STATE OF NEW JERSEY v. ARTHUR LEWIS

NOT FOR PUBLICATION WITHOUT THE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.

ARTHUR LEWIS,

Defendant-Respondent.

October 20, 2014

Argued October 8, 2014 Decided

Before Judges Waugh and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-02-0197.

William P. Fisher, Assistant Prosecutor, argued the cause for appellant (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Fisher, of counsel and on the brief).

John W. Hartmann argued the cause for respondent.

PER CURIAM

We granted the State's motion for leave to appeal from a January 23, 2014 amended order entered by Judge Thomas W. Sumners, Jr. suppressing a handgun, and a January 27, 2014 order denying reconsideration. We now affirm.

I.

Trenton Police Detective Aaron Bernstein was the State's sole witness at the evidentiary hearing held on defendant's motion to suppress. Bernstein testified that on October 4, 2012, at approximately 11:10 p.m., while on patrol with Detective Jason Astbury, they observed fifteen individuals congregated around two vehicles in the parking lot of a Trenton housing project. Bernstein described it as a high crime area, known for illegal narcotics and gang violence. As the detectives approached, they heard blaring music coming from the vehicles and saw people drinking alcohol in public.

As the detectives drove into the parking lot, the group began to disperse, leaving the vehicles unattended with loud music playing. Bernstein saw defendant Arthur Lewis exit the rear passenger door of one of the vehicles, an Oldsmobile Aurora, and subsequently attempt to leave the area. The detectives were able to detain five people, including defendant. They then requested pedigree information from the five individuals and were able to confirm their identities.

Bernstein testified that, upon inquiry, none of the detained individuals acknowledged ownership of the vehicles or knowledge of the owners' identities. Bernstein did not include any information about these inquiries in his police report or his affidavit of probable cause because, he claimed, "[t]he ownerships didn't pertain to the arrest of [defendant]."

Trenton Police Officer Palinczar arrived to assist the detectives. Palinczar and Astbury detained the five individuals while Bernstein approached the Aurora and leaned in to turn off the ignition and, as a result, the blaring music. Bernstein then opened the glove compartment to locate the registration in order to determine ownership of the vehicle.

After finding the registration in the glove compartment, Bernstein testified that he intentionally looked into the rear of the vehicle with the aid of his flashlight, "[j]ust making observations, you know, checking the surroundings." Upon seeing the barrel of a handgun in the rear seat cup holder of the center console, he seized the weapon. Because the police had observed defendant exiting the rear of the vehicle where the handgun was located, he was arrested and charged with its possession.

Bernstein admitted leaving out several key facts from his police report and affidavit of probable cause, including (1) that individuals were drinking alcohol, which is an offense punishable under a city ordinance; (2) that he asked the five individuals, including defendant, if any of them owned the car or had knowledge of its ownership; and (3) that defendant informed him that he did not just exit the vehicle and that he was not the owner of the vehicle, although Bernstein testified that defendant made those statements.

During cross-examination, Bernstein also testified about Sections 305-1 and 305-2 of the Revised General Ordinances of the City of Trenton, which provide

305-1: No person driving or in charge of a motor vehicle shall permit it to stand unattended in any public place, or on any used or new car lot, or parking lot, without first stopping the engine, locking the ignition and removing the ignition key from the vehicle.

305-2: Whenever any police officer shall find a motor vehicle standing unattended with the ignition key in the vehicle, in violation of this chapter, such police officer is authorized to remove such key from such vehicle and secure that key at the police station before the police officer's tour of duty is completed.

Bernstein testified that he was familiar with these ordinances and that he went into the car to turn off the ignition pursuant to their authority. However, he did not reference the ordinances at any point in either his police report or his affidavit of probable cause, nor did he issue any summonses for ordinance violations.

On December 3, 2013, the court issued a written decision granting defendant's motion to suppress the handgun. Judge Sumners found Bernstein's testimony not credible, based on inconsistencies in his testimony, police report, and affidavit of probable cause. The court also found that because Bernstein's testimony was not believable, there was no basis to seize the handgun pursuant to the plain view exception to the Fourth Amendment warrant requirement.

The State timely moved for reconsideration, arguing that Bernstein was credible and that two of the bases for the court's ruling that he was not credible were factually incorrect. First, the State contended that, contrary to the court's written decision, there was no testimony offered at the suppression hearing about whether Bernstein's reports referenced the blaring music. Second, the State pointed out that Bernstein testified that he intentionally looked in the back seat of the vehicle, rather than inadvertently as described in the court's decision. Additionally, the State argued that the second prong of the plain view exception, i.e., that the discovery of the evidence be inadvertent, was incorrectly applied by the court.

Following oral argument on January 23, 2014, the court denied the State's motion for reconsideration. The judge acknowledged the two factual inaccuracies noted by the State, but concluded that they did not affect his overall assessment of Bernstein's credibility. Judge Sumners reaffirmed his earlier determination that Bernstein's failure to include any mention in his reports that he asked the group who owned the vehicles, coupled with his contrary testimony that he did inquire about the vehicle's ownership, impaired his credibility. Additionally, the judge found incredible Bernstein's testimony that someone would leave a handgun in a cup holder where it could easily be seen by persons standing nearby. The judge elaborated

The [c]ourt is now satisfied that . . . factual finding is not supported by the record and the [c]ourt hereby clarifies the record to conclude that that is not a basis for the [c]ourt's conclusion that Detective Bernstein was not credible. So essentially what I'm saying is this, is that the [c]ourt was wrong in saying that Detective Bernstein failed to mention in his police report and affidavit of probable cause that there was loud music playing.

But that alone did not serve as a basis for the [c]ourt's decision. The [c]ourt also made reference to Detective Bernstein's failure to mention in his police report or affidavit of probable cause that he inquired as to who owned the car. He testified that he inquired as to who owned the car and that nobody [] [indicated] who owned the car and that led him to his decision to enter the car.

If that was the case, Detective Bernstein had a legal right to go into the car because no one accepted ownership . . . .

But the [c]ourt is still not satisfied with the credibility of Detective Bernstein's testimony for that reason that I just mentioned . . . . It is this [c]ourt's conclusion that that was the main reason that gave him the right to enter the car to turn it off. No one accepted ownership. No one accepted the responsibility. So, therefore, he had to go in the car himself. But I'm not satisfied that he asked anybody that question. And from this [c]ourt's perspective, the belief that Detective Bernstein went into the car looking for whatever he could find, he claims that he merely made observations in the back seat but I think it was much more than that.

Granted, there is no indication that he tossed the car as the State indicated. There's no indication that he looked in the trunk, that he looked underneath the car. But this [c]ourt does not believe Detective Bernstein's testimony that he merely glanced in the back looking over his shoulder as he was getting out of the car from the passenger side after turning off the ignition and looking in the glove compartment for a registration.

I believe that Detective Bernstein went into the car with the intentions of searching the car and even giving it a cursory search. I don't believe that he went into the car merely to turn off the car and to look for [the] registration. I believe that he looked into the car to look for some contraband. And I also, as I indicated in my decision, stated, quote, it is not believable that Detective Bernstein inadvertently shined his light on the back seat and looked back there when his focus was and should have been on the front seat to remove the keys and retrieve the registration from the glove compartment . . . end quote.

Now, the issue about inadvertence has been cleared. He clearly stated that he intentionally looked in the back of the car. But as I also wrote just before that sentence, quote, it is difficult to believe that the handgun was resting in the vehicle's cup holder where any passerby would have been able to observe it inside the vehicle, especially given the number of people gathered around the vehicles, end quote.

I don't believe that the gun was where Officer Bernstein said it was. I just don't believe that. And part of that reasoning is that I don't believe that he went into the car because no one accepted or took responsibility for the car or ownership of the car.

Also, while I was reviewing the arguments of the State and also looking at the transcript, there is also no mention of why Officer Bernstein initially felt he had a right to go in the car relying upon police ordinances. He did not mention - - I believe the testimony was he did not mention that in his police report or his affidavit of probable cause that he was aware that there was a police ordinance which gave him the basis for going into the car.

It's clear he testified during the motion that that was his reason. It's clear that that was the State's position in its brief, but I don't believe that at the time in question Detective Bernstein was cognizant of that ordinance and that served as a basis.

But even if you give him the benefit of the doubt in that regard, the bottom line is I don't believe, as I indicated before, that based upon all the facts and circumstances that Officer Bernstein went into the car because no one accepted ownership and he went into the car and saw the gun on the back seat where he said it was. I believe that the gun was found in the car, but I don't believe it was found in the car based upon the testimony of Officer Bernstein.

The State's interlocutory appeal followed.

On appeal, the State raises the following points

THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

A. The Lower Court's Finding that Detective Bernstein was not a Credible Witness is not Supported by Sufficient Credible Evidence in the Record

B. The Lower Court Misinterpreted the Inadvertency Requirement of the Second Prong of the Plain View Doctrine and Therefore the State Satisfied All Three Prongs of the Plain View Doctrine.

II.

We begin by noting that "[a]ppellate courts reviewing a grant or denial of a motion to suppress 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. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). Deference is given to credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). "Deference to these factual findings is required because those findings 'are substantially influenced by [an] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Gamble,supra, 218 N.J. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Here, Judge Sumners' decision to suppress the evidence rested upon his first-hand assessment of the State's proofs that were presented during the suppression hearing. His assessment of the credibility of the State's witness was peculiarly within the orbit of his authority, and his explanation for rejecting Bernstein's account of events comported with established principles of law.

"A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J.657, 664 (2000). The warrant requirement "is not lightly to be dispensed with, and the burden is on the State, as the party seeking to validate a warrantless search, to bring it within one of those recognized exceptions." State v. Alston, 88 N.J.211, 230 (1981).

One of the well-established exceptions to the warrant requirement is the plain view exception. Under this exception, 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 alsoState 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 Sumners' conclusion that the search of the vehicle was not justified pursuant to the plain view doctrine. With respect to the first prong, the State contends that Bernstein was lawfully in the vehicle (1) pursuant to Trenton City Ordinance 305-2, which permits police officers to remove keys from unattended vehicles, and (2) to retrieve proof of ownership from the glove compartment. Generally, if the operator of a vehicle is unable to produce proof of registration, a police officer may search the car for evidence of ownership. SeeState v. Boykins, 50 N.J.73, 77 (1967). Here, Judge Sumners expressly rejected Bernstein's testimony that he made such a request for proof of ownership before embarking on a search of the vehicle. Once the judge found that the State presented no credible evidence that proof of ownership was requested, there was no lawful basis to validate Bernstein's entry into the vehicle. Likewise, the judge found that Bernstein was not cognizant of the city ordinances and hence could not have relied upon them as a proper reason to enter the car.

Even if Bernstein was lawfully in the vehicle to turn it off and search for the registration, we agree that the State also failed to establish the second essential element that the discovery of the handgun was inadvertent. Bernstein first turned off the vehicle's ignition. He then searched for, and found, the vehicle's registration in the glove compartment. However, he thereafter unlawfully expanded the search into the rear of the vehicle, where he purportedly observed the weapon.

[A] search to find the registration would be permissible if confined to the glove compartment or other area where a registration might normally be kept in a vehicle. [] Certainly there could be no expectation that any indicia of title would be found in the rear of the vehicle. The search should not have gone into that area.

[State v. Patino, 83 N.J. 1, 12 (1980) (citations and internal quotation marks omitted).]

Moreover, Bernstein's testimony that he purposely looked into the rear of the vehicle with his flashlight dispels any question that his discovery of the handgun there was inadvertent.

Simply put, Judge Sumners did not accept the testimony of the State's witness. Rather, he found that Bernstein entered the vehicle with the intent to search it. We decline to disturb the judge's credibility findings, and conclude that the motion to suppress was properly granted.

Affirmed.