STATE OF NEW JERSEY v. CORNELL BEWLEY, III

NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

CORNELL BEWLEY, III,

Defendant-Appellant.

___________________________

July 27, 2016

Argued May 9, 2016 Decided

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-09-1222.

Elyse S. Schindel argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Edward C. Bertucio, of counsel and on the brief; Ms. Schindel, on the brief).

David M. Liston, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Liston, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence seized in a warrantless search and the court's decision to admit his subsequent statement to the police, defendant Cornell Bewley, III, entered a conditional guilty plea in a negotiated agreement to second-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2), and was sentenced to a prison term of four years, with a mandatory two-year period of parole ineligibility. Defendant now appeals from the adverse orders and the denial of his application to drug court, raising the following issues.

POINT I

THE TRIAL COURT IMPROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE AND THE APPELLATE DIVISION SHOULD REVERSE THE TRIAL COURT'S DECISION AND SUPPRESS THE PHYSICAL EVIDENCE.

POINT II

THE TRIAL COURT IMPROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS HIS STATEMENTS, AND THE APPELLATE DIVISION SHOULD REVERSE THE TRIAL COURT'S DECISION AND SUPPRESS THE STATEMENTS.

POINT III

THE TRIAL COURT ERRED IN DENYING MR. BEWLEY ENTRANCE INTO THE DRUG COURT PROGRAM, AND THE APPELLATE DIVISION SHOULD REVERSE THE TRIAL COURT'S DECISION AND ALLOW MR. BEWLEY ENTRANCE INTO THE DRUG COURT PROGRAM.

Detective DeJesus testified at the suppression hearing to the circumstances giving rise to defendant's arrest on the evening of May 2, 2013 in Perth Amboy. She was in an unmarked police vehicle with three other detectives when she saw defendant riding a dirt bike with no helmet at a high rate of speed on Catherine Street. The detectives followed the bike around a corner to the parking lot of an apartment building. There they found the dirt bike leaning up against the back of a pickup truck and defendant standing nearby.

As the detectives approached, defendant said, "I'm sorry, I'm sorry. I was just taking it for a ride. I had brought it I wasn't driving it. I brought it on the back of the pickup truck." One of the detectives asked defendant for his driver's license and any "paperwork" for the dirt bike, which did not have a tag. Defendant said his license was upstairs in his apartment and the documents for the dirt bike were in the truck. Detective DeJesus asked whether defendant had "documents" for the truck. She testified she asked for the information about the truck because "he had no identifiers on him" and they needed his information to issue summonses. Defendant explained the truck belonged to his father and the "documents," presumably the registration and proof of insurance, were in the glove compartment.

The detective did not ask defendant to get the documents. Instead, she asked if she could retrieve the documents from the glove compartment. Defendant said she could, and she walked toward the driver's side of the truck to do so. The detective testified defendant began to appear anxious and walked toward her and the truck, "trying to distract what we were doing." One of the other detectives told defendant he needed to "stand back" and "give her space to get the documents."

Shining a flashlight through the partially open driver's side window, Detective DeJesus saw a brick of heroin wrapped in the torn page of a magazine in the passenger seat next to a cell phone. Opening the door, the detective found there were five bricks of heroin all taped together in the same magazine wrapping.

Defendant was placed under arrest. The officers asked for his apartment number and whether he was the leaseholder. He provided his apartment number and told the detectives his girlfriend held the lease.

After advising defendant's girlfriend that he had been arrested for drug possession, police obtained her written consent to search the apartment. The detectives recovered an additional fifty-four bricks of heroin in an open safe in a spare bedroom. They recovered another fifty-four glassine envelopes of heroin in a dresser.

Defendant subsequently made a statement at the police station after being advised of his rights. He claimed all of the heroin belonged to him, and that his girlfriend did not know it was in the apartment.

After hearing the testimony, Judge Toto denied defendant's motion to suppress in a lengthy written decision. The judge began by noting he found the detective's testimony "reasonable and credible." He determined the detectives lawfully detained defendant in the parking lot of his apartment building for the purpose of writing him a summons after observing him riding a dirt bike without a tag, on a public street, at a high rate of speed, without a helmet.

Relying on State v. Mann, 203 N.J. 328, 341 (2010), the judge determined the seizure of the heroin found in defendant's truck was lawful pursuant to the plain view exception of the warrant requirement. The judge found Detective DeJesus was lawfully standing next to defendant's truck, and he accepted her testimony that the drugs were plainly visible to her through the partially open window. He further found her discovery of them plainly inadvertent, as she went to the truck for the purpose of retrieving defendant's documents from the glove box, not to search for drugs. Finally, the judge found on the basis of the detective's testimony that she immediately recognized the package she saw as a brick of heroin from the wrapping and the glassine envelopes visible through the tear in the magazine cover.

Defendant contended the officers were without authority to detain him any longer than necessary to conduct a brief motor vehicle stop in connection with his alleged operation of the dirt bike. He argued the detectives had no right to request any documents relating to the pickup, which they never observed him operating and was legally parked. He further argued the detectives unlawfully restricted his movements without reasonable suspicion and were prohibited from entering his truck to search for driving documents.

The judge determined that had "Detective DeJesus observed the heroin in plain view only after entering the vehicle to obtain [evidence of ownership documentation/paperwork], the [c]ourt would need to address" the issues defendant raised. But because the judge accepted the detective's credible testimony that she saw the heroin while standing outside the truck and looking through the partially open window, no consideration of the arguments was required.

The judge also concluded the detectives lawfully seized the drugs found in defendant's apartment. Relying again on Detective DeJesus's testimony, the judge found the police obtained the voluntary consent of the leaseholder, defendant's girlfriend, to search the apartment. Because defendant was lawfully arrested following the discovery of the heroin in his truck, and there was no showing defendant was taken to police headquarters in order to avoid his objection to the search of his apartment, the judge concluded that neither Fernandez v. California, ___ U.S. ___, ___, 134 S. Ct. 1126, 1134, 188 L. Ed. 2d 25, 35 (2014) (holding "an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason"), nor State v. Coles, 218 N.J. 322, 347-49 (2014) (invalidating a third-party consent search where the charged defendant was being unlawfully detained at the time of the search), aided defendant's argument.

The judge found defendant's girlfriend, as the sole lessee of the apartment, clearly had the authority to grant consent to search the premises. Detective DeJesus testified the bulk of the heroin was found in a spare room in an open safe1 inside an open closet, with the remainder located in a bedroom dresser. Nothing in the proofs suggested the girlfriend did not have the authority to consent to a search of both places. She signed a valid consent-to-search form and at no time objected to or attempted to stop the search.

As to defendant's recorded statement to the police following his arrest, the judge noted the recording shows defendant was read his Miranda2 rights, acknowledged he understood them, and signed the waiver form. Because the judge concluded defendant's statement was not the product of an illegal arrest or search, he found no basis to suppress the statement as fruit of the poisonous tree.

After entering his conditional guilty plea, defendant applied to the Middlesex County drug court program. The prosecutor's office denied defendant's application on the basis he was a profit motivated drug dealer with no evidence of any drug dependence. In its denial letter, the office explained that defendant was arrested with just under 3000 bags of heroin, all packaged for sale, two iPhones and $1649 in his possession. Defendant never told police he sold drugs to support his own habit and only applied to drug court, "a year after the inception of the case and after he pled guilty to a State Prison recommendation." Given those facts and the absence of any evidence that defendant "is even drug dependent and in need of drug court," the prosecutor's office concluded the "true intent" of defendant's application was simply "to avoid State Prison."

Judge Pullen heard defendant's appeal from the denial of his application. In a thorough and thoughtful opinion from the bench, the judge affirmed the prosecutor's decision to deny defendant entry to drug court. Like the prosecutor's office, the judge noted the amount of drugs in defendant's possession, which was obviously well beyond anything intended for his personal use. The judge focused, however, on the lack of any indication in the record that defendant suffered from a drug problem.

She characterized the letter defendant submitted from an experienced certified drug abuse counselor as "not a clinical evaluation" but "more a character reference." The judge noted the counselor did not identify what substances defendant was supposed to have abused and did not refer to the DSM IV or V criteria to determine whether defendant was, in fact, drug dependent. Judge Pullen concluded

I cannot overlook the amount of drugs involved in this case. I cannot overlook the fact that there's been no previous history as it relates to [defendant's] alleged drug addiction; and I cannot overlook that I've been provided with an expert's opinion as it concerns [defendant], and that expert has failed to provide, again, that which I have seen in the past provided by all experts, a drug evaluation based on the most recent and up-to-date tools to make such a determination.

And without that, this Court finds that [defendant], in its opinion, based upon the information that it has, is a significant threat to the community; not only the community at large, but the community of Drug Court participants that he would be a member of.

And for those reasons, this Court will not overrule the State in its objection to [defendant] participating in the Middlesex County Drug Court Program.

Defendant appeals.

Our standard of review on a motion to suppress is limited. State v. Gamble, 218 N.J. 412, 424 (2014). We defer to the trial court's factual findings on the motion, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). "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)). Our review of the trial court's application of the law to the facts, of course, is plenary. State v. Hubbard, 222 N.J. 249, 263 (2015).

Having reviewed the motion transcript and the governing law, defendant has given us no cause to disturb the judge's factual findings or legal conclusions here. Defendant does not dispute that the detectives could lawfully detain him in order to issue him a summons after witnessing his illegal operation of the dirt bike. See State v. Carty, 170 N.J. 632, 639-40 (2002). Instead, he maintains Detective DeJesus was without authority to enter his truck to search for his driving credentials and was thus not legally in the viewing area when she saw the heroin through his open window. Although we agree the detective could not lawfully enter defendant's truck on the facts presented, we do not find it follows that the detective was not lawfully in the viewing area.

State v. Keaton, 222 N.J. 438, 450 (2015), decided after defendant filed his notice of appeal, makes plain "the warrantless search of a vehicle [for driving credentials] is only permissible after the driver has been provided the opportunity to produce his credentials and is either unable or unwilling to do so." Defendant, although unable to produce his license, told the detectives that his "paperwork" for the dirt bike was in his pickup truck. Defendant, however, never expressed any unwillingness to retrieve those documents.

Although the trial court concluded defendant validly consented to allowing the detective to enter his glove compartment to retrieve the documents, we assume without deciding that defendant's consent was not valid because the detectives did not first ask him to retrieve his documents himself. Cf. Carty, supra, 170 N.J. at 647-48 (requiring reasonable and articulable suspicion before police may ask for consent to conduct a car search). But it does not logically follow that the detective was not lawfully in the viewing area when she saw the heroin.

As the trial court noted, the detective had not entered the pickup when she spotted the heroin. She was standing outside the driver's door. As the United States Supreme Court has noted, "[w]hat the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused." See Coolidge v. N.H., 403 U.S. 443, 466, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564, 583 (1971).

Here, the justification for the detective being in the viewing area was the motor vehicle stop. Defendant and the detectives were both stopped in a parking lot. The dirt bike was leaning up against the back of the pickup truck. Defendant was speaking with the detectives in the vicinity of the truck, and had already told the officers the documents for the dirt bike were in the truck. Thus there is no basis for us to conclude that Detective DeJesus was not lawfully in the viewing area when she saw the heroin in plain view. See State v. Mosner, 407 N.J. Super. 40, 60-61 (App. Div. 2009) (noting when police come onto private property and restrict their movements to places visitors could be expected to go, observations from such vantage points are not protected by the Fourth Amendment); see also State v. Nikola, 359 N.J. Super. 573, 581 (App. Div.), certif. denied, 178 N.J. 30 (2003) (same).

Defendant has likewise provided us no basis on which to overturn the seizure of the heroin found in his apartment. As found by the trial court, the detectives secured defendant's girlfriend's consent to search the apartment in accordance with current law. See State v. Lamb, 218 N.J. 300, 305 (2014). Defendant was arrested and removed from the scene when the detectives discovered the heroin in the pickup truck.

The record plainly establishes, as the trial court found, that defendant's girlfriend was the leaseholder, thus giving rise to a reasonable belief on the part of the police that she had authority to consent to a search of the entire apartment. Contrary to defendant's arguments, there is no indication in the record that the spare room belonged to defendant, and to defendant alone, such that his girlfriend could not consent to a search of that room or its contents.

The only argument defendant makes that his statement to police should not have been admitted is that it is the fruit of the illegal searches of his truck and apartment. See State v. Chippero, 164 N.J. 342, 353 (2000). Because we agree the trial court was correct in finding the heroin was lawfully seized from both defendant's truck and his apartment, there is no basis on which to exclude his subsequent statement to the authorities.

Defendant's arguments regarding his exclusion from drug court are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). We affirm Judge Pullen's decision affirming the denial of defendant's application to drug court substantially for the reasons expressed in her opinion from the bench on October 8, 2014.

Finally, we note the trial court stayed defendant's sentence and permitted him to remain on bail pending this appeal. We accordingly remand for revocation of bail and defendant's surrender to serve his sentence in accordance with this opinion.

Affirmed.

1 In his subsequent statement to the police, defendant stated the safe "just stay[s] open like that" and he did not "know where the key is."

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).