STATE OF NEW JERSEY v. VINSON ANDERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4898-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINSON ANDERSON,

Defendant-Appellant.

_________________________________

November 17, 2014

Submitted November 12, 2014 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-03-0433.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from a February 6, 2013 order denying his petition for post-conviction relief ("PCR"). Defendant argues that he received ineffective assistance of trial counsel. We affirm.

We discern the following facts from the evidence adduced at the jury trial. A trooper performed a valid stop of defendant's vehicle. He performed a background check and learned that defendant had a suspended license and an outstanding arrest warrant. The trooper arrested defendant, placed him in the patrol car, and called for backup.

A detective arrived at the scene and secured defendant's vehicle for towing to a private impound lot. While retrieving defendant's wallet, phone, and identification at defendant's request, the detective found an unzipped blue pouch containing two prescription medication containers. Defendant told the detective that he did not need the medications. The detective left the pouch in defendant's vehicle.

A tow truck driver arrived at the scene and towed the vehicle to an impound lot. The driver followed his company's standard inventory procedures by removing visible items from the vehicle for safekeeping, and he found the pouch. He opened the pouch to check for valuables, which is consistent with the tow truck company's policy, and discovered crack cocaine, rolling papers, and marijuana.

A jury convicted defendant of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), and the judge sentenced defendant to probation. We affirmed the conviction. State v. Anderson, No. A-1657-08 (App. Div. Feb. 2, 2010).

Defendant filed his petition for PCR contending that his trial counsel was ineffective by failing to file a motion to suppress the drugs. The PCR judge denied the petition without conducting a hearing concluding that defendant had not shown a prima facie case of ineffective assistance of counsel.

Defendant raises the following argument on appeal

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVNESS FOR FAILING TO FILE A SUPPRESSION MOTION REGARDING THE ILLEGAL SEARCH OF THE POUCH IN HIS CAR.

After carefully considering the record and the briefs, we conclude that defendant's argument is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following remarks.

For defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either of the performance or prejudice prongs of the Strickland test.

We are also convinced that an evidentiary hearing was unwarranted. An evidentiary hearing on a PCR petition is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Preciose, 129 N.J. 451, 462-63 (1992). For a judge to order a hearing, the defendant must make out a prima facie case, demonstrating a reasonable likelihood of succeeding under the Strickland test. Id. at 463; see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (requiring defendant to "allege facts sufficient to demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1999). Defendant failed to meet this standard.

The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution generally protect defendants from unreasonable searches and seizures by government actors only. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984); Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 95 (1992). There are three circumstances in which a search conducted by a private individual involves sufficient state action to implicate the Fourth Amendment and Article I, Paragraph 7: "when there is joint participation between private citizens and police officers, when the State has significantly involved itself in the illegal search, or when the private search was sufficiently fostered or encouraged by the State." State v. Sanders, 185 N.J. Super. 258, 265 (App. Div. 1982). None of these circumstances exist here.

The PCR judge correctly concluded that although the tow truck driver acted under the State's authority to tow the vehicle, the driver's private inventory search was conducted following the private company's policy of "making sure people's personal items in a vehicle are accounted for." Therefore, the inventory search of defendant's car cannot be said to have been "sufficiently fostered or encouraged by the State" to implicate the Fourth Amendment or Article I, Paragraph 7. Sanders, supra, 185 N.J. Super. at 265.

Even if the tow truck driver was a state actor, which he was not, we conclude that the inventory search was nevertheless reasonable under the Fourth Amendment and Article I, Paragraph 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, State v. Edmonds, 211 N.J. 117, 131-32 (2012). An inventory search is "'a well-defined exception to the warrant requirement of the Fourth Amendment.'" State v. Vargas, 213 N.J. 301, 316-17 (2013) (quoting Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739, 745 (1987)).

An inventory search "is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to [32] protect against false claims of loss or damage." State v. Dickey, 152 N.J. 468, 483-84 (1998) (citing South Dakota v. Opperman, 428 U.S. 364, 369, 96 S. Ct. 3092, 3097, 49 L. Ed. 2d 1000, 1005 (1976); State v. Slockbower, 79 N.J. 1, 15 (1979)). There are two levels of inquiry when determining the propriety of inventory searches: whether the "impoundment itself is justified" and "the legality of the inventory." State v. Mangold, 82 N.J. 575, 583 (1980).

Here, the vehicle was lawfully impounded and there is no indication that "the inventory was a subterfuge for a warrantless investigatory search." Id. at 585. The tow truck driver testified that the purpose of the search was to account for defendant's property and prevent allegations of theft. Thus, the PCR judge correctly concluded that the inventory search was reasonable because defendant's car was "lawfully impounded, [he] was given the opportunity to secure the pouch, and because [the search] was conducted in good faith pursuant to proper guidelines."

Therefore, because a motion to suppress was not warranted and would otherwise have been unsuccessful, defendant failed to demonstrate a reasonable likelihood of meeting either prong of the Strickland test and was not entitled to an evidentiary hearing.

Affirmed.