STATE OF NEW JERSEY v. TERRANCE L. MARTIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2875-10T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

TERRANCE L. MARTIN,

Defendant-Respondent.

___________________________

Argued June 6, 2011 Decided July 18, 2011

Before Judges Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 10-04-0262.

G. Harrison Walters, Assistant Prosecutor, argued the cause for appellant (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, of counsel and on the brief).

Amira R. Scurato, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney; Ms. Scurato, of counsel and on the brief).

PER CURIAM

The State appeals, on leave granted,1 from the January 3, 2011 order granting defendant's motion to suppress drugs seized from his automobile following his arrest as well as statements he made at the arrest scene. We affirm.

Vineland Police Detective Angel Mercano, along with Detectives Ferrari and Ortiz, was riding in unmarked police vehicle around 5:00 p.m. on November 3, 2009. The officers stopped defendant's automobile for speeding. Ferrari approached the driver's side and Mercano approached the passenger side. Defendant, who had been driving, attempted to exit the automobile; Ferrari asked him to get back in and he complied. Defendant was able to produce an insurance card and registration, but not a driver's license. Ferrari learned defendant's name by asking him for his "identifiers."

A warrant check revealed an outstanding warrant for defendant's arrest. Mercano and Ortiz placed defendant under arrest; they searched him and found a "large sum of money" on his person. Defendant was handcuffed and taken to the police vehicle. At this time Mercano was standing outside the driver's door talking to Brian Dawkins who was sitting in the front passenger seat. Mercano testified that he was "in between the open door and . . . bending down." He observed "a sandwich bag in between the door jamb and the seat," and could see that it contained "[s]maller, clear plastic bags with [a] white substance in them."

Mercano picked up the bag and "was about to ask . . . Ortiz to arrest . . . Dawkins and [defendant] screamed from the back[:] 'That's my drugs. It's not his.'"

On cross-examination, the following colloquy ensued:

Q. Were you leaning in to talk to Mr. Dawkins?

A. I was bent down.

Q. You were bent down? And were you leaning in so that you could talk to him?

A. No. Not leaning in the car, no.

Q. So you were bent down but outside?

A. Yeah.

Q. Your physical body never kind of crossed into the car . . . ?

A. It may have. . . . [B]ut . . . I wasn't in the car.

Brian Dawkins testified that after defendant was removed from the automobile and placed under arrest, the "officer . . . on the driver's side" started talking to him, "looking around in the car . . . ." The officer was "standing . . . in . . . a 45-degree angle . . . . [K]ind of the head in the car . . . ." His hands were "moving all around . . . checking things out. . . . He touched the seat and the carpet, the floor."

At the conclusion of the testimony, the judge made the following findings: (1) the stop of defendant's automobile was lawful; (2) Mercano "made arrangements for [defendant] to be placed under arrest"; (3) it was not Mercano's "intent necessarily to stick his head in [the car] and start looking around but during the course of the conversations and the way he was leaning, his head was inside the door"; and (4) "during the course of this, [Mercano] was doing what any officer in that situation may have been doing." The judge asked the parties to brief the issue of "whether or not [Mercano's] breaking of the threshold here" was "proper" or "improper" based upon "the facts as the [c]ourt found them to be."

After reviewing the briefs and hearing additional oral argument, the judge rendered a decision from the bench, incorporating his previous findings. The judge found that Mercano was "a very credible witness" who was "candid with regard[] to his actions on that particular day." The judge further found that Mercano "was unsure as to whether or not he made the observations when his head had crossed the plane of the door or when his head was outside of the car."

The judge determined that the State had failed to meet its burden of proof "that what this officer did was objectively reasonable." The judge found that Mercano had

no need . . . to be so close to the car or to lean that far forward into the car.

He was talking to the occupant[] of the car. All he had to do was bend down. He didn't have to lean inside the vehicle. Once he lean[ed] inside the vehicle, . . . he broke the plane of the vehicle.

. . . [T]he burden of proof is on the State to establish that . . . those observations took place from a legal vantage point.

The State cannot meet that burden of proof. Its own witness testified that he wasn't sure where and when he made those observations.

The judge concluded that the drugs were not found in plain view because "by the officer breaking the plane of the vehicle with his head, . . . he was not and had no right to be where he was at the time he saw the contraband." The judge ordered that neither the drugs nor defendant's "on-scene" statements about them would be admissible at trial.

On appeal, the State raises the following contentions for our consideration:

POINT I

THE TRIAL COURT ERRED IN ITS APPLICATION OF THE "OBJECTIVELY REASONABLE" STANDARD TO POLICE CONDUCT IN THE CONTEXT OF A WARRANTLESS SEIZURE

A. The Trial Court's factual determinations are incongruous, given its own findings of credibility

B. Notwithstanding the error in the findings of fact, the Trial Court misapplied the established case law regarding objective reasonableness

POINT II

THE CONTROLLED DANGEROUS SUBSTANCES FOUND IN THE CAR WERE SEIZED PURSUANT TO THE PLAIN VIEW DOCTRINE

POINT III

THE FRUIT OF THE POISON TREE DOCTRINE DOES NOT APPLY.

When reviewing a decision on a motion to suppress, we will uphold the factual findings of the trial judge if those findings are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation omitted). We may not substitute our own conclusions regarding the evidence, even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).

The State contends that the judge's findings in his final decision are inconsistent with his findings at the conclusion of the testimony. We disagree. After the hearing, the judge found that Mercano did not "necessarily" intend "to stick his head in" the car, but that "the way he was leaning, his head was inside the door." The judge then commented that Mercano "was doing what any officer in that situation may have been doing." We cannot agree with the State's claim that this latter statement was a finding that Mercano's actions were objectively reasonable. In context, this comment appears to be merely an observation that many officers would do the same thing Mercano had done, not a finding that such conduct was objectively reasonable.

It is the State's burden to prove that a warrantless search falls within one of the recognized exceptions to the warrant requirement. State v. Davila, 203 N.J. 97, 112 (2010); State v. Pena-Flores, 198 N.J. 6, 25 (2009). With respect to the "plain view" exception, the State must satisfy three criteria: (1) the officer must be lawfully in the viewing area; (2) the officer must discover the evidence inadvertently; and (3) the officer must immediately recognize that the items in plain view are contraband or evidence of a crime. State v. Mann, 203 N.J. 328, 341 (2010). The failure to meet any one of these criteria will preclude the State from invoking the plain view doctrine. 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).

Here, the judge found that the State had failed to satisfy the first criterion, namely that Mercano had the right to be where he was when he observed the drugs. This finding, in turn, was based upon the judge's assessment that Mercano was a credible witness who had acknowledged that "he wasn't sure where and when he made those observations." Because Mercano could not state with certainty that his entire body remained outside defendant's vehicle at all times prior to observing the drugs, the judge concluded the State had failed to meet its burden of proof.

As the State recognizes, we will defer to a trial judge's findings unless "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Here, the judge's findings supporting his decision to grant defendant's motion to suppress were based entirely on Mercano's testimony. As the judge noted, Mercano could have testified that he never inserted any part of his body into the vehicle. In fact, at one point Mercano stated just that. Upon further questioning, however, it was clear that Mercano was not certain that was accurate. This led the judge to note Mercano's "candor" that, in turn, bolstered his credibility.

We are satisfied that the judge did not err as a matter of law in granting the motion to suppress, as the State contends. The judge correctly stated the legal parameters of the plain view exception to the warrant requirement; his factual findings, to which we defer, led him to conclude that the State had failed to meet its burden of proof.

Affirmed.

1 We granted the State's motion for leave to appeal on February 23, 2011. M-003168-10.