STATE OF NEW JERSEY v. ZAAHIRA R. ADAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1112-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZAAHIRA R. ADAMS,

Defendant-Appellant.

________________________________

March 28, 2013

 

Submitted: March 20, 2013 - Decided:

 

Before Judges Axelrad and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-12-2252.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Zaahira Adams appeals from the denial of her motion to suppress the handgun found in her deceased grandmother s former apartment where she was staying at the time of her arrest. She challenges the warrantless entry into the apartment as not justified by any exception to the warrant requirement. We affirm.

In a four-count indictment, defendant was charged with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f)(2) (count two); third-degree receiving stolen property (the handgun), N.J.S.A. 2C:20-7 (count three); and third-degree theft by unlawful taking of moveable property (the handgun), N.J.S.A. 2C:20-3 (count four). Following the denial of her suppression motion, defendant entered into a negotiated plea agreement with the State, under which she entered a guilty plea to count one and the remaining counts were dismissed. On June 18, 2010, the court imposed the recommended five-year custodial sentence with a one-year period of parole ineligibility, along with appropriate fines and penalties. This appeal ensued.

On appeal, defendant contends the warrantless entry into the apartment and subsequent seizure of the handgun violated her reasonable expectation of privacy and constitutional rights, thus the trial court erred in denying her suppression motion. We reject this argument.

Two witnesses, Jersey City Police Department Sergeant Steven Trowbridge and Officer Michael Hulings, testified for the State at the suppression hearing. The defense presented the testimony of Allison Ford, the property manager, and Leslie Coleman, Jr., the senior maintenance repairer. According to the testimony, defendant s grandmother was the lessee of an apartment in the subject public housing complex. Following the grandmother s death, pursuant to the housing authority s policy, Ford entered into an agreement with her daughter, defendant s aunt, to remove the grandmother s belongings and furniture within thirty days and vacate the unit. Ford explained that their regular practice was to change the cylinders on the locks "on the 30th or 31st day" so no one would have access to the unit. Somewhere in this time period, Ford heard that defendant told other tenants she had a gun. Accordingly, for safety reasons, Ford arranged to have police accompany her and Coleman to the subject apartment so they could change the locks.1 Ford testified that defendant was not on the lease and had no permission to be in the apartment beyond the thirty-day clean-up period.

Ford was accompanied by Sgt. Trowbridge, the site-based officer for the complex, and three other officers. When the police arrived at the apartment, they knocked on the door. Defendant asked who was there and the police identified themselves. Defendant opened the door, wearing only a towel. The police asked if they could come in and speak to her, and she said she needed to get dressed, left the door open and "motioned her arm" to come into the apartment. Defendant entered the bedroom that was "less than a foot" to the right of the entrance door and closed the door, and the two testifying officers stepped about three feet into the apartment. About two minutes later defendant exited the bedroom, dressed. Through the open bedroom door, Officer Hulings observed, from about ten feet away, a black semi-automatic handgun protruding from the top of defendant's open pocketbook on the bed inside the bedroom. He seized the weapon, then arrested and charged defendant with the offenses.

The essential inquiry is whether the officer was "lawfully [] in the viewing area" and the plain view exception to the warrant requirement applied to this case. State v. Johnson, 171 N.J. 192, 206-08 (2002). The rationale of the plain view doctrine is that "a police officer lawfully in the viewing area" should not be required to "close his eyes to suspicious evidence in plain view." Id. at 207 (quoting State v. Bruzzeze, 94 N.J. 210, 237 (1983), cert. denied, 465 U.S. l030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). "Because our constitutional jurisprudence evinces a strong preference for judicially issued warrants, the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure [into a dwelling] falls within one of the few well-delineated exceptions to the warrant requirement." State v. Elders, 192 N.J. 224, 246 (2007) (quotation marks omitted).

As a reviewing court, we will uphold the factual findings made by a judge presiding over a suppression motion hearing provided those findings are supported by sufficient credible evidence in the record. Id. at 243. We accord deference to those findings, recognizing that it is the trial judge who has had the opportunity to assess the credibility of witnesses and experiences the feel of the case. State v. Johnson, 42 N.J. 146, 161 (1964).

Under the plain view exception, three requirements must be

satisfied:

First, the police officer must be lawfully in the viewing area.

Second, the officer has to discover the evidence 'inadvertently,' meaning that [the officer] did not know in advance where evidence was located nor intend beforehand to seize it.

Third, it has to be 'immediately apparent' to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.

[State v. Mann, 203 N.J. 328, 341 (2010) (quoting Bruzzese, supra, 94 N.J. at 236.]

We are satisfied the police had a justifiable reason to accompany the apartment manager and maintenance repairer to the subject apartment to change the locks. We are also satisfied defendant voluntarily admitted the police into the apartment.

Moreover, all three requirements for application of the plain view exception to the warrant requirement were met here. The officers were lawfully on the premises to provide protection to apartment personnel, and defendant consented to their entry into the entranceway of the apartment. From this vantage point, Officer Hulings observed the gun a short distance away through the open door in plain sight in defendant's pocketbook on the bed. With respect to the second prong, the officers discovered the evidence inadvertently. The fact they were accompanying the property manager as potential protection is not evidence of their actual knowledge that defendant did, in fact, possess a gun, let alone where the weapon was located within the apartment. Finally, as to the third prong, it is clear the semi-automatic firearm is an item associated with criminal activity. See Mann, supra, 203 N.J. at 341 ("'[I]n order to seize evidence in plain view, a police officer must have probable cause to associate the [item] with criminal activity.'") (quoting Bruzzese, supra, 94 N.J. at 237).

Affirmed.

1 The State did not assert the community-caretaking doctrine to justify the warrantless entry and search of the apartment and it is not an issue in this case. See State v. Vargas, __ N.J. __ (2013).