STATE OF NEW JERSEY v. ALFRED T. JONES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3830-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALFRED T. JONES, a/k/a

BUTCH JONES, a/k/a JOVAN

JONES,

Defendant-Appellant.

________________________________________________________________

February 15, 2013

Submitted September 19, 2012 - Decided

Before Judges Espinosa and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-03-0682.

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

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After his motion to suppress evidence was denied, defendant pled guilty pursuant to a plea agreement to one count of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). In this appeal, he argues that his motion was improperly denied. We affirm.

Officer Maria Pali of the Atlantic City Police Department was the sole witness at the evidentiary hearing and gave the following account of the pertinent facts.

On January 9, 2010, Pali was assigned to do community policing for the Tactical Unit in a high-crime area. At approximately 12:30 a.m., she and her partner, Officer Brian Mitchell, were dispatched on a "shots fired" call to a neighborhood known as "Back Maryland." Pali testified that she had been called to that area multiple times on calls of "[s]hots fired, homicides, C.D.S. activities." The only information received from Dispatch regarding the "shots fired" call on this occasion was that two suspects got in an unknown car.

When the officers arrived on the scene, they observed a "very loud [and] disorderly" group of approximately forty to fifty people who looked as though they were coming from a house and all going in different directions. There was a maroon Toyota parked about four houses from the location where the shots were reported. Pali testified that she noticed the car because two males were sitting inside with their seats "laid all the way to the back." Pali and Mitchell parked their marked patrol car behind the Toyota. Pali testified that the two males seemed nervous. They were moving around in the car and looking through the rear-view mirror. A female was standing outside the car and talking to the two men through the open passenger-side window. Pali described why she found the behavior of the two males suspicious:

[E]verybody was like running to different directions and cars were leaving the scene and the two gentlemen inside the car, they were just sitting there and not moving and they seemed really nervous, looking behind, looking at us the whole time.

Defendant was later identified as the male sitting in the driver's seat and the male sitting in the passenger seat was identified as co-defendant Tareek Williams.1

Williams got out of the car and walked away with the female. Defendant eventually got out of the car, followed Williams and "was circling around the car[,]" still appearing "very nervous." When defendant caught up with Williams, the two engaged in a brief conversation before defendant returned to the car. Williams and the female continued walking away. When defendant reached the car, he "peeked his head inside" the open passenger-side window. The officers then left their patrol car and walked up to defendant. They asked him for his identification, his name, and where he was coming from. Defendant refused to give his name or provide identification, and told the officers that he had just been walking around the neighborhood. The officers asked defendant if he knew the Toyota. He replied, "no, I have no idea, don't know the car." After Pali told him that she had seen him inside the car with Williams, defendant admitted he had been sitting in the driver's seat and that the car was owned by Williams and the female.

Pali then left Mitchell with defendant while she went to catch up with Williams, who was now a block away. She asked Williams his name and where he was coming from. Williams gave Pali his name and told her he was coming from his girlfriend's house. Pali then asked him about the Toyota and defendant. Williams said, "I don't know them." At this point, Pali decided to temporarily detain Williams. She handcuffed Williams and asked another officer who had arrived at the scene to take Williams in his patrol car to the location where the Toyota remained. Although the female did not provide any identification, Pali did not detain her.

When Pali walked back to the Toyota, she learned that Mitchell had obtained defendant's identification information and allowed him to leave. Pali placed her flashlight next to the open passenger-side window and observed two inches of a gun handle sticking out from underneath the passenger's seat. Mitchell opened the door of the car, retrieved the gun, closed the window, and locked the doors. Pali testified the gun was "cocked" and "ready to use." She also testified that, although many of the people present when she arrived on the scene had left, there were still people from the crowd walking around.

Mitchell left to look for defendant while Pali remained with the car and made arrangements for the car to be towed. While she was waiting for the tow truck, she saw defendant walking back to the Toyota and placed him in custody. A detective in the Forensic Unit arrived within ten minutes to take possession of the gun. A tow truck arrived within five to ten minutes to remove the Toyota.

Pali explained that they did not attempt to obtain a search warrant because

[they] didn't [have] the manpower[.] . . . [I]t was a high-crime area, the gun was cocked, was ready to use . . . and [they] couldn't leave the gun right there in the open with so many people . . . walking around and [they] didn't [have] enough people to stand by the car the entire time [until they got] a search warrant.

The trial court denied defendant's suppression motion on the grounds that the automobile and plain view exceptions to the warrant requirement, as well as the protective search doctrine, all supported the constitutionality of the officers' actions. In this appeal, defendant argues that the reasonableness of the search turns on whether the automobile exception applies and that the motion judge erred in denying his motion because he failed to correctly apply the standards set forth in State v. Pena-Flores, 198 N.J. 6 (2009).

In reviewing a motion to suppress, this 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. Mann, 203 N.J. 328, 336 (2010). A reviewing court must "defer to the trial court's findings that are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case," and may make its own factual findings only if the trial court's findings "are so clearly mistaken that the interests of justice demand intervention and correction[.]" Id. at 336-37 (internal citation and quotation marks omitted). This court owes no deference to the trial court's legal conclusions and "must apply the law as it understands it." Id. at 337.

To pass muster under the Fourth Amendment, a search must be reasonable, a test that is satisfied when a warrant, based upon probable cause, is obtained from a neutral magistrate. State v. Johnson, 171 N.J. 192, 205 (2002). "The cautionary procedure of procuring a warrant ensures that there is a reasonable basis for the search and that the police intrusion will be reasonably confined in scope." State v. Bruzzese, 94 N.J. 210, 218 (1983). Warrantless searches and seizures are presumed invalid, placing the burden on the State to prove by a preponderance of the evidence that an exception to the warrant requirement applies. Mann, supra, 203 N.J. at 337-38.

The automobile exception to the warrant requirement was first articulated in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), and generally "permits warrantless searches of readily movable vehicles if law enforcement officers have probable cause to believe the vehicle contains evidence of a crime." State v. Cooke, 163 N.J. 657, 664 (2000). "The exception applies equally to vehicles stopped on the highway and vehicles parked on a public street or in a parking lot." Ibid. While the exception does not have a separate exigency requirement under federal precedent, Maryland v. Dyson, 527 U.S. 465, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999), our Supreme Court has held that, under the New Jersey Constitution, the automobile exception requires findings of both probable cause and exigent circumstances. Cooke, supra, 163 N.J. at 671. Although defendant concedes that the officers had probable cause to search the vehicle, he argues that, under Pena-Flores, supra, 198 N.J. at 35, the State had to prove there were exigent circumstances to be relieved of their obligation to obtain a telephonic warrant. See R. 3:5-3(b). The State argues that the automobile exception is inapplicable. Rather, it contends that the handgun was lawfully seized pursuant to the plain view exception to the warrant requirement.

The judge found that Pali looked into the car with her flashlight, lighting the area of the car that defendant had been looking into, and "saw a silver gun under the passenger seat, the handle." This finding was supported by the evidence and, because it was not "clearly mistaken," is entitled to our deference. See Mann, supra, 203 N.J. at 336-37.

In order to invoke the plain view exception to the warrant requirement, three elements must be satisfied: (1) "the police officer must be lawfully in the viewing area[;]" (2) the officer must "discover the evidence 'inadvertently,' meaning [the officer] did not know in advance where evidence was located nor intend beforehand to seize it[;]" and (3) "in order to seize evidence in plain view a police officer must have probable cause to associate the [item] with criminal activity." Id. at 340-41.

The first element is clearly satisfied because Pali was lawfully standing on a public street when she was able to see the handle of the handgun, using only her flashlight. Because the "plain view" observation was made without any intrusion, the second requirement that the discovery be inadvertent is irrelevant. State v. Foley, 218 N.J. Super. 210, 216 (App. Div. 1987); see also State v. Pineiro, 369 N.J. Super. 65, 72 (App. Div.), certif. denied, 181 N.J. 285 (2004). As noted, defendant concedes that the officers had probable cause, satisfying the third requirement. Thus, the plain view exception requirements were satisfied.

There was, therefore, no search to implicate the Fourth Amendment. As we stated in Foley, supra,

A simple observation into the interior of an automobile by a police officer located outside the automobile is not a 'search' within the meaning of the Fourth Amendment. There is no legitimate expectation of privacy . . . shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers.

[218 N.J. Super. at 215-16 (internal citations and quotation marks omitted).]

We reiterated in State v. Johnson, 274 N.J. Super. 137 (App. Div.), certif. denied, 138 N.J. 265 (1994), that "the viewing of objects which are in plain view within an automobile does not constitute an unlawful search." Id. at 154. Further, an officer's use of a flashlight to view the interior of a car "[does] not transform an otherwise proper plain-view observation into an impermissible search." State v. Nishina, 175 N.J. 502, 517-18 (2003); see also Texas v. Brown, 460 U.S. 730, 740, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502, 512 (1983); Johnson, supra, 171 N.J. at 210.

We therefore turn to the officers' warrantless seizure of the handgun, which the State argues was justified under the plain view exception. However, the "plain view" observation alone does not justify a warrantless seizure. Pineiro, supra, 369 N.J. Super. at 73; see also Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022, 2039, 29 L. Ed. 2d 564, 584 (1971).

[E]ven when police make a plain view observation of evidence or contraband without a prior search, they are not automatically entitled to seize them. [P]lain view alone is never enough to justify the warrantless seizure of evidence. [T]o justify [a] warrantless seizure[,] . . . not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself. Consequently, a police officer may seize an item revealed by a plain view observation only if the officer has probable cause to believe that the item is contraband or evidence and the seizure can be made without intruding into any constitutionally protected area or the intrusion can be made in conformity with the Fourth Amendment.

[(Pineiro, supra, 369 N.J. Super. at 73-74 (emphasis added) (internal citations and quotation marks omitted).]

See also Johnson, supra, 171 N.J. at 208 ("The question whether property in plain view may be seized . . . must turn on the legality of the intrusion that enables them to . . . physically seize the property in question.").

In this case, the lawfulness of the officer's right of access to the handgun must be measured by whether there were exigent circumstances that would excuse the officers' failure to obtain a warrant. Exigent circumstances exist "when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." State v. Johnson, 193 N.J. 528, 553 (2008). "The question of whether exigent circumstances exist is to be determined . . . on a case-by-case basis with the focus on police safety and preservation of evidence." Pena-Flores, supra, 198 N.J. at 11.

With respect to exigency, the motion judge stated,

Quite frankly, I don't know what would be more fluid and more ongoing and more exigent than coming upon a scene with 40 to 50 people, shots fired, three people get out of a car, targeted people because there's some tip about that parked car being involved, two of the people being on the loose, simply flashing a light into the car to look at what one of the occupants was looking at in the car, in my view totally one hundred percent reasonable. And then seeing in plain view a gun.

We agree. The officers responded to a call of "shots fired," a "serious call" in a "high-crime area" known to the officers for gun use and homicides. When the officers arrived, the scene was chaotic, with a large number of "disorderly" people scattering. A number of those people were still in the vicinity when the gun was observed in an unlocked car with the passenger window open. Although Williams was in custody, defendant's whereabouts were unknown. Only Pali, Mitchell, and Officer Imman, the officer who was monitoring the patrol car containing Williams, were in the exact location of the handgun at the time of its discovery. The other police units that responded to the call were patrolling different areas of the neighborhood, and were many blocks away. This remained a fluid situation that was not entirely within the control of the police.

We also note that the seizure here was effected through a very limited intrusion into the unlocked automobile. As the motion judge noted, the officers "saw the gun in plain view, they took it and they didn't even rip the car apart and look for [other] weapons or whatever else." The officers merely did what was necessary to secure the scene and prevent the gun from being used by defendant or any member of the "disorderly" group that was still in the area.

In sum, the observation of the gun was made without any search and the police intrusion to seize the gun was limited to what was necessary to secure the weapon. Thus, both the observation and the seizure were effected in a manner consistent with the objectives of the warrant requirement -- to ensure a reasonable basis for any search and that the intrusion be "reasonably confined in scope." See Bruzzese, supra, 94 N.J. at 218. "The 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. Bogan, 200 N.J. 61, 81 (2009). We are satisfied that the limited police intrusion here was justified by the attendant facts as a reasonable action to maintain "police safety and preservation of evidence." Pena-Flores, supra, 198 N.J. at 11.

1 Williams was charged with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), fourth-degree possession of handgun ammunition without a carry permit, N.J.S.A. 2C:58-3.3(b), and possession of a weapon by a convicted felon in violation of N.J.S.A. 2C:39-7.