STATE OF NEW JERSEY v. HENRY J. MITCHELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5380-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HENRY J. MITCHELL,

Defendant-Appellant.

________________________________

December 19, 2013

Submitted June 25, 2013 - Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 10-07-1255, 10-12-2308 and 11-09-1776.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his suppression motion, defendant negotiated a plea agreement and pled guilty to various narcotics offenses, specifically third-degree possession of cocaine and heroin, N.J.S.A. 2C:35-10a(1), third-degree distribution of cocaine, N.J.S.A. 2C:35-5b(3), and third-degree resisting arrest, N.J.S.A. 2C:29-2a(2). On appeal defendant contends:

POINT ONE

THE POLICE OFFICER WAS A DE FACTO PEEPING TOM, VIOLATING DEFENDANT'S REASONABLE EXPECTATION OF PRIVACY IN THE CONVERSION VAN BY SPYING INTO THE VAN FROM CLOSE DISTANCE THROUGH A FOUR TO FIVE INCH GAP AT THE BOTTOM OF A LARGE PICTURE WINDOW OTHERWISE ENTIRELY COVERED BY BLINDS. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.

We reject defendant's contention that the arresting officer was effectively a "Peeping Tom" when he "stealthily approached the conversion van to look through a four to five inch gap at the bottom of a large picture window." We affirm substantially for the reasons expressed by Judge Jamie Perri, in her cogent and well-reasoned June 2, 2011 oral opinion.

I.

We derive the facts from the sole witness who testified at the suppression hearing, Matthew Lloyd, an Aberdeen Township police officer. Officer Lloyd testified that he was on routine patrol in the area of Kennedy and Ruth Lanes around 7:00 p.m., on January 21, 2010. He described the area as a location known for a high level of narcotics activities. His attention was drawn to a Chevrolet conversion van parked inside of the curve of the roadway. As a result of the vehicle's location, a portion of it actually protruded into the traveled portion of the roadway. As the officer drove past the vehicle, he shined his high intensity light on the vehicle and observed two individuals seated in the captain's chairs, located in the rear of the vehicle. He saw no one seated in the driver's seat.

Officer Lloyd testified he circled the area and then parked his patrol vehicle to investigate the matter further. He indicated that he approached the vehicle from its rear in a "stealth-like" manner in order not to alert the occupants. He described the street lighting where the vehicle was parked as aiding his observations. He positioned himself to look into the vehicle. He described the side of the van as having a large picture window, which included a window sill, large enough to hold items. He observed that the window also had blinds, which were raised approximately four to five inches from the window sill. As he made his observations, the officer saw a digital scale which held a large off-white rock-like substance. Based upon his experience and training, he concluded the occupants were engaged in narcotics activities. He radioed for assistance.

Officer Lloyd believed, however, the occupants in the vehicle heard his radio transmission. He therefore removed his weapon from its holster, opened the front driver's side door and, in doing so, observed a third individual seated in the right front passenger's seat. He ordered the three individuals to raise their hands. One individual, later identified as defendant, did not comply. Instead, defendant fled from the van through a side cargo door.

Officer Lloyd pursued defendant, who discarded an object from his pocket as he fled. The officer caught up with defendant, tackled him and placed him under arrest. Police recovered the discarded object, which was later determined to be heroin.

Judge Perri credited this testimony. She noted that Officer Lloyd had considerable background and experience as a police officer, which included specialized training in narcotics activities and two years working with the Monmouth County Prosecutor's Office Narcotics Strike Force Unit. The judge was satisfied that, based upon the totality of the circumstances, Officer Lloyd had a reasonable and articulable suspicion defendant was engaged in narcotics activities. She found the officer had the right to be where he was at the time he made his observations by looking into the van's window, and that based upon those observations, there was probable cause to arrest the occupants in the vehicle for suspected narcotics activities.

II.

Both the federal and state constitutions guarantee the right of the people to be free from unreasonable searches or seizures. State v. Johnson, 193 N.J. 528, 552 (2008). "Warrantless searches are presumptively unreasonable and thus are prohibited unless they fall within a recognized exception to the warrant requirement." State v. Pena Flores, 198 N.J. 6, 18 (2009). Those exceptions "include, among others, plain view, consent, community caretaking, search incident to arrest," ibid., and the search of an automobile under "exigent circumstances" where it is "impracticable to obtain a warrant." Id. at 28. However, application of any exception must be accompanied by the presence of probable cause to conduct the search. Ibid.

Police encounters with individuals generally occur at three distinct levels: a field inquiry; an investigatory stop; and/or an arrest. State v. Nishina, 175 N.J. 502, 510-11 (2003). There are constitutional considerations at all levels of encounters, but the most demanding constitutional standard is reserved for an "arrest," which requires a showing of probable cause, based upon the totality of the circumstances. Ibid. In State v. O'Neal, 190 N.J. 601, 612 (2007), the Court described the probable cause standard as a well-grounded suspicion that criminal activity is occurring or has occurred and it exists where

the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.

[Id. at 612. (alterations in original) (citation omitted).]

Consideration of the totality of the circumstances is essential to a determination that probable cause exists. Ibid.

Judge Perri found that the plain view exception to the warrant requirement applied because Officer Lloyd "was lawfully in the viewing area. The evidence was discovered inadvertently and it was immediately apparent to the officer that the items in plain view were evidence of a crime, contraband or otherwise, subject to seizure."

The plain view exception to the warrant requirement

first requires the officer to "lawfully be in the viewing area." State v. Johnson, 171 N.J. 192, 206 (2002) (citing Coolidge v. New Hampshire, 403 U.S. 443, 465 68, 91 S. Ct. 2022, 2037 39, 29 L. Ed. 2d 564, 582 84 (1971)). 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." State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).1 And, third, the officer must have probable cause to associate the property with criminal activity. Texas v. Brown, 460 U.S. 730, 738, 103 S. Ct. 1535, 1541, 75 L. Ed. 2d 502, 511 (1983) (plurality opinion).

[State v. Lane, 292 N.J. Super. 393, 144 (App. Div. 2007).]

Defendant essentially challenges the third prong of the plain view exception doctrine, urging that Officer Lloyd's observations were not inadvertent but the result of him being what defendant characterizes as a "Peeping Tom." We disagree.

The inadvertent prong of the plain view exception to the warrant requirement requires a finding that Officer Lloyd "did not 'know in advance the location of the evidence and intend to seize it, essentially relying on the plain-view doctrine only as a pretense." State v. Johnson, supra, 171 N.J. at 211 (quoting Coolidge v. New Hampshire, supra, 403 U.S. at 470, 91 S. Ct. at 2040, 29 L. Ed. 2d at 585). The evidence Judge Perri credited established that Officer Lloyd's attention was drawn to the conversion van because it was illegally parked. As he drove by, he noticed there was no occupant in the driver's seat but observed two persons seated in the rear of the vehicle. He was also aware that the area was noted for criminal activity. Based upon his background and experience, he reasonably decided to investigate the situation. When he looked into the window from a position where he was lawfully located, a public street, he observed a digital scale on the window sill atop of which was a large amount of an off-white rock-like substance, which he suspected was cocaine. These facts, which Judge Perri credited, are distinguished from those circumstances where law enforcement officers knew in advance the location of the evidence and, from the outset, intended to seize it, thus using "the plain-view doctrine only as a pretense." State v. Johnson, supra, 171 N.J. at 211.

Furthermore, the expectation of privacy in an automobile is not co-extensive with the expectation of privacy in a residence; rather, "[t]here is a lesser expectation of privacy in one's automobile . . . than in one's home." State v. Johnson, 168 N.J. 608, 625 (2001) (internal citations omitted). "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." State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987) (citing Texas v. Brown, 460 U.S. 730, 739 740, 103 S. Ct. 1535, 1541 42, 75 L. Ed. 2d 502, 511 12 (1983)). "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 . . . diligent police officers." Id. at 216 (quoting Texas v. Brown, supra, 460 U.S. at 740, 103 S. Ct. at 1542, 75 L. Ed. 2d at 513). Thus, an observation of contraband which is in plain view from outside a vehicle does not constitute a search. State v. Johnson, 274 N.J. Super. 137, 154 (App. Div.), certif. denied, 138 N.J. 265 (1994).

Nor did Officer Lloyd's conduct violate defendant's reasonable expectation of privacy under State v. Saez, 139 N.J. 279 (1995), cert. denied, 516 U.S. 906, 116 S. Ct. 273, 133 L. Ed. 2d 194, (1995), upon which defendant relies to challenge the underlying seizure of the contraband here. There, a citizen-informant reported that she was able to observe narcotics activities in her neighbor's basement through cracks in a common wall between the two residences. State v. Saez, 268 N.J. Super. 250 (App. Div. 1993), rev'd, 139 N.J. 279 (1995). Police confirmed those observations by making similar observations from the neighbor's basement. Id. at 257. On direct appeal, we were satisfied that "both the United States Supreme Court and our own Supreme Court would conclude, under the facts . . . that a person conducting activities within the confines of his own residence, and taking precautions to have those activities obscured from public view, would have a reasonable expectation of privacy in such activities." Id. at 261-62. We nonetheless upheld the warrantless search based upon the "'third party' intervention exception." Id. at 262-64. Although the Supreme Court reversed, because it found that the extended and continuous surveillance of the basement was a significant expansion of the neighbor-informant's prior observation, it did not address our conclusion that the defendants retained an expectation of privacy concerning their activities in the basement. Saez, supra, 139 N.J. at 281. Both the majority and the dissenting judge agreed the measures the defendants took to conceal their activities evidenced their reasonable expectation of privacy as to the activities being conducted in the basement. Ibid.

Here, there was no extended or continuous surveillance on the part of Officer Lloyd into defendant's activities. Thus, defendant's reliance upon Saez is misplaced. In addition, unlike the present automobile search, Seaz involved an individual's privacy interests in a residential building, a context that generally triggers more stringent constitutional review of police activity. See, e.g., Florida v. Jardiner, __ U.S. ___, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013); State v. Vargas, 213 N.J. 301, 313 (2013).

1 The United States Supreme Court has indicated that the inadvertence element may no longer be required. See Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990); see also State v. Johnson, 171 N.J. 192, 213 (2002).