STATE OF NEW JERSEY v. RAJOHN HUTCHINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0830-09T40830-09T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RAJOHN HUTCHINS and

EDWARD WARD,

Defendants-Respondents.

________________________________________

 

Submitted March 15, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-03627.

Robert D. Laurino, Acting Essex County Prosecutor, attorney for appellant (Kenneth P. Ply, Assistant Prosecutor, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent Rajohn Hutchins (Diane Toscano, Assistant Deputy Public Defender, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent Edward Ward (Alison Perrone, Designated Counsel, on the brief).

PER CURIAM

We granted the State's motion for leave to appeal from the grant of defendants', Rajohn Hutchins and Edward Ward, motion to suppress evidence seized during a warrantless search of an automobile. State v. Hutchins, No. M-362-09 (App. Div. Oct. 20, 2009). We now reverse and remand for trial.

At the suppression hearing, the State presented the testimony of Newark Police Officer Lindorra Rivera. She testified that on June 12, 2008, she and Officer Christopher Bowles were patrolling the 512 section of Newark. At approximately 3:45 a.m., they observed a black vehicle run a red light at the intersection of Elizabeth Avenue and West Bigelow Street. The black vehicle had tinted windows and did not have license plates. Bowles turned on the overhead lights to conduct a motor vehicle stop. The black vehicle continued to travel another five or six blocks before stopping. The officers instructed the driver to turn off the engine. The two occupants were ordered to roll down the windows and place their hands where the officers could see them.

There were street lights in the area where the stop occurred. There was additional illumination from a "well-lit" gas station and a convenience store in the vicinity. Rivera approached the passenger side of the vehicle, where defendant Ward was located. Ward was breathing "heavily." Defendant Hutchins, the driver, was asked to present his license, registration and insurance card. He was unable to produce any of these documents. Hutchins initially provided the officers with a false name and stated that he was a minor.

The officers instructed defendants to step outside of the vehicle. Defendants were patted down for weapons and secured in the back of the patrol car to allow the officers to investigate whether the vehicle was stolen. Defendants were not placed under arrest at this time.

The officers obtained the vehicle identification number (VIN) from the windshield without the assistance of a flashlight. They ran the VIN number. This revealed that the vehicle was not stolen but there was no record of it ever being registered. Bowles decided to conduct an "inventory" of the vehicle. He stood outside the driver's side and shined a flashlight into the vehicle. He saw a "butt of a gun" located in the middle of the console between both seats. The interior of the vehicle was a light beige color. The console was black plastic.

Rivera radioed for another unit to allow the officers to further secure the defendants while they completed their inventory. The second unit arrived within "a minute or two." After the second unit arrived, Rivera looked into the vehicle and observed the handgun. She secured the gun, which was a loaded 9-millimeter. She removed hollow-point bullets. Defendants were then placed under arrest. No further evidence was found on these persons.

Defendants were arrested and charged with second degree unlawful possession of a handgun without a permit to carry, N.J.S.A. 2C:39-5b, and fourth degree unlawful possession of hollow-point bullets, N.J.S.A. 2C:39-3f. Defendants moved to suppress the handgun and the bullets on the grounds that the search was unconstitutional. Following an evidentiary hearing, at which Rivera was the sole witness, the judge granted the defendants' motion to suppress.

On appeal, the State contends:

THE POLICE SEARCH OF DEFENDANTS' MOTOR VEHICLE WAS JUSTIFIED BY THE [AUTOMOBILE] EXCEPTION TO THE SEARCH WARRANT REQUIREMENT AND A VALID SEARCH FOR EVIDENCE OF OWNERSHIP.

The State argues that the judge erred in concluding that the underlying search of the automobile was not supported by exigent circumstances and not considering factors that are relevant in evaluating the exigency of a warrantless search. In particular, the time and location of the stop, the circumstances of the stop, the number of officers present when the handgun was observed, the vehicle possessed tinted windows, the presence of people in the immediate area and the officer's observation of a handgun. We agree. Moreover, we conclude that the seizure was permissible pursuant to the plain view exception.

The United States Constitution and New Jersey Constitutions guarantee the right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, 7. A warrantless search is presumed invalid unless it falls within a recognized exception to the warrant requirement. State v. Alston, 88 N.J. 211, 230 (1981). Among these exceptions are the plain view and automobile exceptions to the warrant requirement. State v. Wilson, 178 N.J. 7, 15 (2003); State v. Demeter, 124 N.J. 374, 380 (1991). The burden is upon the State to validate a warrantless search. Wilson, supra, 178 N.J. at 12.

Here, the judge found that there did not exist exigent circumstances to permit the officers to conduct a warrantless search of the vehicle to confiscate the handgun. The judge noted that although it was permissible for the officers to observe the handgun from the street in plain view using a flashlight, the officers did not have "an absolute right to access what [they] observed." Instead, the judge found that the officers' observations established probable cause to obtain a warrant to enter the vehicle or to tow the vehicle and perform an inventory search. We disagree and conclude that pursuant to the plain view (or non-search) exception and the automobile exception to the warrant requirement, the seizure of the handgun from the automobile occupied by defendants was justified.

In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). This court should also defer to the Law Division's credibility findings that are influenced by the ability to hear and view the witnesses. State v. Johnson, 42 N.J. 146, 161 (1964). However, the legal conclusions that flow from those facts are given no special deference on appeal. State v. Drury, 190 N.J. 197, 209 (2007).

Plain View Exception

The plain view exception allows an officer to seize without a warrant any evidence or contraband of a crime in plain view. Demeter, supra, 124 N.J. at 381-82. An observation into the interior of a vehicle by a police officer located outside the vehicle does not constitute a "search" under the United States or New Jersey Constitutions. State v. Johnson, 274 N.J. Super. 137, 153 (App. Div.), certif. denied, 138 N.J. 265 (1994). This is because "[t]here is no legitimate expectation of privacy . . . shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passerby or diligent police officer." Id. at 153-54 (quoting State v. Foley, 218 N.J. Super. 210, 216 (App. Div. 1987)). Thus, an observation of an object which is in plain view from outside a vehicle does not constitute an unlawful search. Id. at 154.

The State must prove three elements to satisfy the plain view exception. State v. Johnson, 171 N.J. 192, 206 (2002). First, the officer must be lawfully in the area from which the officer viewed the evidence. Ibid. Second, the officer must not know in advance where the evidence is located, nor have any intent to seize the evidence before viewing it. Id. at 206-07. Finally, the officer must have probable cause to believe that the item is associated with criminal activity. Id. at 207-08.

Here, although not addressed in the motion judge's decision, the facts developed during the suppression hearing support the application of the plain view exception. First, it is undisputed that the vehicle was lawfully stopped because the officers observed motor vehicle violations. The expansion of the investigation and the defendants' eventual detainment was a result of their failure to present any credentials establishing ownership, raising reasonable suspicion that the vehicle was stolen. See State v. Holmgren, 282 N.J. Super. 212, 215 (App. Div. 1995).

Bowles was legally outside of the vehicle when making the observation, as found by the motion judge. The officer's observation of the handgun therefore constituted a plain view observation, not a "search." See Johnson, supra, 274 N.J. Super. at 153-54. Moreover, the officer's observation using a flashlight into the interior of the vehicle while outside the vehicle did not transform the observation into a "search" under the United States or New Jersey Constitutions. Johnson, supra, 171 N.J. at 210; see also State v. Griffin, 84 N.J. Super 508, 517, (App. Div. 1999). Any person walking around the vehicle could have made such an observation. Thus, this element is met.

Second, the record reflects that the officer inadvertently observed the handgun. The motion judge found Rivera's testimony credible which established that the officers spontaneously stopped the defendants after observing motor vehicle violations. The officers did not know in advance that an illegal handgun and hollow-point bullets would be found in the vehicle. Further, the fact that Bowles intended to perform an "inventory" of the car and may have been in fact looking for evidence of criminal activity does not negate inadvertence. The subjective intention of an officer is irrelevant so long as the circumstances viewed objectively justify the action. See State v. O'Neal, 190 N.J. 601, 614 (2007). The officers had reasonable suspicion that the vehicle was stolen and therefore could have searched the vehicle for documents pertaining to ownership. State v. Pena-Flores, 198 N.J. 6, 31 (2009).

Third, Officer Bowles immediately identified the object as the "butt of a handgun." A handgun does not constitute an intrinsically innocent object. See Demeter, supra, 124 N.J. at 381-82. Thus, probable cause was established.

Further, our holding is bolstered by this court's decision in State v. Moller, 196 N.J. Super. 511 (App. Div. 1984). There, the defendants were pulled over for a defective taillight. Id. at 513. The officers were informed prior to conducting the stop that the vehicle was involved in a narcotics transaction. Ibid. The defendants appeared nervous and were asked to exit the vehicle where they were issued a summons. Ibid. Two to three minutes later, another officer arrived and viewed from outside the vehicle what he believed to be drugs and paraphernalia. Id. at 513-14. A narcotics investigator was then radioed and arrived at the scene in two to three minutes. Id. at 514. The narcotics investigator concluded that the objects were "possibly cocaine" and "items used in ingesting narcotics." Ibid. The officers then seized the contraband. Ibid. The Law Division suppressed the evidence on the grounds that the second officer arrived at the scene for the purpose of discovering evidence, negating inadvertence. Ibid.

On appeal, this court found that the Law Division improperly suppressed the evidence. Id. at 514-15. This court concluded that even if the second officer arrived at the scene only to look into the car, his intention was irrelevant because he observed the evidence in plain view from his position in the public street, rendering the ultimate seizure of the evidence reasonable. Id. at 515. Further, this court noted that any use of a flashlight to aid the observation was clearly permissible. Ibid.

In this case, Bowles was not aware that the vehicle contained a handgun prior to viewing the interior of the vehicle from the public street. This observation, like in Moller, was made after the vehicle occupants exited the vehicle. The Moller court did not base its decision on when the contraband was observed in plain view, but instead determined whether the officers were lawfully in an area to make the observation. 196 N.J. Super. at 515. The motion judge therefore erred in focusing on the sequence of events that occurred prior to when the handgun was observed in plain view.

Automobile Exception

Pursuant to the automobile exception, the warrantless search of a vehicle is permissible where: (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist. Pena-Flores, supra, 198 N.J. at 28. Defendants do not challenge on appeal the motion judge's findings that the stop was lawful and that the police had probable cause to believe the vehicle contained evidence of a crime. The State must therefore demonstrate that under the totality of the circumstances, there existed sufficient exigency that rendered it impracticable to obtain a warrant. State v. Cooke, 163 N.J. 657, 667 (2000). This determination must be made on a case-by-case basis and no single factor is controlling. Pena-Flores, supra, 198 N.J. at 29. The Supreme Court has recognized a non-exhaustive list of "[l]egitimate considerations," including:

the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

[Id. at 29-30.]

Appling these factors to the instant case, we find that the State has sufficiently established that exigent circumstances existed rendering it impracticable to obtain a warrant. The case law relied on by both parties involves situations that pertain to warrantless searches of the entire interior of vehicles to preserve evidence, specifically drugs. See Cooke, supra, 163 N.J. at 673-75; State v. Dunlap, 185 N.J. 543, 544-46 (2006); Pena-Flores, supra, 198 N.J. at 12-17. These cases do not involve the seizure of contraband in plain view.

In particular, in its letter to the court after the brief was filed, the State relied on this court's recent decision in State v. Lewis, 411 N.J. Super. 483 (App. Div. 2010). There, the officers observed a narcotics transaction and pulled over the van which received the money. Id. at 485. The officers observed the defendant place something under his seat and the officers believed that the defendant had discarded something. Ibid. The officer then retrieved a black leather case and looked inside, which revealed a large quantity of cocaine. Ibid. There were five or six people within the vicinity of the stop at the time of the search. Ibid. The motion judge, however, found that the State failed to establish "exigency" required to uphold the validity of the search of the van. Id. at 486. The decision to suppress the evidence was based on the fact that the defendants were detained in the back of the officers' vehicle and the black leather case was closed and did not appear dangerous. Ibid.

On appeal, this court applied the factors set forth in the then recently decided case, Pena-Flores, supra, 198 N.J. at 32, and found that the State made a sufficient showing of exigent circumstances to uphold the search. Lewis, supra, 411 N.J. Super. at 489-90. This court based its decision on the fact that the observations were unanticipated and the officers involved in the investigation were "stretched out kind of thin." Id. at 490. Moreover, this court also noted that the stop occurred in a high crime area and five or six people congregated in the area of the stop. Id. at 489.

Here, the presence of handgun in an open vehicle, regardless of whether the defendants were detained, triggers enhanced safety concerns and constitutes a significant factor in determining whether exigent circumstances exist. State v. Diloreto, 180 N.J. 264, 281-82 (2004); see also Alston, supra, 88 N.J. at 234-35; State v. Wilson, 362 N.J. Super. 319, 333-36 (App. Div.), certif. denied, 178 N.J. 250 (2003); State v. Hammer, 346 N.J. Super. 359, 367-70 (App. Div. 2001). This case is distinguishable from the circumstances in Lewis because the officers here observed a dangerous object in plain view. The officers were not concerned with preserving evidence. Moreover, as the Supreme Court has recognized, a vehicle is potentially accessible to third parties until the vehicle is seized by the police and removed from the scene. Cooke, supra, 163 N.J. at 674. It is impracticable to permit officers to search a vehicle for papers of ownership, yet preclude officers from seizing a handgun in plain view when investigating ownership from outside the vehicle. See Pena-Flores, supra, 198 N.J. at 31 (citing State v. Boykins, 50 N.J. 73, 77 (1967)).

Further, the stop here was spontaneous and unexpected. The stop was a result of the officers' observance of motor vehicle violations. The investigation was extended due to the defendants' failure to prove ownership, creating a reasonable suspicion that the vehicle was stolen. During the investigation, a weapon was discovered in plain view from the street. This furnished the officers with probable cause that illegal contraband was located in the car. These circumstances were unanticipated. In addition, the stop occurred during the early morning, 3:45 a.m., in an urban setting where Rivera previously made fifteen to twenty quality of life arrests. The officers could not leave the vehicle abandoned due to the inherent danger of the handgun. The possibility that a third person could access the handgun must be taken with precaution because a handgun poses a greater threat than the presence of drugs in a vehicle.

Moreover, the record demonstrates that the officers' "search" was limited to removing the handgun from the vehicle. The officers did not extend the search to other areas of the vehicle. Instead, the officers removed the "inherently dangerous" contraband.

The motion judge's decision was based on the fact that the officers were not concerned with their public safety, the defendants were detained in the back of the police car and posed no threat, there was no interaction with the people coming from the convenience store and gas station and there was not any suspicion that "confederates" might attempt to remove contraband from the vehicle. The record reflects that the motion judge accorded great weight to the fact that the defendants were detained. However, "exigent circumstances do not dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement." Cooke, supra, 163 N.J. at 672 (quoting Alston, supra, 88 N.J. at 234). The fact that one or two additional officers arrived at the police scene does not negate the inherent danger of a handgun. The motion judge's application of the exigency exception was too restrictive and reliance on the case law pertaining to instances involving the preservation of evidence is misplaced.

 
Reversed and remanded to the Law Division, Essex County for trial.

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A-0830-09T4

April 1, 2010