STATE OF NEW JERSEY v. COREY JETER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0502-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY JETER,

Defendant-Appellant.

__________________________________

February 13, 2013

Submitted September 4, 2012 - Decided

Before Judges Nugent and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-04-0798.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor,attorney forrespondent (Monalisa Tawfik, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Following denial of his motion to suppress evidence seized from a warrantless search of an automobile in which he was a passenger, defendant Corey Jeter entered a plea of guilty to third-degree possession of heroin with the intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7. He also pleaded guilty to third degree absconding from the Intensive Supervision Program (ISP), N.J.S.A. 2C:29-5(b).1 He was sentenced to an extended six-year term on the school zone charge, subject to a mandatory three-year period of parole ineligibility. He was also sentenced to a concurrent five-year term on the escape charge. Defendant now appeals from the denial of his suppression motion, and the court's denial of certain jail credits. We affirm.

I.

A.

We defer to the trial court's factual findings on a motion to suppress. "[A]n appellate court reviewing a motion to suppress 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) (citation and quotation omitted). In particular, we defer to the trial judge's credibility findings. "An appellate court should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id. at 244 (citation and quotation omitted). However, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super.325, 328 (App. Div. 1999).

Applying that standard of review, we discern substantial credible evidence in the record to support Judge Frederick J. Theemling, Jr.'s findings of fact on the motion to suppress. Of three witnesses who testified at the suppression hearing, the trial court credited the testimony of two Jersey City police officers, Ray Weber and Robert Baker.

Officer Weber was conducting surveillance on January 9, 2010 at about 5:00 p.m. in the area of Forrest Street and Martin Luther King Drive, an area of high narcotics crime activity. He observed a car pull up, and saw defendant, a front-seat passenger, exit. Defendant walked over to two men who had been standing on the corner with currency in their hands. They gave currency to defendant, who counted it. Defendant then removed a small black bag from his jacket, took "a small object or objects from that bag" and gave it to each man. Defendant then returned the bag to his jacket and returned to the car, which pulled off.

The officer could not identify the objects taken from the bag. However, based on his experience, Officer Weber believed he had witnessed the distribution of a controlled dangerous substance (CDS). He radioed to officers in nearby patrol cars, describing defendant, the black bag, and advising them to stop the vehicle, a Pontiac Sunfire. Officer Baker and his partner Dennis Winters complied, stopping the Pontiac.

Once the motor vehicle was stopped, Officer Baker approached defendant on the passenger side as Officer Dennis Winters approached the driver's side. Officer Baker testified that he advised defendant that the officers were conducting a narcotics investigation, and "we also asked him, is there anything that's in the car that's not suppose[d] to be in the car? Which he stated, to me that he had heroin on him." Officer Baker testified that defendant "handed me the heroin with his right hand."

As defendant did so, Officer Baker saw him drop to the car floor what he described as a "small little pouch, like a velvet pouch," about three inches in size, with a draw-string closure. Officer Baker commanded defendant to exit the motor vehicle, and he was placed under arrest.

The officer then recovered the black bag from the car floor. The bag was closed. But, as the officer held it, he could feel vials inside the bag. The officer opened it and found thirty-four bottles of cocaine in the bag.

Defendant testified at the suppression hearing. He denied that he engaged in a transaction with two individuals on a corner. He also denied that he admitted possessing heroin or that he surrendered heroin to the officers. He claimed that shortly after he went to a liquor store to buy cigarettes, police stopped the car in which he was passenger, and arrested him. He denied having possession of a black bag in the car.

Judge Theemling rejected defendant's challenge to both the motor vehicle stop, and the seizure of the heroin and cocaine. He found that the police had probable cause to believe that defendant had engaged in a crime. The judge found it plausible that defendant would voluntarily surrender the heroin, while attempting to hide the "biggest part of his stash" in the black bag.

Defendant raises the following points on appeal in connection with his motion to suppress:

POINT I

SINCE THERE WAS NO REASONABLE SUSPICION TO STOP THE VEHICLE, THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED.

POINT II

THE COCAINE RECOVERED FROM THE BLACK BAG FOUND ON THE FLOOR OF THE CAR SHOULD HAVE BEEN SUPPRESSED SINCE IT WAS NOT FOUND IN PLAIN VIEW OR AS A RESULT OF ANY EXIGENCY.

POINT III

DEFENDANT'S JAIL CREDIT SHOULD HAVE INCLUDED CREDIT FROM THE IMPOSITION OF THE ISP DETAINER, JANUARY 12, 2010, TO THE TIME HE "MAXED OUT" ON ISP, AUGUST 27, 2010, PURSUANT TO STATE V. HERNANDEZ, 208 N.J.24 (2011).

B.

We are guided by well-established principles. A police officer may, without a warrant, conduct an investigatory motor vehicle stop based on a reasonable and articulable suspicion that the defendant has engaged in criminal activity. State v. Golotta, 178 N.J. 205, 212-13 (2003); see also State v. Puzio, 379 N.J. Super. 378, 381 (App. Div. 2005). The requisite suspicion

must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[State v. Davis, 104 N.J.490, 504 (1986).]

An officer who personally made no observations on which to ground a reasonable and articulable suspicion may conduct a stop in reliance upon evidence gathered, or observations made, by other officers. State v. Crawley, 187 N.J.440, 457, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).

The investigatory stop may not be predicated on "unparticularized suspicion or 'hunch.'" Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968). Rather, the officer must be able to base his actions on "specific and articulable facts" and rational inferences from those facts. State v. Amelio, 197 N.J.207, 212 (2008) (citation and quotation omitted), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009); see alsoGolotta, supra, 178 N.J.at 221 (anonymous 911 caller "must convey an unmistakable sense that the caller has witnessed an ongoing offense"); State v. Nishina, 175 N.J.502, 511 (2003) (State must possess "some minimal level of objective justification for making the stop") (citation and quotation omitted).

The State bears the burden to "demonstrate by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion." Amelio, supra, 197 N.J. at 211.

Applying these standards, we find ample evidence in the record to support the stop. Officer Weber observed defendant exchange items from a black bag for cash from two men standing on a street corner. Under the totality of circumstances, and in the exercise of his knowledge and experience, Officer Weber formed a reasonable and articulable suspicion that the transaction involved drugs. The transaction occurred in a high narcotics crime area at nighttime. The officer saw two men counting currency on a street corner, appearing to be waiting for someone. The vehicle carrying defendant pulled up to the opposite corner, and he walked to meet the two men. They handed cash to defendant, who counted it first, then removed the black bag and handed items from it to the two men. Defendant then departed quickly.

It is of no moment that defendant and the two men may have exchanged something other than drugs. "The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions. . . ." State v. Citarella, 154 N.J.272, 279 (1998).

In the course of conducting their investigatory stop, the officers appropriately asked defendant if he possessed anything he was not supposed to have. According to Officer Baker, defendant then admitted he possessed heroin and surrendered it to the officer. We discern no basis to disturb the trial judge's denial of the motion to suppress the fruits of the stop, or the heroin.

However, defendant argues that even if the motor vehicle stop were authorized, the officer's subsequent seizure of the black bag and its contents was unlawful. We disagree, as the black bag was observed in plain view, the officers already had probable cause to believe that the black bag contained CDS, and Officer Weber discerned the contents of the bag before opening it by "plain feel."

A police officer may seize evidence in plain view without a warrant if the officer is "lawfully . . . in the viewing area," he discovers the evidence inadvertently, and it is immediately apparent the object viewed is "evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J.192, 206-07 (2002). The Supreme Court applied the plain view doctrine to a motor vehicle stop in State v. Mann, 203 N.J.328 (2010). After observing what police believed to be a drug transaction involving a passenger in a parked vehicle, the police approached the vehicle. Id.at 334. The defendant fled into a restaurant, where police apprehended him as he attempted to flush drugs down a toilet. Ibid. The police then returned to the defendant's vehicle to question the remaining occupants. Ibid. The officer looked through an open window, saw in plain view several plastic bags that he believed contained CDS, and seized them. Id.at 334-35.

The Court held the seizure valid under the plain view exception.

It is apparent from the trial court's findings that all three requirements of the plain view exception are satisfied here. First, [Officer] Laraway was lawfully standing outside the Yukon when he looked inside the open window and observed the suspected drugs. Second, he did not possess advance knowledge that the drugs would be there. Third, upon seeing the plastic bags on the seat, it was immediately apparent to Laraway, based on his training and experience, that the bags contained suspected drugs.

Stated differently, Laraway was lawfully in the viewing area and, when he observed the drugs, he had probable cause to associate the bags of suspected drugs with criminal activity. We conclude that the plain view exception to the warrant requirement applies, and that Laraway's seizure of the drugs from the back seat of defendant's vehicle was lawful.

[Id. at 341.]

Applying these principles, we conclude Officer Baker was authorized to seize the black bag. Defendant concedes it was in plain view. And, like the officer in Mann, Officer Baker was lawfully in the viewing area and discovered the bag inadvertently, that is, he had no advance knowledge of its specific location. SeeState v. Damplias, 282 N.J. Super.471, 478-79 (App. Div. 1995) (stating that inadvertence requirement is intended "to prevent the police from engaging in planned warrentless 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").

And, as did the officer in Mann, Officer Bakerhad probable cause to associate the bag with criminal activity. Supra, 208 N.J.at 341; see alsoState v. Brown, 205 N.J.133, 144 (2011) ("Although it is difficult to define the concept with precision, probable cause requires more than a mere suspicion of guilt but less evidence than is needed to convict at trial.") (quotation and citation omitted). Officer Weber saw defendant remove items from the small black bag, and exchange them on a street corner for cash. Officer Weber suspected the bag contained drugs; at the very least, it contained items of value, exchangeable for cash. Officer Weber conveyed his observations to the arresting officers. Defendant then admitted to Officer Baker that he possessed heroin, while trying to prevent discovery of the black bag. Although it contained items of value, defendant discarded it in the car. The totality of these circumstances created probable cause to believe the bag was evidence of a crime.

Defendant argues that while the black bag may have been in plain view, its contents were not, and the police required a warrant to open the bag and seize its contents. We disagree. We recognize that the Fourth Amendment protects the owner of a "container that conceals its contents from plain view." Johnson, supra, 171 N.J.at 213 (quotation and citation omitted). However, this is not a case where the police seized an innocuous container and then opened it to search its unknown contents. Officer Baker had identified the bag's contents before opening it. He testified he "could feel the vials inside the bag." We recognize Officer Baker did not expressly testify that he recognized the vials to be vials of drugs. But, we consider it implicit, by his reference to "the vials," and the circumstances that preceded his feeling the bag.

The officer's search of the bag's contents falls within the "plain feel" or "plain touch" exception. "[A]ssuming lawful physical contact with the container, . . . 'plain touch' may reveal the contents so unquestionably that here as well no warrant requirement exists merely because there is a container between the officer and the seizable object." 3 Wayne R. LaFave, Search and Seizure 5.5(f) (5th ed. 2002).

We have upheld a search and seizure on "plain feel" grounds in the context of a lawful pat-down search. State v. Toth, 321 N.J. Super.609, 614-16 (App. Div. 1999). "Thus, '[i]f a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy[.]'" Id.at 614 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 334, 346 (1993)). The seizure is justified for the same reasons that support a plain view seizure. Toth, supra, 321 N.J. Super.at 615.

The Court in Johnson, supra, suggested that whether a container's contents are visible is only one factor in determining whether there is probable cause to seize and open the container. 171 N.J.at 214. Visibility, therefore, is not a prerequisite, if there is other evidence to support probable cause that the container contained contraband. The Court distinguished a clear plastic bag from an opaque container "where there were no surrounding circumstances to support probable cause that the cannister contained drugs." Id.at 218. However, the Court made clear that an opaque container can be seized pursuant to the plain view exception if there is evidence of its contents:

Based on the totality of the circumstances presented to Officer Wilson, the present case is analytically indistinguishable from Texas v. Brown, supra, 460 U.S. [730] at 733-35, 103 S. Ct. [1535] at 1539-40, 75 L. Ed 2d [502] at 508-09 [(1983)]. There, the officer seized an uninflated, opaque party balloon that he saw on the front seat of the defendant's car. Id. at 733, 103 S. Ct. at 1539, 75 L. Ed. 2d at 508. The Supreme Court sustained the search under the plain view doctrine, noting that the balloon, innocuous in some situations, was so probative of a criminal purpose that the police had probable cause to justify the warrantless seizure. Id. at 742-43, 103 S. Ct. at 1543-44, 75 L. Ed. 2d at 513-15. The Court also observed that an officer's inability "to see through the opaque fabric of the balloon [was] all but irrelevant: the distinctive character of the balloon itself spoke volumes as to its contents particularly to the trained eye of the officer." Ibid. Similar to the officer in Texas v. Brown, who testified that, based on his experience, he was aware that narcotics were frequently packaged in such balloons, Officer Wilson testified that, based on his experience, he was convinced that the "light-colored" object contained drugs, and that crack cocaine was often packaged for distribution in plastic zip-lock baggies.

[Johnson, supra, 171 N.J. at 218-19.]

Applying the same reasoning to this case, it was immediately apparent based on the totality of the circumstances including the officer's feel of the bag that the black bag contained drugs, thus satisfying the third prong of the plain view exception.2

II.

We turn to defendant's argument that the court erred in its calculation of jail credits. He relies on State v. Hernandez, 208 N.J.24 (2011), which was decided the month after defendant was sentenced.

These are the relevant facts. Defendant was arrested on January 9, 2010 on the CDS charges and remained in custody until sentencing on May 12, 2011. Defendant had earlier absconded from the Intensive Supervision Program (ISP). Defendant had been sentenced on May 19, 2008 to a three-year term for possession of CDS, N.J.S.A.2C:35-10a(1). On August 28, 2008, he had entered the Intensive Supervision Program. Shortly after his incarceration on the CDS charges, an ISP detainer was lodged against defendant, preventing his release on bail. The record does not include an order of the ISP panel resentencing defendant for absconding from the program, but we presume he was returned to prison to serve his original sentence. SeeState v. Clay, 230 N.J. Super.509, 516 (App. Div. 1989) (describing resentencing process when ISP participant fails to perform satisfactorily in the program). Defendant concedes that he served the remainder of his sentence on the 2008 conviction between January 12 and August 27, 2010.

Defendant's presentence report reflects that defendant was entitled to only four days of jail credit on the heroin-related charge, from January 9 to 12, 2010, and 258 days on the absconding from ISP charge, from August 28, 2010 to May 12, 2011 (anticipating sentencing one day later than it actually occurred). At sentencing, defense counsel urged the court (1) to award credits for the August 28, 2010 to May 11, 2011 period against the sentence for the drug charge, instead of the absconding charge; and (2) to award credits against the sentence for the drug charge for the period January 12 to August 27, 2010, when defendant was serving a sentence on the 2008 conviction. The court granted the first request, but denied the second.

Defendant argues that Hernandezcompels the award of jail credit while serving the ISP term. Without addressing the merits of defendant's argument, the State responds that Hernandezdoes not apply retroactively to defendant's case.

We conclude that Hernandezapplies to defendant's sentence, but does not change the result. Although the Court stated that its decision would generally "apply only prospectively" to sentences imposed the day after the opinion was released, the Court provided an exception "for those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Supra, 208 N.J.at 51. It is evident from our review of the sentencing transcript that defendant "questioned or challenged" the denial of credits for the January 13 to August 27, 2010 period. He then duly raised the issue on appeal.

However, we see no basis in Hernandezfor increasing the jail credits on the sentence for the drug charge. Defendant recognizes that a defendant would not be entitled to jail credit for a custodial period resulting from a parole detainer. SeeHernandez, supra, 208 N.J.at 43 (reaffirming principle that a defendant does not earn pre-sentence jail credit on new charge while in custody on a parole warrant, or while serving a sentence after parole revocation). However, he argues that a custodial period resulting from an ISP detainer has a different effect. We disagree.

The Court emphasized that Hernandez, and Rose, the defendant in the companion case, were seeking "jail credit for time spent in presentence custody on multiple charges and are not seeking jail credits for time accrued after imposition of a custodial sentence." Id.at 45 (emphasis added). However, unlike Hernandez and Rose, defendant here asks the court to apply jail credit to his 2011 drug conviction sentence for "time accrued after imposition of a custodial sentence." As the Court reaffirmed, in discussing State v. Black, 153 N.J.438 (1998) and State v. Carreker, 172 N.J.100 (2002), "defendants . . . serving a custodial sentence . . . were not entitled to presentence jail credits against a new sentence for time served in custody while those new charges were pending." Hernandez, supra, 208 N.J.at 44. Therefore, Hernandezoffers no basis for the relief defendant requests.

A

1 The title of the provision is "Absconding from parole," but includes within the meaning of "parole" participation in ISP. To highlight that defendant was on ISP, and not on parole, we refer to his crime as absconding from ISP.

2 Given our disposition, we need not decide the State's argument that even if the cocaine should have been suppressed, the court's decision denying suppression was harmless because defendant pleaded to a count involving heroin, not cocaine. But see State v. DiLoreto, 362 N.J. Super. 600, 616 n.6 (App. Div. 2003) (stating that defendant may withdraw a guilty plea "[i]f the defendant simultaneously pleads to multiple indictments and the pre-plea motion relates to only one[.]"), aff'd, 180 N.J. 264 (2004).