STATE OF NEW JERSEY v. EDWIN PATILLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1734-08T41734-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWIN PATILLO,

Defendant-Appellant.

___________________________________

 

Submitted March 10, 2010 - Decided

Before Judges Cuff, Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-08-1672.

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

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Edwin Patillo appeals his conviction for (1) second-degree use of personal identifying information of another, contrary to N.J.S.A. 2C:21-17.2(a); (2) third-degree tampering with public records, contrary to N.J.S.A. 2C:28-7(a)(1); and (3) fourth-degree falsifying or tampering with records, contrary to N.J.S.A. 2C:21-4(a), as well as the resulting aggregate sentence of fifteen years incarceration, during seven and one-half years of which he will be ineligible for parole. We affirm the trial judge's decision denying the motion to suppress the seizure of an identification card with Patillo's picture but another person's name, but remand to the Law Division for reconsideration of the motion as it related to the binder and related documents seized at the time of Patillo's arrest. We also remand for reconsideration of the motion to suppress Patillo's subsequent statements to the police. Because of the remand, we do not reach the other issues raised on appeal.

I.

We discern the following facts and procedural history from the record.

Patillo was in a restaurant in Pleasantville on September 11, 2005, when he was recognized by Atlantic County Sheriff's Officer Robert Demoulin. He had seen Patillo's picture on an Egg Harbor Township Police Department "flier" stating that a warrant had been issued for his arrest. Demoulin contacted the Egg Harbor Township Police Department to notify them of Patillo's whereabouts and confirm that the arrest warrant was still active. He then contacted the Pleasantville Police Department and requested that a police car be dispatched to apprehend Patillo.

Demoulin waited in the parking lot until Pleasantville Detective Chris Taggart arrived. Before leaving, he showed Taggart a copy of the flier with Patillo's picture.

While Taggart waited in the restaurant parking lot for police officers from Egg Harbor Township to arrive, Patillo left the restaurant. He got into the front passenger seat of an SUV, which then exited the parking lot.

The police stopped the SUV carrying Patillo. The female driver was identified as Cynthia Shepperson. Taggart and another officer approached the SUV on the passenger side. Patillo told the officers that his name was Leon Hopewell. Patillo did not provide any identification, but Taggart was uncertain whether he had asked Patillo for it.

Taggart directed Patillo to exit the vehicle because he wanted to determine whether the right person had been stopped. Taggart testified that when Patillo got out of the car, he saw a black binder lying open on the back seat. He was approximately three feet away from the binder when he noticed it. A picture identification card was "protruding" from the binder. According to Taggart, a list of names and other information was visible on an open page in the binder.

Taggart started to retrieve the binder and identification card for the purposes of determining whether the passenger was Patillo, whom he closely resembled, or someone named Hopewell who resembled Patillo's picture on the flyer. As he was reaching for the binder and identification card, Taggart heard Patillo say: "I'm Edwin Patillo." Taggart retrieved the card, which was an employee identification card from Shore Memorial Hospital. Although it had a picture of Patillo, the name on the identification card was Leon Hopewell.

According to Taggart, he did not examine the binder except for the identification card and the open page. The open page contained a list of names, birth dates, and social security numbers. Taggart asserted that he retrieved the identification card to identify Patillo and that he was not searching for evidence or concerned that the binder might contain a weapon.

Shepperson testified that the entire stop lasted five to ten minutes, following which the police officers took Patillo away. She also testified that she was very nervous at the time of the stop. Her recollection was that the notebook was in the back seat, but closed at the time Patillo got out of the SUV. She remembered putting her own papers in the backseat and seeing a closed black binder. She did not remember any police officer taking the binder from the car, and only became aware that the binder had been removed when she was subsequently called by an officer and asked if she knew anything about it. Taggart, however, testified that he asked Shepperson about the binder and that she motioned toward Patillo, indicating that it was his.

According to Taggart, he closed the binder after he examined the identification card. Taggart explained that he took the entire binder, as opposed to just the identification card, because he believed the binder might contain evidence of other crimes. He had intended to turn it over to an Egg Harbor Township police officer, but the officer had already placed Patillo in his patrol car and left. Consequently, Taggart notified Egg Harbor Township Detective Sidney Terrell, the lead investigator for the case in which Patillo's arrest warrant had been issued, about the identification card and binder. At Terrell's request, Taggart brought the binder to the Egg Harbor Township Police Headquarters.

Terrell testified at the suppression hearing concerning the binder and related items that he received the binder from Taggart in a paper bag. On examining the binder, he noticed that the zipper used to close the binder was open. He believed that Taggart may have given him the identification card separately, but he later testified that Taggart told him that the identification card and a Commerce Bank card were inside the binder. When asked to confirm that Taggart had not given him anything separately, Terrell responded: "That's correct."

Terrell testified that he did not look in the binder, or the two notebooks inside the binder, because he "knew that if there was anything within those notebooks [he] would have to obtain a warrant to do it." He further testified that he sealed the binder, and entered it in the evidence log as a "black leather notebook holder containing two paper notebooks and documents." When asked if he opened the binder to read anything in detail, he answered "no." He also testified that he was aware that there were loose papers in the binder, but that he did not read them.

According to Terrell, when Patillo was questioned that afternoon, he stated that he was related to Hopewell, who had given him permission to use his identity. When Hopewell was interviewed following his arrest on unrelated charges, however, he denied being related to Patillo or allowing Patillo to use any of his identification.

Several weeks later, Terrell obtained a search warrant permitting him to examine the contents of the binder. Although the application for the search warrant is not part of the record, it is apparent from the transcript of Terrell's testimony that he represented to the warrant judge that Taggart had looked in the binder because he was concerned about weapons. However, he testified at the suppression hearing that Taggart had not told him so and that it was an assumption on his part.

Terrell was apparently also quite specific on the application in describing what he anticipated would be found in the binder. The following exchange took place at the suppression hearing:

Q. . . . [H]ow did you know to write on your application about the utility bills and different account holders' Social Security numbers, date of births, credit card numbers and drivers license in other people's names?

A. It was obvious to me that there were other items . . . within this binder other than the, the blue notebook and the black notebook and the Shore Memorial identification card and the Commerce Bank card because of the bulkiness, the bulkiness of the other items, paper items inside here.

Q. But all, for all you knew it could have all been Mr. Patillo's. You did not know that they belonged to or they had other information pertaining to other people, right?

A. That's correct. At that time I did not know that.

Q. . . . [W]hen you are applying for this search warrant how do you know to be that specific that that's what it contains if you did not see that in the notebook?

A. Bas[ed] on Mr. Patillo's history, past history and my interview of Mr. Patillo I came to that conclusion.

Q. . . . Mr. Patillo never indicated to you that he had utility bills, . . . Social Security numbers, date of births, credit card numbers and drivers license numbers of other people in that black notebook.

A. Mr. Patillo did admit to me that there were other persons' names within that, within that binder. I asked him specifically about a --

Q. Is that in your report?

A. I asked him specifically about a check that was in question that we were investigating under the name, I believe it was William Glass. And I believe that is in my report.

Q. And you're saying that you asked him about a check and, . . . he admitted to have that information inside that black leather notebook?

A. Just one moment. (witness reading) The question I asked him, I stand corrected, was not pertaining to the check. I did question him about the check but he made reference that it was the other guy who had the check. But I did ask him about the name, date of birth, and Social Security number of Leon Hopewell. And he told me that he allowed him to use his identification.

Q. But as far as the specific utility bills, drivers license numbers, Social Security numbers under other people's names, you did not know that for certain when you applied for the application because you did not look inside that notebook.

A. That's correct.

Q. . . . [Y]our testimony is that Officer Taggart . . . only indicated to you that there were, there was [an] identification in the name of Leon Hopewell with Mr. Patillo's photograph and cash, or a debit card from Commerce Bank.

A. That's correct.

Q. He showed you where they were located, or he described where it was located within that black notebook.

A. That's correct.

Q. Did he indicate to you anything else that he found in the notebook or indicate that he searched through the notebook to find specific information like Social Security numbers and drivers license numbers or anything that was listed on your affidavit?

A. No, ma'am.

Q. So do you recall where you got that information to put it in the application, the specific, what you thought, believed that you would find?

A. . . . [T]he interview I did with Mr. Patillo with the date of birth, he advised me that Mr. Hopewell permitted him to use his date of birth, Social Security, et cetera.

Q. And based on that you believed that now within that black leather notebook you believed you would find utility bills and different named account holders, other personal information on other people just based on the fact that he had another identification in Leon Hopewell?

A. That he had fraudulent identifica- tion already and that he had admitted to using someone else's identifiers specifically, date of birth, Social Security numbers, without their permission.

Q. And that was just basically a hunch based on your interview with Mr. Patillo?

A. That was not a hunch. That was pretty much factual based on what he stated. He stated that he used Mr. Hopewell's identifiers, specifically so - -

Patillo was indicted and subsequently moved to suppress the identification card and the binder. After hearing the testimony outlined above, the judge delivered an oral decision on January 5, 2007. He denied the motion, citing State v. Bruzzese, 94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). He found that the identification card was in plain view and, for that reason, its seizure was lawful. He also found that the binder was open with the list of names and other information showing, rather than closed as Shepperson remembered. The judge based his findings on a determination that Taggart's testimony was more credible than Shepperson's testimony, noting that she had admitted to being very nervous and scared when the vehicle was stopped. Nevertheless, the judge expressed some concern about the discrepancy between Taggart's testimony that he was not looking for weapons and Terrell's assertion in the application for the search warrant that Taggart was looking for weapons. He described it as "a poor attempt by Terrell to further embellish and justify the search, which is unprofessional and inappropriate."

Patillo subsequently moved to suppress the statements he made to Terrell following his arrest. On April 17, 2008, the trial judge held a Miranda hearing. Terrell testified that, approximately half an hour after Patillo was apprehended, he told Patillo that he wanted to question him about cashing a bad check, the matter that gave rise to the arrest warrant. They went to an interview room, where no recording devices were used.

Terrell testified that he read Patillo his Miranda rights, asked if Patillo had any questions about those rights, and witnessed Patillo sign the Miranda waiver. Terrell acknowledged, however, that he did not tell Patillo that his investigation also included identity theft. When Patillo was asked as to what he thought Terrell was investigating at the time, Patillo responded that he believed the investigation had to do with an allegation of cashing a bad check. Patillo denied that Terrell had informed him of his Miranda rights, and also asserted that the signature on the Miranda waiver form was not his.

According to Terrell, he had asked Patillo about documents identifying him as Leon Hopewell, including the Shore Memorial identification card, a social security card, a birth certificate, and a Commerce Bank debit card. Patillo testified that Terrell began the interview by questioning him about a driver's license with his picture and Hopewell's name. In contrast to his testimony during the earlier suppression hearing, Terrell testified that the bag he received from Taggart had contained, in addition to the binder, "separate little individual documents" that were "loosely in the bottom of the bag." He also testified that he used those documents in questioning Patillo and also relied on them in preparing the application for the search warrant.

Terrell testified that Patillo told him that Hopewell was his cousin; but Patillo did not know whether Hopewell was aware that he had been using Hopewell's identity. According to Terrell, Patillo was using Hopewell's name because he had just been released from prison and needed another identity for employment and "additional advancement" reasons. Terrell testified that Patillo told him he was aware that using the identification and bank cards was illegal.

According to Terrell, Patillo told him he received the Shore Memorial identification card when he was employed at the hospital for a period of two to three months, and that he had opened the Commerce Bank account in Hopewell's name three years prior without Hopewell's knowledge.

Patillo testified at the Miranda hearing and asserted that he told Terrell he was not feeling well as they entered the interview room, but that Terrell did not believe him. According to Terrell, however, Patillo did not tell him that he was not feeling well during the interview, but only said so fifteen to twenty minutes afterwards. By that time, Patillo had been removed from the interview room and advised that there were other charges pending against him. An ambulance was called. After Patillo was diagnosed with high blood pressure, he was taken to the hospital. Patillo testified that while at the hospital, he was prescribed medication for the high blood pressure and, after a few hours, was taken to the Atlantic County jail.

The judge found no Miranda violation. He held that the statements relating to documents with Hopewell's name were admissible. The judge described the credibility of Terrell and Patillo as follows:

So I can't think of a case in the whole history I have had sitting in this Court, sitting as a Judge or even for that matter in my years as a Prosecutor or Defense attorney where it's so clearly a matter of credibility that the Judge must determine, and with all due respect to Mr. Patillo, I make this finding not simply because he's a defendant and Detective Terrell is a detective. I probably know Mr. Patillo better than I know Detective Terrell. I think the only case I ever encountered Detective Terrell is this case or the other matter related to it. Whereas I dealt with Mr. Patillo now almost the whole time I have been on the bench, almost nine, nine-and-a-half years, and so it's not as though I don't know Mr. Patillo. It's not as though I don't know that he's an educated individual who is very, very bright. Who writes letters that talk about the law and his understanding of the law. He's not a lawyer. And it's almost like one of these bad tryouts for American Idol where you think you're a great singer and your family tells you you're a great singer, but really, you're not such a great singer.

. . . .

So I find Mr. Patillo totally incredible and unbelievable with regard to two very major portions of his testimony. . . . [T]here's a jury charge that says if you believe a person has misrepresented a material fact, you may look at the credibility of his testimony and disregard all of it as being totally incredible, including the "issue" with regard to his high [blood pressure]. First of all, if the man admits he was not on medication for that condition, if it's a pre-existing condition, it certainly wasn't to the point where the defendant felt a need to go to the doctor and get medication prior to this.

Secondly, I believe the Detective when [he] testified that, basically Mr. Patillo is very calm, very mellow with him until about fifteen, twenty minutes after the statement had ended, all of a sudden he's confronted by the fact, oh, by the way, you're going to jail because Absecon has warrants on you. You have a big bail to post. That's when the blood pressure may have escalated. . . . But that does not, in any way, excuse or at all address the knowing, intelligent, and voluntar[y nature] of the waiver.

The judge also based his decision on his opinion that the signature on the Miranda waiver was Patillo's, stating that he had compared it to the signature on other items signed by Patillo that had been entered into evidence. He noted, however, that it was "a bad idea" for Terrell not to have had Patillo's signature on the Miranda form witnessed.

The jury trial started on June 4, 2008, and continued on June 5 and 9. On June 9, the jury found Patillo guilty on all counts. Patillo moved for a new trial on the grounds that the verdict was against the weight of the evidence. On July 14, 2008, the trial judge heard oral argument and denied Patillo's motion, finding that the evidence of guilt was "overwhelming."

On the same day, the judge sentenced Patillo to fifteen years in prison, with seven and one-half years of parole ineligibility, on count one. He merged count three into count one, and sentenced Patillo to a concurrent five years on count two.

This appeal followed.

II.

Patillo raises the following issues on appeal:

POINT I: THE TRIAL COURT COMMITTED HARMFUL ERROR IN LIMITING DEFENSE COUNSEL'S ABILITY TO CROSS-EXAMINE LEON HOPEWELL BECAUSE, CONTRARY TO THE PROSECUTOR'S REPRESENTATIONS, HOPEWELL WAS UNDER ARREST, AND THIS RESULTED IN A "HOLD" OVER THE WITNESS WHICH THE DEFENDANT WAS ENTITLED TO EXPLORE.

POINT II: THE DEFENDANT'S UNRECORDED ORAL STATEMENTS MADE TO DETECTIVE TERRELL AT THE EGG HARBOR POLICE STATION ON SEPTEMBER 11, 2005, SHOULD HAVE BEEN SUPPRESSED BECAUSE THE DEFENDANT WAS NEVER ADVISED THAT HE WAS BEING QUESTIONED ABOUT CRIMES THAT HAD ALLEDGEDLY OCCURRED ON MARCH 31, 2004, AND BECAUSE THE DEFENDANT WAS IN CUSTODY AND NOT ADVISED OF HIS MIRANDA RIGHTS.

POINT III: IN DENYING THE MOTION TO SUPPRESS, THE TRIAL COURT IMPROPERLY SHIFTED THE BURDEN OF PROVING THE ILLEGALITY OF THE WARRANTLESS SEARCH AND SEIZURE TO THE DEFENDANT.

POINT IV: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.

(A) THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED BECAUSE THE STATE ONLY PRODUCED SPECULATIVE EVIDENCE OF GUILT.

(B) THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

POINT V: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY MISREPRESENTATIONS MADE BY THE PROSECUTOR IN SUMMATION CONCERNING THE DOCUMENTS SEIZED AFTER THE DEFENDANT'S ARREST ON SEPTEMBER 11, 2005 (NOT RAISED BELOW).

POINT VI: THE 15 YEAR CUSTODIAL SENTENCE WITH 7 1/2 YEARS OF PAROLE INELIGIBILITY IMPOSED ON THE DEFENDANT'S CONVICTION ON COUNT ONE FOR USING THE PERSONAL IDENTIFYING INFORMATION OF ANOTHER WAS MANIFESTLY EXCESSIVE.

(A) THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED TERM SENTENCE.

(B) IMPOSITION OF AN EXTENDED BASE TERM OF 15 YEARS WITH 7 1/2 YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE.

We begin our analysis with the pretrial motions to suppress the binder and Patillo's statements to Terrell.

The Supreme Court has explained the standard of review applicable with respect to a trial court's fact-finding on a motion to suppress as follows:

Our analysis must begin with an understanding of the standard of appellate review that applies to a motion judge's findings in a suppression hearing. As the Appellate Division in this case clearly recognized, an appellate court reviewing a motion to suppress 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, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
 
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007).]

However, our review of the judge's legal conclusions is plenary. State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010).

Patillo contends that the trial judge erred in denying the motion to suppress the physical evidence found during Taggart's search of the SUV, arguing that it was not a plain view search. The State contends that the trial court properly applied the plain view exception to the warrant requirement, and that the search was also appropriate because Patillo gave the police a false identity.

The United States 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). The burden is upon the State to validate a warrantless search. State v. Wilson, 178 N.J. 7, 12-13 (2003). "Because our constitutional jurisprudence evinces a strong preference for judicially issued warrants, the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure 'falls within one of the few well-delineated exceptions to the warrant requirement.'" Elders, supra, 192 N.J. at 246 (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)). See also State v. Pena-Flores, 198 N.J. 6, 18 (2009).

The trial judge found that the identification card with Patillo's picture and Hopewell's name was sticking out of the open binder and in plain view. That finding is adequately supported in the record. A simple observation into the interior of a vehicle by a police officer located outside the vehicle is not a "search" under the United States or New Jersey Constitutions. State v. Johnson, 274 N.J. Super. 137, 154 (App. Div.), certif. denied, 138 N.J. 265 (1994). "There 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 passersby or diligent police officers." Id. at 153 (quoting State v. Foley, 218 N.J. Super. 210, 216 (App. Div. 1987)); see also State v. Smith, 37 N.J. 481, 496-97 (1962), cert. denied, 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963). "Thus, the viewing of objects which are in plain view within an automobile does not constitute an unlawful search." Johnson, supra, 274 N.J. Super. at 154.

The plain view exception first requires the officer to be in the viewing area legally. State v. Lane, 393 N.J. Super. 132, 144 (App. Div.), certif. denied, 192 N.J. 600 (2007). Second, the evidence must be discovered "inadvertent[ly]," meaning "the officer 'did not know in advance where evidence was located nor intend beforehand to seize it.'" Ibid. (citations omitted). "[T]hird, the officer must have probable cause to associate the property with criminal activity." Ibid. In other words, the criminality of the object must be "immediately apparent." Id. at 149. See also Bruzzese, supra, 94 N.J. at 236.

The first two factors are clearly present here. While it cannot be said that the partially obscured identification card was inherently evidence of criminal activity, we conclude that Taggart had a lawful basis to access the card in determining whether he was confronted by Patillo, as to whom there was an outstanding arrest warrant, or someone named Leon Hopewell, as to whom there was no warrant. As Taggart was about to look at the identification card, Patillo suddenly admitted that he was really Edwin Patillo. Having by that time been given two different names by Patillo, we hold that Taggart was justified in looking at the card to verify Patillo's identity.

In Bruzzese, supra, 94 N.J. at 238, the case relied upon by the trial judge, the Court held that the "immediately apparent" requirement was satisfied even though the police had to examine the soles of boots in plain sight to determine whether they had the distinctive pattern found in footprints at the scene of a burglary. Here, once Taggart ascertained that the card had Patillo's picture and Hopewell's name, Taggart had "probable cause to associate [it] with criminal activity." Consequently, Taggart's seizure of the identification card at that time was proper, and we affirm as to that issue.

Patillo also challenges the seizure of the binder, arguing that a warrant was required. Having lawfully seen the identification card with Patillo's picture and another person's name and the open page of personal information about various individuals, Taggart clearly had reason to believe that the binder might contain evidence of criminal activity. We cannot fault his decision to take the binder with him, rather than leaving it with Shepperson, who had denied any ownership interest in it and was free to leave the scene of the arrest at that time. To have done so would have risked its destruction. There is no basis in the record to conclude that Taggart searched the binder after he took possession of it. There was sufficient exigency to warrant its temporary impoundment, pending receipt of a search warrant. See Pena-Flores, supra, 198 N.J. at 28-30. We agree with the trial judge's ruling to that extent.

Unfortunately, it is not clear from the record before us whether Terrell actually waited until he received the search warrant before he examined the contents of the binder, as he testified at the first pre-trial hearing, or whether there were documents loose in the bag given to him by Taggart, as Terrell testified at the second pre-trial hearing. We find it difficult on the present record to reconcile what appear to be two mutually inconsistent versions of the events given by Terrell at different times.

A fair reading of Terrell's initial testimony is that he received the binder from Taggart, noted that it contained loose papers that he did not examine, sealed the binder, and applied for a search warrant several weeks later. Under this scenario, he questioned Patillo about the identification card but did not use specific documents. A fair reading of his subsequent testimony at the Miranda hearing is that he received the binder as well as some separate, loose papers, including the documents related to Hopewell, about which he questioned Patillo the same day, and then only sought a warrant to examine the remaining documents in the binder.

Establishing the actual underlying facts is crucial to the issue of whether the documents and Patillo's statements should have been suppressed because, if Terrell inspected the documents in the binder without a warrant and then used them to question Patillo, the search was illegal and the documents other than the identification card should have been suppressed. In addition, at least some, if not all, of the statements made by Patillo during the questioning are the "fruit of the poisonous tree" and should also have been suppressed. See Wong Sun v. U.S., 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963).

The trial judge's overall credibility determinations may also have been skewed because he heard the differing testimony on different days, which were months apart. The motion to suppress was determined in light of Terrell's testimony that he received only the binder and the identification card and that he never opened the binder until he received the search warrant, as well as his assertion that the contents of the warrant application were based on his instincts of what was in the binder because of its size, his knowledge of Patillo, and what Taggart said he saw on the single page. In contrast, the decision at the Miranda hearing was based on Terrell's testimony that he questioned Patillo about documents that were loose in the paper bag, a "fact" never mentioned at the prior hearing, and that he based the warrant application on those documents. These apparent discrepancies, on top of what the trial judge has already described as "a poor attempt by Terrell to further embellish and justify the search, which is unprofessional and inappropriate," could cause the trial judge to take a different view of prior credibility findings and his rulings on the suppression motions.

Consequently, we remand the motions to suppress the physical evidence, other than the identification card, and Patillo's statements to Terrell to the trial judge for supplementation of the record and reconsideration. Defense counsel should be given the opportunity to explore Terrell's actions more fully, both as to the documents and Patillo's statements. The State and Patillo may seek to supplement the record in other ways, subject to the trial judge's exercise of sound discretion. The judge must then reconsider his prior rulings and explain his decision in detail.

The doctrine of "law of the case" is discretionary when applied to interlocutory orders. State v. Reldan, 100 N.J. 187, 205 (1985). That discretion must be exercised on the basis of "relevant factors that bear on the pursuit of justice and, particularly, the search for truth." Ibid. We have concluded that the apparent inconsistency in Terrell's testimony requires that the decisions in both pre-trial motions be reconsidered together in the interests of "the pursuit of justice and, particularly, the search for truth."

In light of the remand, we do not reach the other issues raised on appeal. We do not retain jurisdiction.

Affirmed in part, and remanded in part.

 

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

Although the trial judge permitted defense counsel to explore the issue of inconsistency over the State's objection that the earlier suppression decision was "the law of the case," he limited it solely to the witness's credibility for the purposes of the Miranda hearing.

(continued)

(continued)

26

A-1734-08T4

July 22, 2010