STATE OF NEW JERSEY v. J.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0586-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.H.,1

Defendant-Appellant.

____________________________________

January 24, 2013

Submitted January 15, 2013 - Decided

Before Judges Reisner and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-08-01130.

Joseph E. Krakora, Public Defender, attorney for appellant (Glenn D. Kassman, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Sarah M. Mielke, Special Assistant Prosecutor, on the brief).

PER CURIAM

Defendant J.H. appeals his conviction following a guilty plea that was entered after the denial of his motion to suppress evidence for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a). We affirm.

I.

We glean the following facts from the motion to suppress. In February 2008, Detective Sheryl Saldida and Detective Alex Scherer became involved in an investigation of eighteen-year-old J.H, after receiving information alleging that he had sexually assaulted a twelve-year-old girl. After taking statements from the victim and her mother, the police officers "decided to go and try and look for [J.H.]."

Just after midnight on February 17, 2008, the officers arrived at J.H.'s residence. They were met at the door of the bi-level house by the owner, A.R., who was J.H.'s stepfather. After identifying themselves as police officers and indicating the nature of their visit, A.R. explained that J.H. resided there, but he was not presently home. A.R. claimed not to know of J.H.'s whereabouts and denied awareness of where J.H.'s mother (A.R.'s estranged wife) resided. Eventually, A.R. invited the police officers inside the dwelling, indicating that if they did not believe him, they could look around for themselves. A.R. led the police officers to J.H.'s second-floor bedroom.

Once at the threshold to the bedroom, A.R. opened the unlocked door. Saldida looked inside and observed a room approximately eight feet wide by ten feet long containing "a box spring and mattress . . . on the floor, a small dresser, and a desk." A.R. and the officers then stepped inside with A.R. having "no concerns with entering the bedroom." Scherer immediately "brought [Saldida's] attention to the wastebasket that was located between the dresser and the desk in the bedroom." According to Saldida, "[Scherer] was literally on top of it because the bedroom is only 8-by-10 and three of us were in there, and when he called my attention to it, he was standing directly over it."

Saldida followed Scherer's suggestion and looked into the wastebasket. She immediately observed "what appeared to be used condoms." Based upon the victim's statement, Saldida understood that "[J.H.] used condoms during . . . sexual encounters." Accordingly, Saldida recognized that the used condoms were "immediately recognizable . . . as something of potential evidential value." She then called A.R.'s attention to the wastebasket, pointed to it and its contents, and "told [A.R.] that's what we're here for."

Scherer immediately produced a written consent to search form that was utilized by the police department.2 Scherer read the form to A.R., indicating also that the consent to search, if granted, would result in the retrieval of the used condoms observed in the wastebasket. A.R. signed the consent to search form.

Following A.R.'s consent, Saldida contacted the Ocean County Sheriff's Department Criminalistics Investigation Unit, which sent a detective to the scene to retrieve the items in the wastebasket. Although not directly pertinent to the issues on appeal, Saldida testified that DNA analyses of the contents of the used condoms revealed J.H.'s and the victim's DNA "amongst one of the condoms."

On December 17, 2009, the motion judge issued an oral decision denying J.H.'s motion to suppress. After summarizing the testimonial evidence and parsing the applicable constitutional principles of law, the judge stated that he was "convinced that [A.R.] had common authority over the room and was therefore able to give a valid consent to search the room." The judge then analyzed whether the State had satisfied its burden of demonstrating the elements of the plain view exception to the requirement for a warrant pursuant to State v. Bogan, 200 N.J. 61 (2009), and State v. Bruzzese, 94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed.

2d 695 (1984). Ultimately the judge found "that the items were properly seized under the plain view doctrine," and denied J.H.'s motion to suppress evidence. A memorializing order was entered on January 7, 2010.

J.H. subsequently pled guilty on October 20, 2010, and was sentenced to seven years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on May 16, 2011. This appeal followed.

II.

On appeal, J.H. raises the following arguments for our consideration:

POINT I: BECAUSE POLICE EXCEEDED THE SCOPE OF [A.R.'S] CONSENT WHEN THEY ENTERED DEFENDANT'S BEDROOM, THE EVIDENCE FOUND IN THE BEDROOM SHOULD BE SUPPRESSED.

A. [A.R.] DID NOT CONSENT TO A SEARCH OF DEFENDANT'S BEDROOM.

B. BY ENTERING DEFENDANT'S BEDROOM, POLICE EXCEEDED THE SCOPE OF THE CONSENT PROVIDED BY [A.R.].

POINT II: BECAUSE POLICE WERE NOT "LAWFULLY IN THE VIEWING AREA" WHEN THEY OBSERVED THE USED CONDOMS IN DEFENDANT'S WASTEBASKET, THE EVIDENCE SHOULD BE SUPPRESSED.

After reviewing the record under the lens of the applicable principles of law, we are satisfied that the Law Division properly denied J.H.'s motion to suppress. Accordingly, we have no basis to disturb either the denial of the motion to suppress or J.H.'s conviction.

A.

Our review of the Law Division's ruling on a motion to suppress evidence is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We "'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.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, we afford deference to a trial judge's findings "'which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Davila, 203 N.J. 97, 109-10 (2010) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). However, our review of the motion judge's legal conclusions is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010) (citing State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff'd, 206 N.J. 39 (2011)), certif. denied, 205 N.J. 78 (2011).

B.

We cannot agree with J.H.'s claim that "the search of defendant's bedroom was unlawful because it exceeded the scope of the limited consent provided by [A.R.]." J.H. narrowly focuses upon what motivated A.R. to allow the police officers into his house: to confirm whether J.H. was present or not. He argues that to facilitate the post-midnight confirmation of J.H.'s absence, all that needed to be done was to look inside the small bedroom, and not enter it at all. J.H. claims that "[t]he detectives in this case could easily have observed from the open door of the sparsely furnished eight foot by ten foot room that the room was unoccupied and the State presented no evidence to suggest that the officers entered the room believing otherwise."

"[T]he touchstone of the Fourth Amendment is reasonableness." Bruzzese, supra, 94 N.J. at 217. "'[T]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'" State v. O'Donnell, 203 N.J. 160, 162 (2010) (quoting Bogan, 200 N.J. at 81 (2009)). We view the officers' actions the taking of a scant step or two into the bedroom to allay their suspicion that J.H. might, in fact, have been secreted therein and then glancing at the wastebasket to be well-within the range of objectively reasonable conduct that does not transgress the Fourth Amendment.

C.

We also disagree with J.H.'s assertion that the seizure of the used condoms was improper in the absence of a search warrant. The plain view doctrine is a recognized exception to the Fourth Amendment's warrant requirement. First, application of the doctrine requires a police officer to be legally positioned in the viewing area. State v. Lane, 393 N.J. Super. 132, 144 (App. Div.), certif. denied, 192 N.J. 600 (2007). Second, the discovery of the evidence must be "inadvertent," meaning that the officer "did not know in advance where evidence was located nor intend beforehand to seize it." Ibid. (citations omitted). "[T]hird, the officer must have probable cause to associate the property with criminal activity." Ibid. In other words, the criminality of the object must be "immediately apparent." Id. at 149; see also Bruzzese, supra, 94 N.J. at 237 ("We do not believe that a police officer lawfully in the viewing area must close his eyes to the suspicious evidence in plain view.").

All of these conditions were satisfied when Saldida and Scherer first observed the wastebasket and its contents amidst the sparse belongings in J.H.'s bedroom. The police officers were investigating a sex crime and had been told that the twelve-year-old victim and J.H. had engaged in protected sexual activities. We conclude that the police officers' conduct in A.R.'s home, including their accompanying him into J.H.'s room, was reasonable, and the seizure of evidence was the product of a plain view observation.

Affirmed.

1 We use initials because this appeal involves a child victim of sexual assault. R. 1:38-3(c)(9).

2 The consent to search form stated, among other things, "This consent is granted without pressure, direct or indirect, being placed on [the consentee], and the full realization that I have the right to refuse to consent and that if I so refuse, no search will be conducted."