STATE OF NEW JERSEY v. TONY L. SLATER

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4031-04T44031-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TONY L. SLATER,

Defendant-Appellant.

________________________________________________________________

 

Submitted August 7, 2007 - Decided

Before Judges Sabatino and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 02-07-678.

Yvonne Smith Segars, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Tony L. Slater appeals from his conviction on a second degree charge of possession of a controlled dangerous substance with intent to distribute, in violation of N.J.S.A. 2C:35-5(b)(2). In accordance with the terms of the plea agreement, the court sentenced him to a five-year term of imprisonment and imposed appropriate fines and penalties. Despite the guilty plea, his right to challenge the denial of the suppression motion was preserved on appeal pursuant to Rule 3:5-7(d).

On appeal, defendant raises the following claims:

I. SINCE THE POLICE HAD NO LAWFUL AUTHORITY TO ENTER THE DEFENDANT'S MOTEL ROOM, THE OFFICERS WERE NOT IN A LAWFUL VANTAGE POINT WHEN THE NARCOTICS WERE SEEN IN PLAIN VIEW INSIDE THE DRESSER DRAWER, AND THE TRIAL COURT ERRED IN UPHOLDING THE SEIZURE OF THE CONTRABAND FOUND THEREIN. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. (1947), ART. I, PAR. 7.

II. THE DENIAL OF DEFENDANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION. U.S. CONST. AMENDS. V, VI, VIII, AND XIV; N.J. CONST. ART. I, PAR. 1, 10.

Having reviewed the arguments of both parties in light of the record and applicable law, we conclude that defendant's arguments are without merit and affirm substantially for the reasons expressed by the trial judge.

I.

The evidence presented at the suppression hearing on September 3, 2004, consisted of the testimony of Millville Police Officers Terry Fawcett and David Kahn. Their testimony established that they were contacted by two officers from the Buena Vista Police Department, Sergeant Sherman and Patrolman Studoval, who asked for assistance in locating Timmy Haas, who was wanted for questioning in connection with a string of burglaries in Buena Vista.

Acting upon the request of the Buena Vista officers, Fawcett and Kahn went to 22 West Vine Street in Millville and spoke with a "Mr. Finger." Finger told the officers that they had just missed Haas because Haas had left in his car with Jeffrey Neider. Finger informed the officers that Haas and Neider could be found in room 261 of the nearby Millville Motor Inn (motel), and that they probably had a half-ounce of cocaine "with them. . . . [I]f they were there, there's probably a half-ounce of coke there as well."

Before proceeding to the motel, Fawcett and Kahn checked for outstanding warrants and learned that there were two such warrants for Neider's arrest. All four officers then traveled to room 261 of the motel seeking Haas and Neider, both of whom were thin white males that Sherman and Studoval knew. When Sherman and Studoval knocked on the door of room 261, a black male, later identified as defendant, answered it. From the doorway, Kahn identified them as police officers and explained that they were looking for Haas. The officers knew defendant was not one of the two men they were seeking and had no reason to believe he had committed any crime or was involved in any wrongdoing. When Kahn asked defendant if he minded if they came "in to talk . . . for a minute [because] [i]t's raining out here," and to see if Haas or Neider had been there, defendant invited the officers inside.

Only Kahn and Fawcett entered the motel room. Once inside, they asked defendant for permission to check the room to look for Haas and Neider, and defendant agreed. Fawcett looked into the bathroom, found no one there, and saw no one else in the room with defendant. Defendant was sitting on a bed when one of the officers asked him if he knew Haas or Neider and if they had been there. As defendant was in the process of explaining that he did not know Haas or Neider, Fawcett observed a bureau drawer that was opened about six inches. From his vantage point, Fawcett could see a one inch by one inch transparent baggie containing a brownish-green vegetation he believed to be marijuana, which "was . . . just sitting right there."

When Fawcett pointed to the open drawer, Kahn looked, saw the marijuana and after opening the drawer, found crack cocaine, a box of "Philly blunts," and a digital scale. The officers did not seize or remove the contents of the drawer, instead bringing Fawcett's K-9 partner inside to confirm the presence of narcotics. The dog alerted to the dresser drawer, at which point Kahn seized the drugs and the digital scale.

After hearing the testimony, Judge Farrell denied defendant's motion to suppress. Relying on State v. Crumb, 307 N.J. Super. 204 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998), Judge Farrell held that the officers' entry into the motel room was consensual. He further found that when the officers were lawfully in the viewing area, they observed items that were clearly contraband, and made the discovery inadvertently. Accordingly, he held that pursuant to State v. Bruzzese, 94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), the marijuana, cocaine and digital scale were lawfully seized under the plain view exception to the warrant requirement.

On December 13, 2004, approximately three months after his motion to suppress was denied, defendant entered a plea of guilty to second degree possession of cocaine with intent to distribute in exchange for a maximum of five years imprisonment and dismissal of the remaining charges. On January 12, 2005, defendant filed a second motion to suppress evidence in which he advanced legal grounds for suppression not asserted at the time the first motion was heard and decided. At the same time, defendant filed a motion to withdraw his guilty plea.

On February 4, 2005, the court declined to consider the second suppression motion, finding that the denial of the earlier motion on September 7, 2004 precluded defendant from filing a second motion. After denying defendant's motion to withdraw his guilty plea, the court proceeded to sentence him.

II.

Before analyzing defendant's legal contentions, we pause briefly to emphasize two critical findings of fact made by Judge Farrell: (1) when police approached the motel room door, the sole purpose was to investigate the burglaries in which Haas was a suspect, and (2) there was nothing pretextual in the officers' explanation to defendant of why they were there. Defendant advances many arguments in an effort to persuade us to find the facts differently, but we decline to do so. When error in a judge's findings of fact is alleged, the scope of appellate review is limited. We only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, and if they were, we will not disturb those findings. State v. Locurto, 157 N.J. 463, 470-71 (1999).

As Judge Farrell correctly found, police were entitled to proceed to the motel room and conduct an investigation after learning that persons wanted for a crime or on an outstanding warrant could be found inside. See State v. Stanton, 265 N.J. Super. 383, 386-87 (App. Div. 1993) (holding that there was "nothing constitutionally offensive in the decision of the police to proceed to the scene and investigate," and that officers "would have been derelict in their duty" had they failed to do so).

Having determined that police were entitled to proceed to the motel to search for Haas and Neider, we next determine whether the circumstances under which police entered the room were lawful. When a defendant voluntarily admits police into his apartment, no seizure has occurred and the Fourth Amendment protection against unreasonable search and seizure is not violated. State v. Pineiro, 369 N.J. Super. 65, 73 (App. Div.), certif. denied, 181 N.J. 285 (2004). Here, in view of the officers' non-threatening manner, defendant's cooperative attitude and the totality of the circumstances, we agree with Judge Farrell's conclusion that the initial police entry into the motel room was lawful. State v. Crumb, supra, 307 N.J. Super. at 241-45.

We also agree with Judge Farrell's conclusion that the seizure of the contraband found in the bureau drawer was lawful. The officers were in a lawful viewing area while they spoke to defendant about the whereabouts of Haas and Neider. They saw what they immediately recognized as contraband, and discovered it inadvertently while asking defendant about Haas and Neider. Under these circumstances, the items were in plain view, and the officers' conduct in seizing them did not offend constitutional protections. Bruzzese, supra, 94 N.J. at 237-38.

As to defendant's argument that the trial judge erred in denying his second motion to suppress and his motion to withdraw his guilty plea, we disagree. Defendant has presented nothing in support of his argument that the court, having already heard and denied the first suppression motion, was obliged to consider a second motion that sought to suppress the same evidence, and we are aware of no authority that would support such a proposition. As to the court's denial of defendant's motion to withdraw his guilty plea, we agree with Judge Farrell that defendant's "change of mind" provided no basis for withdrawal of the plea of guilty. State v. Smullen, 118 N.J. 408, 416 (1990).

 
Affirmed.

(continued)

(continued)

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A-4031-04T4

August 15, 2007