STATE OF NEW JERSEY v. BARBARA BAVIERA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6013-05T46013-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARBARA BAVIERA,

Defendant-Appellant.

________________________________________________

 

Submitted October 15, 2007 - Decided October 25, 2007

Before Judges Collester and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-09-0544.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of her motion to suppress evidence seized from a motor vehicle, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), as well as certain motor vehicle violations. She was sentenced to a three-year term of probation, conditioned upon her submission to an alcohol and drug abuse evaluation. Defendant was also ordered to perform seventy-five hours of community service, she was compelled to pay various fines and fees, and her driving privileges were suspended for one year.

Defendant appealed, arguing that the trial judge erroneously denied her motion to suppress because:

A. UNDER THE FIRST PRONG OF THE PLAIN VIEW DOCTRINE OFFICER GALETA [SIC] DID NOT HAVE A LAWFUL RIGHT TO HAVE BEEN IN THE POSITION TO REPEATEDLY "PEER" INTO THE DEFENDANT'S VEHICLE.

B. UNDER THE SECOND PRONG OF THE PLAIN VIEW DOCTRINE OFFICER GELETA'S DISCOVERY OF COCAINE WAS NOT "INADVERTENT."

We find no merit in these arguments.

The evidence adduced during the suppression hearing revealed that, on July 20, 2003, at around 12:12 a.m., defendant was driving her vehicle on Route 76 in Bernards Township, when Officer Michael Sweeney observed that the vehicle's license plate light was not working. He activated his overhead lights and directed defendant to pull to the side of the roadway.

The vehicle had two occupants -- defendant, who was driving, and co-defendant Darnell Goodman, who was in the front passenger seat. Once the vehicle came to a stop, Officer Sweeney approached the vehicle on the passenger's side. As he approached, he observed defendant and Goodman "moving around the center console area" and that defendant was "reaching down towards the shifter, [and] the passenger [was] reaching down." The occupants appeared to Officer Sweeney to have been startled when he knocked on the passenger side window. Goodman rolled down the window and Officer Sweeney asked for defendant's license, registration and insurance card.

Defendant advised Officer Sweeney that her driver's license was suspended, causing Officer Sweeney to ask defendant to step out of the vehicle so he could place her under arrest. As they stood in front of the police vehicle, which was behind defendant's vehicle, Officer Sweeney observed that defendant was disheveled. He asked her to explain her appearance and to advise where she had been and where she was going. Defendant did not remember at first and seemed to the officer to be confused and extremely nervous. As this discussion was occurring, Officer Rick Geleta arrived to assist.

Officer Geleta spoke with Goodman and learned that his license was also suspended. Using his flashlight, Officer Geleta looked into the vehicle. At some point, while peering into the vehicle through the windshield with his flashlight, Officer Geleta observed Goodman "leaning down towards the map pocket on his side, on his door, and I looked down" into the map pocket and "saw a plastic cellophane baggie that contained what appeared to be crack rocks." The officer then opened the passenger door to look more closely and determined, based upon his training and experience, that the substance in the cellophane bag was crack cocaine. Goodman was then arrested and a search of the vehicle revealed additional CDS.

Based upon the officers' testimony, as well as video and sound recordings made from the police vehicle during the stop, the trial judge found that

Officers Sweeney and Geleta were responsive, that they were forthright, they were credible and, therefore, worthy of belief. And the reason the [c]ourt stresses this is that while collectively we watched both videotapes, the critical element, that is the actual discovery of the crack cocaine in the cellophane within the map pocket, was not visible on the videotapes, so the basis [for] the [c]ourt's finding that the officers did properly find the cellophane bag of rock cocaine was in plain view is based upon their testimony.

The [c]ourt finds that Patrolman Geleta's testimony that he observed the bag with the two rocks of cocaine in the map pocket is credible testimony. The [c]ourt finds that he was outside the vehicle and, therefore, lawfully in the viewing area, and the officer had no prior knowledge of the evidence that would be in the vehicle. Patrolman Geleta, based upon his experience and training, recognized the items as cocaine. Thus, the three requirements of the [p]lain [v]iew [d]octrine were met, and the rocks of cocaine were lawfully recovered.

After careful review of the record, we conclude that these and the judge's other findings were based upon evidence that the judge was entitled to credit and are therefore deserving of our deference. State v. Locurto, 157 N.J. 463, 471 (1999).

Defendant's contentions on appeal are confined to the questions of whether Officer Geleta was lawfully in a position to make his observations or whether his observation of CDS in the map pocket in the passenger door was inadvertent. The trial judge's affirmative responses to both those questions were based upon an appropriate application of correct principles of law.

A warrantless search is presumed invalid, and places the burden on the State to prove that the search "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). One of those exceptions is the plain view doctrine, which, first, requires that the officer "lawfully be in the viewing area." State v. Johnson, 171 N.J. 192, 206 (2002) (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971)). Second, the discovery of the evidence must be "inadvertent," meaning that the officer "did not know in advance where evidence was located nor intend beforehand to seize it." 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). And, third, the officer must have probable cause to associate the property with criminal activity. Texas v. Brown, 460 U.S. 730, 738, 103 S. Ct. 1535, 1541, 75 L. Ed. 2d 502, 511 (1983) (plurality opinion); State v. Lane, 393 N.J. Super. 132, 144 (App. Div. 2007).

Defendant argues that the first two of the plain view doctrine's three prongs were not met here. We disagree. In applying the principles outlined above, we are satisfied that the motor vehicle stop was appropriate as were the officers' subsequent actions in further investigating the credentials of both defendant and her passenger. The furtive gestures toward the center console and the passenger door map pocket both before and during this investigative stop further gave sufficient cause for Officer Geleta to peer into the vehicle from his position outside the vehicle. Since it was in the course of that permissible investigation that Officer Geleta saw the CDS, the judge correctly concluded that the officer was in a lawful position when he made his observations. We are also satisfied that there was no evidentiary basis for defendant's contention that Officer Geleta's observation of the CDS was not "inadvertent." The facts as found by the judge demonstrated that neither police officer "[knew] in advance where evidence was located [or] intend[ed] beforehand to seize it." State v. Bruzzese, supra, 94 N.J. at 236.

Affirmed.

(continued)

(continued)

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A-6013-05T4

October 25, 2007