STATE OF NEW JERSEY v. ROJAM RIDLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ROJAM RIDLEY,

Defendant-Respondent.

___________________________

October 28, 2013

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 12-07-0492.

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for appellant (Robert N. Pollock, Assistant Prosecutor, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

We granted the State's motion for leave to appeal from an April 1, 2013 order entered by Judge Robert B. Reed suppressing a handgun. We now affirm.

Judge Reed conducted a two-day suppression hearing; listened to testimony from three police officers, George Obiedzinski, Timothy Franks, and Christopher Gelardi; and then granted defendant's motion. We discern the following facts from the testimony adduced at the hearing.

Officers Obiedzinski and Franks arrived at an apartment in response to an alleged domestic violence incident between defendant and his girlfriend. The officers arrested defendant on an open warrant and placed him in a police car intending to transport defendant to police headquarters. Before they left the scene, and while defendant was seated handcuffed in the police vehicle, defendant stated to the officers that he wanted his wallet and money from inside the apartment. Officer Franks offered to get both items for defendant.

Franks walked to the apartment front door and a ten-year-old boy handed him defendant's backpack. Defendant did not specifically ask for the backpack. Franks continued into the apartment to get defendant's wallet and money, and spotted defendant's wallet on an ottoman. Defendant's girlfriend, who had remained in the apartment during defendant's arrest, informed Franks that defendant's money was in the backpack. She unzipped a pocket on the outside of the backpack, removed a wad of money, and started thumbing through the money while Franks held the backpack. Franks stopped her and directed her to return the money to the backpack's outside pocket, which she did; Franks walked to the police car with defendant's backpack and wallet. At this time, defendant confirmed the backpack belonged to him. The police then transported defendant to the police station. At headquarters, defendant was handcuffed to a bench in a processing room and Officer Obiedzinski searched the entire backpack, finding the gun.

Judge Reed issued a twelve-page written decision concluding that the State failed to demonstrate that the search of the backpack fell within the consent, plain view, or search incident to arrest exceptions to the warrant requirement. This appeal followed.

On appeal, the State raises the following points:

POINT I

THE TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE BECAUSE ITS DISCOVERY WAS SOLELY AT THE VOLUNTARY REQUEST OF THE DEFENDANT.

POINT II

THE TRIAL COURT ERRED BECAUSE THE SEARCH OF DEFENDANT'S BACKPACK WAS REASONABLE AS A SEARCH INCIDENT TO ARREST.

(Not raised below.)

POINT III

THE TRIAL COURT ERRED BECAUSE THE SEARCH OF DEFENDANT'S BACKPACK WAS JUSTIFIED AS A VALID INVENTORY SEARCH.

(Not raised below.)

In reviewing an order disposing of a motion to suppress evidence we must defer to the trial court's factual findings, "so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). The trial court's application of the law is subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

"The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution both guarantee '[t]he right of the people to be secure . . . against unreasonable searches and seizures[.]'" State v. Shaw, 213 N.J. 398, 409 (2012) (alterations in original) (quoting U.S. Const. amend. IV; N.J. Const. art. I, 7). A warrantless search is presumptively invalid unless the State establishes that the search was justified by a recognized exception to the warrant requirement. State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004), abrogated in part by State v. Edmonds, 211 N.J. 117 (2012). The judge addressed three such exceptions.

The first exception rejected by the judge is based on consent. To justify a warrantless search under this exception, the State must prove that "the consent was voluntary and that the consenting party understood his or her right to refuse consent." State v. Maristany, 133 N.J. 299, 305 (1993). The State must prove voluntariness by "'clear and positive testimony.'" State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000) (quoting State v. King, 44 N.J. 346, 352 (1965)). Furthermore, the State must show that the individual giving consent "knew that he or she 'had a choice in the matter.'" State v. Carty, 170 N.J. 632, 639 (quoting State v. Johnson, 68 N.J. 349, 354 (1975)), modified by 174 N.J. 351 (2002).

There is no evidence in this record to show that defendant consented to a search of his backpack. Even if there were, the officers never informed defendant of his right to refuse or withdraw consent. Thus, the State has not demonstrated that defendant "understood his . . . right to refuse consent," Maristany, supra, 133 N.J. at 305, or that defendant "knew that he . . . had a choice in the matter." Carty, supra, 170 N.J. at 639 (quoting Johnson, supra, 68 N.J. at 354) (internal quotation marks omitted); see also State v. Birkenmeier, 185 N.J. 552, 564 n.3 (2006) (applying the Carty requirement that police must request the consent of a defendant in custody to search something other than a vehicle).

We also reject the State's argument that the officers believed they acted reasonably because they did not have an unlawful pretext to seize a gun from defendant's backpack. This is an insufficient basis to justify a search based on the consent exception to the warrant requirement. See Carty, supra, 170 N.J. at 646 (creating an objective standard for police in obtaining consent); see also Whren v. United States, 517 U.S. 806, 814, 116 S. Ct. 1769, 1775, 135 L. Ed. 2d 89, 98 (1996) (holding that the Fourth Amendment's concern with "reasonableness" relies on objective determinations, irrespective of the subjective intent of the police).

Next, the judge rejected the plain view exception to the warrant requirement. It is well-settled that a warrant is not required to perform a search when (1) a police officer is lawfully present in the viewing area, (2) the officer inadvertently discovers the evidence in plain view, and (3) it is "immediately apparent" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002); see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The record supports Judge Reed's conclusion that the search of defendant's backpack was not justified pursuant to the plain view doctrine. Defendant did not grant permission to Officer Franks to retrieve his backpack and search it. The gun was never in plain view and became visible only after Officer Obiedzinski searched the backpack.

Finally, the judge properly rejected the search incident to arrest exception to the warrant requirement. To determine whether a lawful arrest justifies a warrantless search, courts must consider the scope and timing of the ensuing search. State v. Doyle, 42 N.J. 334, 343-44 (1964). Where a search incident to a lawful arrest takes place outside the context of motor vehicles, the Fourth Amendment allows the arresting police officer less flexibility to conduct a search. State v. Bradley, 291 N.J. Super. 501, 508 (App. Div. 1996). The scope is confined to weapons and evidence that is either on the arrestee's person or within the area of his immediate control. State v. Patino, 83 N.J. 1, 8 (1980) (citing Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969), abrogated in part by Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009)). Additionally, the search must occur contemporaneously with the arrest, meaning that both occur "as parts of a single transaction, as connected units of an integrated incident." Doyle, supra, 42 N.J. at 343. Thus, a warrantless search of a container seized at the time of arrest cannot be justified as incident to arrest if the search is too remote in time or distance from the arrest. Bradley, supra, 291 N.J. Super. at 512 (citing United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 2485, 53 L. Ed. 2d 538, 550-51 (1977), abrogated by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991)). Here, the backpack was not on defendant when the police arrested him and the search was not conducted contemporaneously with defendant's arrest.

The State argues for the first time that the search of defendant's backpack is justified under the inventory search exception to the warrant requirement. It is well-settled that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). This is particularly so when the opportunity to present the question or issue to the trial court was readily available. See Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Nevertheless, we elect to address this contention.

"[T]he inventory search constitutes a well-defined exception to the warrant requirement." Illinois v. Lafayette, 462 U.S. 640, 643, 103 S. Ct. 2605, 2608, 77 L. Ed. 2d 65, 69 (1983) (citing South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976)). In the non-motor vehicle setting, police officers may, without a search warrant, "remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed." Lafayette, supra, 462 U.S. at 646, 102 S. Ct. at 2609, 77 L. Ed. 2d at 71. This search may include "every item carried on or by a person who has lawfully been taken into custody by the police[.]" Id. at 648, 103 S. Ct. at 2610, 77 L. Ed. 2d at 72.

It is clear that defendant did not have his backpack at the time of the arrest. The State contends, without sufficient credible evidence in the record, that defendant voluntarily requested that the backpack accompany him to the police station. Even if that were the case, which it is not, we stated in State v. Padilla, 321 N.J. Super. 96, 110-12 (App. Div. 1999), aff'd o.b., 163 N.J. 3 (2000), that

[T]he personal property of an arrestee may not be searched under the pretext of an inventory search . . . without first affording the arrestee the opportunity to consent to the search or the opportunity to make other arrangements for the disposition of the personal property.

[Id. at 111; see also State v. Mangold, 82 N.J. 575, 585-86 (1980).]

Here, the police did not afford defendant the opportunity to consent to search the backpack or make other arrangements for the disposition of his personal property.

After carefully considering the record and the briefs, we conclude that the State's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).