant's car, which was signed by the same judge who conducted the hearings in this matter. In the search warrant, the trial judge authorized police to seize "[t]he alcohol and condoms that were discussed during a conversation between [Junior] and Detective Polaski on MySpace. The items were seen in plain view inside the car . . . belonging to Ronald E. Haywood, Jr. after he was arrested."

On February 5, 2010, after a Miranda hearing, the judge denied defendant's motion to exclude his taped statement from trial. At the Miranda hearing, Polaski testified under oath that he did not see the items in the car until after it was parked in the back lot of the Pennsauken Police Department after being impounded. He said that at the scene someone told him what was in the car, and "then when it was brought to the back of the police station, that is when I asked - - to look in there." He testified that no inventory was taken of the car's contents.

After defense counsel indicated he wished to file a motion to suppress the evidence found in the car based on Polaski's testimony, the prosecutor stated:

Judge, just for the record, this would not be the officer or the detective that we would call [at a suppression hearing]. We would call the officer who made the motor vehicle stop, who can actually testify as to the plain view. And that's why I would ask that questions regarding the actual search of the condom[] and the liquor not be addressed to this officer if he has no personal knowledge.

 

Kern testified at the subsequent suppression hearing on April 9, 2010, that prior to Kern starting his 3:00 p.m. shift, Polaski told him that "he might need a marked patrol car . . . to conduct a vehicle stop on an individual on active warrant, said the individual was wanted for assault, use caution, he'd be operating a '04 Chrysler Pacifica . . . ." Polaski gave Kern defendant's license plate number. Later, Kern received a radio request to stop defendant's car. Kern observed the car make a right turn at a red light without coming to a complete stop. He activated his overhead lights, stopped the car, identified defendant and arrested him on an active arrest warrant for simple assault unrelated to this matter. N.J.S.A. 2C:12-1(a)(1). Kern also issued defendant a traffic summons for failure to come to a complete stop before turning right at a red light. N.J.S.A. 39:4-1.15(b). He said that shortly after stopping defendant, Polaski and another detective arrived on the scene. Kern testified that after he placed defendant in handcuffs, he walked defendant back to the marked police car and then transported defendant to the police station. Kern said as he was arresting defendant, the detectives were standing toward the rear of defendant's car. Kern said Polaski remained with defendant's car, which was legally parked by the side of the road in a residential area where parking is permitted at all times of the day.

Polaski was also called to testify at the suppression hearing.2 Polaski testified that after Kern arrested defendant, Polaski used his flashlight to look inside the car. In contrast to his Miranda hearing testimony, Polaski testified that upon looking in the car from the passenger side, he saw two bottles of alcohol on the floor in front of the passenger seat and a condom in the center console. Polaski also testified for the first time that he impounded the car by personally driving it to the police station, where it was secured for nine days until a search warrant was obtained and the liquor and condom removed.

The judge became perturbed at Detective Polaski's action in driving defendant's car himself and at what he perceived to be dissembling on the part of Polaski. The following colloquy occurred during the detective's testimony, after he related that Patrolman Kern had left the scene with defendant in his custody.

Q. Okay. What did you do?

A. And well, he left the scene with him and then, at that point, that's when I had my flashlight and I'm looking inside the vehicle.

 

Q. Okay. And you're standing outside the vehicle when you're looking inside the vehicle?

A. Correct.

 

Q. Okay. Do you remember if the driver's side door was left open?

A. I can't recall on that.

 

Q. Okay. Based on your investigation up to that point in relation to the MySpace communications, specifically the communications in which the meet [sic] between G.P. and the defendant was set up, did you -- when you were using your flashlight in the vehicle, did you find anything in -- of relevance?

A. Yes, I did.

 

Q. And what did you find?

A. I found the two bottles of alcohol and there was a condom in there.

 

Q. Okay. Where were the two bottles of alcohol?

A. The two bottles of alcohol were on the floor passenger seat and the condom was in the center console on the passenger side.

 

Q. Were you able to view that from the outside of the vehicle?

A. Yes.

 

Q. And this was at what time in the evening? What time of the day is it?

A. Five o'clock in the evening and it's -- five -- twenty-after-five or -- five o'clock. Five p.m.

 

Q. Okay. Do you recall if it was light or dark?

A. It was dark.

 

Q. It was dark. And you did use a flashlight?

A. Yes.

 

Q. And where were you standing when you made these observations?

A. On the passenger side.

 

Q. The passenger side of the vehicle?

A. Yes.

Later, after Polaski recited how he drove the car to the station, the prosecutor asked him the following question:

Okay. In addition to the alcohol and the condom that you testified to you had already seen from the outside of the vehicle, what, if anything, were you able -- of evidentiary value were you able to view when you got in the car to drive it to headquarters?

 

Polaski responded: "There was nothing else in the vehicle I could see."

Later, however, when discussing Polaski's testimony, the judge referred to this testimony in the following manner:

Did you hear him say at any point in time, I got in that car and I saw that stuff? I got in the car, I moved that car from River Road to the impound lot, one mile away. The condom is right next to a water bottle that's next to him and the booze is clearly on the floor. Did you hear that officer say, I saw that? Did you hear one word out of his mouth that said, I saw that? Don't you think that's incredible?

 

A judge should be perturbed if he or she is confronted with a witness who is attempting to deceive; here, however, the judge misapprehended the scope of the question that had been posed to the detective and thus the detective's answer. Polaski did not attempt to tell the judge that he did not see the liquor bottles and the condom when he entered the car; that would be incredible. Rather, he said that he did not see anything in addition to what he had already observed while standing outside the car.

At the suppression hearing, the trial judge found that Polaski's testimony was "incredible." The judge stated that at the Miranda hearing Polaski testified that he first saw the liquor and condom at the police station after the car was impounded. The judge said that Polaski's contradictory testimony at the Miranda hearing in conjunction with the police report, which described the impound of the car before the observation of the evidence in the car, had initially misled the judge to conclude that those items were first seen by Polaski at the impound lot, not at the scene of the nighttime stop.

Specifically, the judge reasoned:

I don't find it to be credible. Not one word of it in his report, not one word of it in the search warrant application, and the last time he testified he said, I saw it at the police station and I believe the car had been properly . . . impounded. . . . I find out today under oath that he hops in the vehicle and moves [the vehicle himself].

 

The judge concluded, "I can't tell you what happened, but I can tell you [when] something smells funny."

After denying a motion for reconsideration, the judge issued a written opinion where he found that the State failed to demonstrate by clear and convincing evidence the applicability of the independent source rule or the inevitable discovery doctrine. The trial judge was concerned above all about Polaski's lack of credibility. The judge was also disturbed by the method Polaski used to impound defendant's car.

On interlocutory appeal the State raises the following argument,

POINT I: THE MOTION COURT ERRED IN MISAPPLYING THE INDEPENDENT SOURCE DOCTRINE TO PUT THE POLICE (AND SOCIETY) IN A WORSE POSITION [THAN] HAD NO VIOLATION OCCURRED, AND ERRED IN MISAPPLYING THE INEVITABLE DISCOVERY DOCTRINE BY FAILING TO RECOGNIZE THAT THE EVIDENCE WOULD HAVE BEEN DISCOVERED BY ROUTINE, LAWFUL MEANS. [Raised Below.]

Our review of a trial court's fact-finding function is limited. State v. Locurto, 157 N.J. 463, 471 (1999). "Appellate courts should defer to trial courts' credibility findings that 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. If the trial court's findings of fact are supported by "sufficient credible evidence present in the record," those findings will be binding, even if we might have reached a different conclusion. Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

We understand the trial judge's frustration with Polaski's revelation at the suppression hearing that he drove defendant's car to the police station himself. This information was not ascertainable from Polaski's report and was contradicted by Polaski's own testimony at the earlier Miranda hearing. With the benefit of a transcript, however, we conclude that the judge misunderstood Polaski's testimony as it related to what he observed before he entered defendant's car to drive it to the police station. With an opportunity to review a verbatim record of the questions and answers, the trial judge may believe Polaski's testimony that he shined a flashlight into the car and saw the evidence before he entered the car. Polaski did not seize the evidence out of the car as a result of a plain view observation, and the State did not argue that plain view justified the subsequent seizure. If the trial judge determines, upon reconsideration, that Polaski was truthful in his testimony that he saw the liquor and condom in plain view through the passenger side window of the car when defendant was arrested, then the judge should consider whether this plain view observation affords the State justification for the seizure of the evidence within the car.

"As a general rule, evidence directly seized in violation of the warrant requirement is suppressed at trial." State v. Holland, 176 N.J. 344, 353 (2001) (citing Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961)). Accordingly, "[a] search without a warrant is presumptively invalid unless it falls within one of the few well-delineated exceptions to the warrant requirement." State v. Mann, 203 N.J. 328, 340 (2010) (citation and internal quotation marks omitted). Although New Jersey does not recognize the automobile exception to the warrant requirement, the Supreme Court has "acknowledged that that there is a somewhat lesser expectation of privacy in an automobile than in a home or office[.]" State v. Eckel, 185 N.J. 523, 539 (2006) (citation omitted).

Under the New Jersey plain view exception to the warrant requirement, a police officer may seize evidence in plain view provided that: (1) the officer was lawfully in the viewing area when observing the item; (2) the officer discovered the item(s) "inadvertently, meaning that he did not know in advance where the evidence was located nor intend beforehand to seize it"; and (3) it was "immediately apparent" to the officer that the item in plain view was "evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002) (citations and internal quotation marks omitted). The inadvertence requirement has been eliminated from the federal plain view doctrine in all searches, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). We are unaware of any reported legal authority in New Jersey supporting the suppression of evidence found in plain view in a car due to a lack of inadvertence alone. However, New Jersey still delineates inadvertence as one requirement for a lawful seizure of evidence in plain view, even when the evidence is located inside of an automobile. See Mann, supra, 203 N.J. at 341 (finding the inadvertence requirement satisfied when a police officer seized drugs from a defendant's car after his arrest); but see State v. Foley, 218 N.J. Super. 210, 216-18 (App. Div. 1987) (holding that inadvertence was not required when a police officer stationed inside of a tollbooth to detect drunk drivers observed that a driver of a stopped car appeared intoxicated).

According to Polaski's testimony, the police first saw the liquor bottles and condom when looking into defendant's car, which was parked by the side of the road. Polaski used a flashlight to look through the passenger side car window. The use of a flashlight did not "'transform an otherwise reasonable observation into an unreasonable search within the meaning of the Fourth Amendment or under the New Jersey Constitution.'" Johnson, supra, 171 N.J. at 210 (quoting State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999)); see also State v. Moller, 196 N.J. Super. 511, 515 (App. Div. 1984). In daylight the next morning, these items would have been in plain view of passersby and, given their nature, could have tempted someone to break into the car. Upon seeing these items, the police immediately knew that they were evidence of a crime because defendant had been specifically instructed to bring liquor and condoms with him to the rendezvous that day. Thus, the first and third requirements of the New Jersey plain view test would be met if the judge finds that Polaski did in fact see the evidence from outside of the car immediately following defendant's arrest.

We have explained in the context of a home search where we did not suppress evidence that the purpose of the inadvertence requirement is "to prevent the police from engaging in planned warrantless searches, where they know in advance the location of certain evidence and intend to seize it, relying on the 'plain view' exception as a pretext." State v. Damplias, 282 N.J. Super. 471, 478-79 (App. Div. 1995) (finding inadvertence where the police seized a blood-stained blanket they knew was in a home because they were searching the home pursuant to a warrant for other evidence relating to the murder and did not go to the home intending to seize the blanket), certif. denied, 154 N.J. 607 (1998).

The Court also addressed the seizure of evidence in plain view in a home finding that the inadvertence requirement was satisfied in State v. Bruzzese, 94 N.J. 210, 238 (1983), where the police arrested the defendant in his home hoping to see his footwear that matched the footprints at the scene of the crime, and then seized the defendant's boots without a warrant, pursuant to the plain view exception. The fact that the police are aware beforehand that evidence will likely be present at the location of an arrest does not prevent the lawful seizure of that evidence when it is seen in plain view at the time of the arrest.

Here, Polaski told Kern to stop and arrest defendant on an outstanding unrelated warrant for simple assault. Kern arrested defendant and removed him from the car before Polaski approached. Although the police had a reasonable belief that defendant would have this evidence in his car based on their earlier instructions to him, the police did not seize the evidence from the car based on plain view nor did the State ever advance the argument that the plain view exception justified the seizure of the evidence. They did not plan to use this exception as a pretext for a warrantless search of defendant's car. The inadvertence requirement is satisfied notwithstanding the officer's belief that this evidence would be in defendant's car because the police did not stop the car intending to seize the evidence based on plain view. Damplias, supra, 282 N.J. Super. at 479 (to preclude a finding of inadvertence, "[i]t must be shown that the police knew in advance where the evidence was located and intended beforehand to seize the evidence without a warrant."). The police stopped defendant's vehicle to arrest him, not to seize evidence located inside of the vehicle.

Accordingly, if Polaski saw the liquor and condom in plain view while standing outside of the car, as he testified, the police could have lawfully seized the evidence at that time, satisfying all three requirements of the plain view test. See Mann, supra, 203 N.J. at 341 (where the Court found that police lawfully seized drugs in the defendant's car pursuant to the plain view exception after the defendant had been arrested and the officer returned to the vehicle to question its other occupants); see also State v. DiRienzo, 53 N.J. 360, 385 (1969) (where the Court found it was permissible for police to seize an object in plain view from the defendant's automobile parked in his apartment parking lot without a warrant after he had been arrested). If Polaski could have seized these items seen in plain view at the scene, admitting them into evidence would not violate defendant's constitutional rights regardless of the propriety of the subsequent removal of his car.

We, therefore, need not decide at this time the constitutionality of the impoundment of defendant's car. Bruzzese, supra, 94 N.J. at 225; State v. Mangold, 82 N.J. 575, 581 (1980) ("automobile impoundment [is] sanctioned by the 'community caretaking functions' incumbent upon law enforcement officials in situations wherein the public safety and efficient movement of vehicular traffic are jeopardized.") (citing South Dakota v. Opperman, 428 U.S. 364, 368, 96 S. Ct. 3092, 3096, 49 L. Ed. 2d 1000, 1005 (1976)) (citation omitted); State v. Slockbower, 79 N.J. 1, 9 (1979). We do note, however, that Polaski's admission that he drove the car to the police station himself does not affect the lawfulness of the removal of the car. United States v. Smith, 522 F.3d 305 (3d Cir. 2008) (upholding an inventory search after an impoundment for caretaking purposes where an officer drove the vehicle to the police station).

We also need not consider at this time the State's argument that the inevitable discovery and independent source rules would allow admission of the evidence even if the removal of the car to the police station was improper. The independent source doctrine is an exception to the exclusionary rule, which "allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." Holland, supra, 176 N.J. at 354 (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2508, 81 L. Ed. 2d 377, 387 (1984)).

The inevitable discovery doctrine is another exception to the exclusionary rule, which is "analytically similar" to the independent source doctrine because "both are intended to ensure that suppression does not outrun the deterrence objective." Holland, supra, 176 N.J. at 361. "[T]he prosecution is not to be put in an advantageous position by using illegally obtained evidence[]"; however, it should "not be unnecessarily placed in a worse position because of the earlier police misconduct." State v. Sugar (II), 100 N.J. 214, 237 (1985). This doctrine is invoked when "the police have already violated the law," and the evidence "has been obtained unlawfully," or the "defendant's constitutional rights have been denied." Id. at 239. For evidence to be admissible, the State is required to demonstrate by clear and convincing evidence that "the discovery of the evidence . . . would have occurred wholly independently of the discovery of such evidence by unlawful means." Id. at 238.

Rather than decide these issues now, we remand to the trial judge to determine whether the police saw the evidence in plain view through defendant's car window when defendant's car was parked at the side of the road. Such a police observation would have justified a seizure of the evidence at that time. The fact that the police chose instead to drive the car to the police station and leave it for nine days before obtaining a search warrant may indicate some confusion on the part of the police as to New Jersey search and seizure law, but does not constitute an unlawful trespass on the defendant's rights. The judge may choose to hear additional testimony or legal argument before deciding this issue.

R

eversed and remanded for further proceedings in conformance with this opinion.

1 The area is variably spelled Tippon s, "Tippons" or Tippin s pond.

2 Before Polaski's testimony began, defense counsel noted that the tape of the Miranda testimony was faulty, and no record existed of Polaski s testimony concerning the search of the car. The judge indicated he had notes of the testimony from the Miranda hearing. We were ultimately provided with a complete transcript of the Miranda hearing.