STATE OF NEW JERSEY v. DUANE BRATHWAITE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3862-05T43862-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DUANE BRATHWAITE,

Defendant-Appellant.

_______________________________________

 

Submitted May 2, 2007 - Decided August 10, 2007

Before Judges A. A. Rodr guez and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 04-06-0574.

Yvonne Smith Segars, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Maura K. Tully, Deputy Attorney General, of counsel and on the brief).

Defendant filed a pro se supplemental brief.

PER CURIAM

Following the denial of his motion to suppress evidence, defendant, Duane Brathwaite, pleaded guilty to second degree possession of a controlled dangerous substance (CDS), methylenedioxymethamphetamine (MDMA), most commonly known by the street name Ecstasy or XTC, with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2); and third degree possession of CDS within 1,000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7. In exchange, the State agreed to dismiss related charges. The sentencing judge merged the convictions and imposed a four-year term with an eighteen-month parole disqualifier.

These are the proofs presented by the State at a hearing on the motion to suppress. Elizabeth Police Officer Robert Keily testified that at about 1:45 p.m. on February 18, 2004, he was patrolling Third Street with his partner, Officer James DiOrio, in an unmarked police car. He passed a 1997 BMW traveling in the opposite direction.

According to Keily, DiOrio noticed that the BMW's inspection sticker appeared odd and thought it might be fraudulent, and observed that the driver was not wearing his seatbelt. DiOrio turned the patrol car around, activated its overhead lights, and stopped the BMW.

Defendant was the sole occupant of the BMW. The officers approached the BMW and asked for credentials. Defendant produced a driver's license, which was in the name of "Duane E. Jones." The officers thought the license was fraudulent because the typing on it appeared too bold and the photograph appeared to be digital. They obtained the social security number listed for the driver's license from the motor vehicle department. However, defendant gave them a different social security number. DiOrio confronted defendant with their suspicions. Defendant gave the police his real name. Keily and DiOrio decided to place defendant under arrest for possessing a counterfeit driver's license, N.J.S.A. 2C:21-2.1(c). Defendant was directed to get out of the car, and DiOrio placed him in handcuffs.

Keily, who was standing by the passenger side door, testified that he noticed a McDonald's soda cup in the car's cup holder. There was no lid on the cup, and a piece of plastic tied in a knot was protruding from the top. According to Keily, "based on his training and experience," he believed that the piece of plastic was "narcotics." On cross-examination, he testified that "in my 13 years, I've recovered drugs in a soda cup once before." Keily opened the car door and retrieved the cup. It contained soda and ice. A plastic bag of suspected narcotics was resting on top of and partially submerged in the ice. The plastic bag was later determined to contain "Ecstasy."

The BMW was searched. No other contraband was found. At headquarters, defendant was searched and $740 was found in his pockets.

Following the submission of supplemental briefs, the trial judge denied defendant's motion to suppress, ruling that the initial stop of the BMW was valid because the police had the authority to ticket the driver for failing to wear his seatbelt. The judge found that the warrantless entry into the defendant's car and inspection of the cup was justified as a search incident to a lawful arrest for possessing a fraudulent driver's license. See Chimel v. California, 395 U.S. 752, 762-63 89 S. Ct. 2034, 2040 23 L. Ed. 2d 685, 694 (1969); State v. Goodwin, 173 N.J. 583, 599 (2002). He also found that the search was justified under the plain view exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

Defendant moved for reconsideration. On reconsideration, the judge agreed with defense counsel that the search-incident-to-arrest rationale might be inapplicable in light of a recent decision by our Supreme Court, but again ruled that the search was permissible pursuant to the plain view exception to the warrant requirement.

On appeal, defendant contends that:

THE EVIDENCE PRODUCED AT THE MOTION TO SUPPRESS WAS NOT SUFFICIENT TO SUPPORT THE JUDGE'S FINDING THAT OFFICER KEILY HAD PROBABLE CAUSE TO BELIEVE THAT THE CUP HE SAW ON THE CONSOLE CONTAINED CONTRABAND.

Specifically, defendant argues that at the suppression hearing the State failed to produce sufficient evidence to support a seizure based upon a plain view observation. We agree.

The findings by a trial court will be affirmed if they could have been reasonably reached on "sufficient" or "substantial" credible evidence present in the record, considering proof as a whole. State v. Johnson, 42 N.J. 146, 162 (1964). But, the legal conclusions that flow from those facts, however, are given no special deference on appeal. State v. Drury, 190 N.J. 197, 209 (2007); Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Both the Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution prohibit unreasonable searches and seizures by requiring warrants issued upon probable cause. Probable cause is defined as "less than legal evidence necessary to convict though more than mere naked suspicion." State v. Evers, 175 N.J. 355, 381 (2003) (quoting State v. Mark, 46 N.J. 262, 271 (1966)). It exists if, at the time, police have a "well grounded suspicion that a crime has been or is being committed." State v. Moore, 181 N.J. 40, 45 (2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)).

The United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983), described the probable cause requirement as a "practical, nontechnical conception." Ibid. (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879 (1949)). The Court went on to note that:

"In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."

[Ibid. (citations omitted).]

Warrantless searches, which are presumed invalid, may be undertaken only if the search or seizure falls within one of the exceptions to the general requirement of a warrant. State v. Ercolano, 79 N.J. 25, 41-42 (1979); State v. Sims, 75 N.J. 337, 351 (1978); see, e.g., Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967) (finding hot pursuit as an exception to the warrant requirement); United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59 (1951) (finding exigent circumstances to be an exception to the warrant requirement); United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982) (finding an automobile search to be an exception to the warrant requirement); New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (finding a search incident to arrest to be an exception to the warrant requirement); Zap v. United States, 328 U.S. 624, 66 S. Ct. 1277, 90 L. Ed. 1477 (1946), vacated on other grounds, 330 U.S. 800, 67 S. Ct. 857, 91 L. Ed. 1259 (1947) (finding consent to be an exception to the warrant requirement). The Supreme Court has also held permissible intrusions less severe than full-scale searches or seizures without the necessity of a warrant. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (finding a stop and frisk do not require a warrant); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975) (finding a seizure for questioning does not require a warrant); Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979) (finding that a roadblock does not require a warrant).

Finally, the United States Supreme Court held that there is a "plain view" exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971). The State relies on that exception in this case. See 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).

The plain view doctrine allows an officer to seize without a warrant, any evidence or contraband of a crime in plain view. State v. Demeter, 124 N.J. 374, 380-81 (1991). In order to satisfy the plain view doctrine, the State must prove three elements. First, the officer must lawfully be in the area from which the officer viewed the evidence. State v. Johnson, 171 N.J. 192, 206 (2002). Second, the officer must not know in advance where the evidence was located, nor have the intent to seize it beforehand. Ibid. Finally, the officer must have probable cause to believe that the item observed in plain view is associated with criminal activity. Id. at 207-08 (citing Arizona v Hicks, 480 U.S. 321, 327, 107 S. Ct. 1149, 1153, 94 L. Ed. 2d 347, 354-55 (1987)). Here, the only issue in dispute is the third prong, i.e., whether Keily had probable cause to believe that the soda cup with a plastic knot was associated with criminal activity.

We conclude that he did not. First we note that the fact that the officers had sufficient cause to stop the vehicle is not being contested. Keily testified that he observed a plastic bag that was partially submerged in a cup filled with soda. The contents in the plastic bag were not readily visible. The bag was not contraband per se. There was nothing unusual about the plastic bag itself. The officer did not testify he saw the contents of the bag from outside the vehicle. In short, there were no surrounding circumstances to support probable cause that the soda cup or the bag contained contraband.

Defendant relies primarily on Demeter, to argue that probable cause did not exist in this case. In Demeter, the officer saw a film canister in the front console, but there was no camera visible. Demeter, supra, 124 N.J. at 378. In that case, the issue was whether the police officer had probable cause to believe that the film canister contained narcotics when he viewed it in the front console of the van. The judge denied the motion to suppress based on the officer's past experience. The officer had investigated approximately forty narcotics incidents with "at least half of them" involving the use of film containers to hold drugs. Id. at 379. We reversed. Ibid. The Supreme Court affirmed our decision. The Court explained that where the contents are not visible to the officer, probable cause that the contents are contraband cannot be sustained unless "the officer's conclusion, when viewed in light of his special training or experience would persuade the average reasonably prudent person that such a finding was justified." Id. at 383. Therefore, the Court held that the officer's observation of the film canister alone was insufficient to rise to the level of probable cause that there was contraband inside it. Ibid.

In Demeter, the court noted that:

A more difficult case is presented by warrantless seizures or searches of intrinsically innocent objects or containers when probable cause is based on the police officer's experience and training in associating such objects with criminal activity. We recognize that in some situations a police officer may have particular training or experience that would enable him to infer criminal activity in circumstances where an ordinary observer would not. In such situations, when an officer's experience and expertise is relevant to the probable cause determination, the officer must be able to explain sufficiently the basis of that opinion, so that it "can be understood by the average reasonably prudent person."

[Id. at 383-84 (citations omitted).]

Unlike the officer in Texas v. Brown, 460 U.S. 730, 734, 103 S. Ct. 1535, 1539, 75 L. Ed. 2d 502, 508 (1983) (plurality opinion), who testified that, based on his experience, he was aware that narcotics were frequently packaged in such balloons, Keily merely testified that, based on his experience, drugs could be found "anywhere" and "everywhere." Keily's testimony was insufficient to demonstrate that his particular training or experience enabled him to infer criminal activity based on his observation.

Here, like the Demeter case, the officer "discover[] an object that appear[ed] intrinsically innocent." Id. at 383. Moreover, Keily was unable to explain sufficiently the basis for determining that the "knotted balloon bag" was contraband.

In sum, all three elements of the plain view exception were not met in this case. Keily was lawfully at the passenger side of the car. He did not know that evidence would be found, and thus discovered the bag inadvertently. However, the illegal nature of the contents of the "knotted balloon bag" floating in the soda cup was not immediately apparent. Therefore, we conclude that the conduct of the police in seizing the clear plastic bag from the BMW was not justified pursuant to the plain view exception and violated both the federal and New Jersey Constitutions.

Given this conclusion, we do not reach the following contention advanced by defendant that:

THERE WERE NO EXIGENT CIRCUMSTANCES JUSTIFYING THE POLICE FAILURE TO OBTAIN A WARRANT AUTHORIZING ENTRY INTO [DEFENDANT'S] CAR AND SEIZURE OF THE SODA CUP FROM THE CENTER CONSOLE.

Nor do we reach defendant's pro se argument that:

APPELLANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE STATE LACKED PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES TO JUSTIFY THE WARRANTLESS SEARCH OF THE AUTOMOBILE.

However, we note that even if we concluded that the officer had probable cause to believe that the object observed in plain view was contraband, we would still reverse, agreeing with defendant's contention that "the seizure [] is invalid, because there were no exigent circumstances justifying the failure to obtain a warrant."

We begin our analysis by heeding the United States Supreme Court's holding that

[P]lain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent "exigent circumstances." Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.

[Coolidge, supra, 403 U.S. at 468, 91 S. Ct. at 2039, 29 L. Ed. 2d at 584 (citing Taylor v. United States, 286 U.S. 1, 52 S. Ct. 466, 76 L. Ed. 2d 951 (1932); Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 93 L. Ed. 436 (1948); McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153 (1948); Jones v. United States, 357 U.S. 493, 497-498, 78 S. Ct. 1253, 2 L. Ed. 2d 1514, 1518 (1958); Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961); Trupiano v. United States, 334 U.S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663 (1948)).]

In State v. Cooke, 163 N.J. 657, 672 (2000), our Supreme Court discussed the automobile exception to the warrant requirement. The rationale for this exception is grounded in the exigent circumstances created by the inherent mobility of vehicles and the somewhat lessened expectation of privacy in one's vehicle. Id. at 665. In essence, "[t]he justification to conduct a warrantless automobile search . . . turns on the circumstances that made it impracticable to obtain a warrant when the police have probable cause to search the car." Id. at 667 (quoting State v. Colvin, 123 N.J. 428, 437 (1991)). The Court held that exigent circumstances may exist if an element of surprise has been lost, a vehicle contains contraband, a confederate is waiting to move the evidence, or where the police would otherwise have needed to call in reinforcements to guard an immobilized vehicle. Colvin, supra, 123 N.J. at 434-35; see also State v. Dunlap, 185 N.J. 543 (2006) (holding that although the police clearly had probable cause to search the car, there were no exigent circumstances justifying a warrantless intrusion); State v. Carroll, 386 N.J. Super. 143 (App. Div. 2006), certif. denied, 189 N.J. 430 (2007) (applying the automobile exception because the police officer had probable cause to believe that a plastic bag contained contraband and exigent circumstances were present to justify the intrusion into the vehicle). Some other factors utilized to determine if an exigency exists may include whether the delay needed to secure a warrant would implicate a threat to the safety of the police officers, State v. Hammer, 346 N.J. Super 359, 370 (App. Div. 2001), and whether the vehicle is located in a high crime area. Cooke, supra, 163 N.J. at 675.

Nothing here suggests an exigency. This was not the typical roadside stop; where a vehicle will continue on its way and the contraband will disappear or be destroyed. If the driver had committed no offense, or only a minor offense warranting merely the issuance of a traffic ticket, then there would be exigent circumstances to warrant an immediate search and seizure of the soda cup. However, here the officer had properly arrested defendant, the sole occupant of the BMW, for driving without a valid license. Therefore, the BMW was no longer under the control of defendant. It was under the control of the police. There was no evidence a third party was aware of the car's location. See Dunlap, supra, 185 N.J. at 550 (noting that an exigency may exist if an officer has reason to believe a third party was capable of destroying or removing the evidence contained in the car). Although, the record may demonstrate that they were in a high crime area that alone is insufficient to create an exigency. See Cooke, supra, 163 N.J. at 675 (noting that any one factor, "standing alone, would be insufficient to support a finding of exigency."). The BMW could have been impounded and towed to the police "pound." Then a warrant could be obtained in the ordinary course. Moreover, we note that the officers outnumbered the single passenger; it was the middle of the day, and there were no special traffic concerns.

 
Reversed.

State v. Eckel, 185 N.J. 523, 535 (2006) (finding the "New Jersey's traditional approach to the search incident to arrest parallels Chimel.").

(continued)

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August 10, 2007