STATE OF NEW JERSEY v. SEAN FOREHAND, a/k/a SEAN WILLIAMS STAR, SEAN STAR, JAMES K. FOREHAND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4990-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN FOREHAND, a/k/a SEAN WILLIAMS,

STAR, SEAN STAR, JAMES K. FOREHAND,

Defendant-Appellant.

__________________________________________

March 31, 2011

Submitted September 29, 2010 Decided

Before Judges R. B. Coleman and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 07-05-1112, 06-06-1397 and 06-01-0063.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

LuisA. Valentin, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, defendant Sean Forehand challenges the denial of his motion to suppress evidence following which he entered pleas of guilty to certain charges contained in three separate indictments, in exchange for the State's recommendation of the dismissal of certain remaining counts and a sentence for no more than five years in prison with a three-year period of parole ineligibility. We reject defendant's challenge to the denial of his motion and affirm.

On January 11, 2006, a Monmouth County Grand Jury returned Indictment Number 06-01-0063, charging defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of CDS on or within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7 (count three); third-degree attempted distribution of CDS, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:35-5b(3) (count four); and third-degree attempted distribution of CDS on or within 1000 feet of school property, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:35-7 (count five).

On June 28, 2006, a Monmouth County Grand Jury returned Indictment Number 06-06-1397, charging defendant with fourth-degree contempt, N.J.S.A. 2C:29-9b (counts one and four); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (count three).

On May 9, 2007, a Monmouth County Grand jury returned Indictment Number 07-05-1112, charging defendant with third- degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count one); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count two); fourth-degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5d (count three); second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1) (count four); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7a(1) (count five). Tykeyia N. Jackson was similarly charged in counts one, two, and three of this indictment.

On July 12, 2007, a hearing was held before Judge Paul F. Chaiet, on defendant's motion to suppress evidence seized without a search warrant in connection with Indictment Number 07-05-1112. The sole witness at the hearing on the motion was Patrolman Kevin Redmond of the Ocean Township Police Department. During the motion, the court also viewed the mobile video recorder videotape which had a "sound malfunction." Based on the evidence considered, Judge Chaiet denied the suppression in part and granted it in part.

Thereafter, defendant entered into the plea agreement with the State which he now contests. He agreed to enter a plea of guilty to count three of Indictment No. 06-01-0063, N.J.S.A. 2C:35-10a(1), third-degree possession of a CDS on or within 1000 feet of school property with intent to distribute; count two of Indictment No. 07-05-1112, N.J.S.A. 2C:39-5b, third-degree possession of a weapon for an unlawful purpose; and count one of Indictment No. 06-06-1397, N.J.S.A. 2C:39-7a(1), fourth-degree contempt. On November 30, 2007, defendant appeared before Judge Edward M. Neafsey for sentencing, and was sentenced in accordance with the plea agreement to imprisonment for a five-year term with three years parole ineligibility on count three of Indictment Number 06-01-0063, nine months on count one of Indictment Number 06-06-1397, and four years on count two of Indictment Number 07-05-1112. All prison sentences were ordered to run concurrent and all other counts of the several indictments were dismissed. Judge Neafsey imposed applicable mandatory fines and penalties. On appeal, defendant's sole contention is that the motion judge erred in denying his motion to suppress.

I.

These are the facts developed at the hearing on the motion to suppress. At approximately 2:30 a.m. on May 3, 2006, Patrolman Kevin Redmond of the Ocean Township Police Department was on patrol on Norwood Avenue. At that time, Redmond observed a white Nissan Maxima traveling southbound with a rear "license plate light out," a violation of the New Jersey Motor Vehicle Code. Based on that observed violation, Redmond conducted a motor vehicle stop and approached the driver's side of the vehicle. There were two occupants in the vehicle, a male driver, eventually identified as defendant, and a female passenger, later identified as Tykeyia Jackson. Defendant had binoculars hanging from his neck. Jackson had grocery bags and a digital camera on her lap. After Redmond asked defendant for his driver's license, registration and insurance documents for the vehicle, defendant replied that he did not have a license and that he could not produce the vehicle's documents because he borrowed the car from a friend and did not know where the registration and insurance card were located. Redmond also asked Jackson for her license; she said she did not have a valid license.

Defendant initially identified himself to Redmond as James K. Forehand, and gave his address and birth date. Redmond returned to his patrol vehicle and called headquarters to run a check of the information he had been given. Redmond also ran a check of the same information in his patrol vehicle. At this point, Patrolman Timothy Maycon of the Ocean Township Police Department arrived at the location of the stop as backup. With backup present, Redmond asked defendant to exit the vehicle and stand behind it. From the computer check, Redmond learned that James Forehand had a "NYC" tattoo on his left arm. Defendant did not have this tattoo, but instead he had a tattoo of the Grim Reaper on his arm. Police dispatch subsequently informed Redmond that outstanding summonses had been issued to a driver of the same vehicle he had stopped. That driver, Sean Forehand, was described as having a Grim Reaper tattoo. Redmond concluded defendant had given his brother's name when he was asked to identify himself.

From his inquiries, Redmond also learned that the registered owner of the Maxima was Samonta Richards and that defendant had open warrants for his arrest. Redmond arrested, handcuffed and searched defendant incident to the arrest. In the pockets of defendant's jacket, Redmond located marijuana and two packets containing a substance he suspected was cocaine. By this time, Patrolman Thomas Thompson arrived at the scene of the stop.

Redmond then approached the passenger side of the vehicle to speak with Jackson. Using a flashlight to illuminate the interior of the vehicle, Redmond leaned down to speak with Jackson and saw what appeared to be the barrel of a "Glock" protruding three to four inches from underneath the right side of the passenger seat of the vehicle. The gun was later determined to be a BB gun. Jackson was removed from the vehicle and placed under arrest.

During the suppression hearing, the videotape of the stop was played for the court. Although it was not clear from a review of the videotape who opened the passenger door, the judge commented that "under the circumstances it's more likely that the officer opened the door . . . [but] at some point [Jackson] was going to have to get out of that car."

During the stop, Niasia Davis, who identified herself as defendant's girlfriend, arrived at the scene and informed Patrolman Thompson and Sergeant Wayne Stewart, another backup officer, that she wanted to take possession of the vehicle. Davis was not the registered owner of the vehicle and was unable to provide the appropriate documentation for the vehicle when asked by the officers. Accordingly, the officers refused to release the vehicle to her.

Officers Redmond and Maycon performed a search of the vehicle, eventually locating three knives in the glove compartment; a case for the binoculars; a scope for the gun in one of the grocery bags that had been on Jackson's lap; and a digital camera. Defendant and Jackson were transported to police headquarters and Patrolman Maycon "t[ook] the car from the site on Norwood Avenue back to the Ocean Township PD sally-port." During an inventory search of the vehicle, officers located two bags of crack-cocaine in a fuse box by the driver's side door.

II.

The court found that the BB gun located under the passenger's seat and the knives and other items located in the glove compartment and in the bags on the passenger seat were properly seized. As to those items, the court denied the motion to suppress. However, the court granted the motion to exclude the drugs located in the vehicle's fuse box during an inventory search, reasoning that the inventory search did not require police officers to go under the car where a fuse box is located. All other fruits of the search were sustained.

Elaborating further on his ruling, Judge Chaiet made the following observations as to the plain view justification for the seizure of the BB gun and the subsequent search of the vehicle.

I looked at the officer. He was outside the car at that particular time. He leaned down all right, shining the flashlight.

[Jackson] was going to be removed from the car. Asked to be removed from the car. I think certainly at this particular point they've now found drugs on the Defendant Forehand.

They certainly have a right to be cautious when they go over and approach your client and perhaps even suspicious but I don't see a search at that particular point in the sense that he was outside that car, wasn't in the car.

His head might have by a fraction, have been inside the opening of the door to a little bit but he was still outside the car with a flashlight.

And I think he had a right to be in that position and ask her to get out of the car. And as the officer indicated, he was leaning down, not to search or look but to talk to her at that particular time.

And when he did that, you could see actually the quick reaction when he saw the gun at that particular point.

So I'm satisfied it was plain view. That it was inadvertent discovery of that particular weapon from where he had a right to be at that particular time and obviously it was contraband.

The court further validated the warrantless search of the Maxima and denied suppression of the gun and knives, finding that:

[W]hen [the patrolmen] saw that gun and in that particular car when they found drugs on the person of the defendant, I think they had probable cause at that particular point to search the car, and the question is whether they were exigent circumstances.

Again, it's 2:30 in the morning. They have no registered owner of that particular vehicle and aside from that, at this particular point, we now are dealing with a gun and when you're dealing with a gun that creates a whole different type of situation.

So I think the police would have been derelict at that particular point if they didn't search the vehicle to see if there were any weapons, etcetera in that particular vehicle.

Defendant appeals from these rulings, arguing under a single point heading that "the warrantless search of the Maxima was not justified under any exception to the warrant requirement." More specifically, defendant contends that the plain view doctrine, see, e.g., State v. Bruzzese, 94 N.J. 210, 235-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), which would legitimize the police conduct in seizing the gun, is inapplicable because Patrolman Redmond leaned down into the car with his flashlight and did not inadvertently discover the evidence. Additionally, defendant claims that there were no exigent circumstances to justify entry into the automobile without a warrant after defendant was arrested for the motor vehicle violation and outstanding warrants. See State v. Pena-Flores, 198 N.J. 6 (2009); State v. Pierce, 136 N.J. 184 (1994).

III.

"In reviewing a motion to suppress, [an appellate court] '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. Mosner, 407 N.J. Super. 40, 59 (App. Div. 2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). See also State v. Robinson, 200 N.J. 1, 15 (2009). "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment . . . ." State v. Emery, 27 N.J. 348, 353 (1958). We reverse only when the determination is "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

We acknowledge that "an automobile search without a warrant [is permitted] only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement." Pena-Flores, supra, 198 N.J. at 11. Absent a warrant, a search or seizure "'is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement.'" State v. Moore, 181 N.J. 40, 44 (2004) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)).

"In general terms, [probable cause] 'means less than legal evidence necessary to convict though more than mere naked suspicion.'" State v. Sullivan, 169 N.J. 204, 210-11 (2001) (quoting State v. Mark, 46 N.J. 262, 271 (1966)). Moreover, probable cause exists if there is "a 'well grounded' suspicion that a crime has been or is being committed." State v. Waltz, 61 N.J. 83, 87 (1972) (quoting State v. Burnett, 42 N.J. 377, 387 (1964)). "Probable cause requires 'a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Demeter, 124 N.J. 374, 380-81 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)).

The plain view doctrine first requires the police officer to legally be in the viewing area. State v. Lane, 393 N.J. Super. 132, 144 (App. Div.), certif. denied, 192 N.J. 600 (2007) (citing Johnson, supra, 171 N.J. at 206). "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.'" Ibid. (quoting Bruzzese, supra, 95 N.J. at 236)). "[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 (quoting Texas v. Brown, 460 U.S. 730, 738, 103 S. Ct. 1535, 1541, 75 L. Ed. 2d 502, 511 (1983)).

All of these conditions were satisfied in this case. First, Redmond validly stopped the vehicle based upon an observation of a motor vehicle infraction. Defendant's lack of a valid driver's license, documentation and his fabrications concerning his identity supported Redmond's continued investigation of defendant and Jackson. See State v. Dickey, 152 N.J. 468, 478-80 (1998) ("If, during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances 'give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'") (quoting United States v. Johnson, 58 F.3d 356, 357-58 (8th Cir.), cert. denied, 516 U.S. 936, 116 S. Ct. 348, 137 L. Ed. 2d 245 (1995)).

Redmond's observation of the gun triggered the plain view exception to the warrant requirements, and his use of the flashlight did not transform his observations into an illegal search. Moreover, "[a] simple observation into the interior of an automobile by a police officer located outside the automobile is not a 'search' within the meaning of the Fourth Amendment." State v. Foley, 218 N.J. Super. 210, 215 (1987) (quoting Texas, supra, 460 U.S. at 739-40, 103 S. Ct. at 1541-42, 75 L. Ed. 2d at 511). Redmond testified that his observation of the gun stemmed from the unplanned motor vehicle stop during which he arrested defendant for outstanding warrants and approached the passenger side to speak with Jackson. Redmond went on to testify that "with a flashlight, I looked down, and I saw what appeared to be a gun barrel sticking out from under the seat." The motion judge found that testimony credible, and we are satisfied that the seizure of the gun was a valid seizure under the plain view.

Citing Pena-Flores, supra, 198 N.J. at 29, defendant argues that exigent circumstances are required for the police to conduct a warrantless search of an automobile. "[E]xigency above and beyond the mere mobility of the vehicle is required." Id. at 24. In this regard, "'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 State v. Alston, 88 N.J. 211, 234 (1981)). "[U]ntil the vehicle is seized by the police and removed from the scene, 'it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it.'" Ibid. Exigency will be found "when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." State v. Johnson, 193 N.J. 528, 553 (2008). "The question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence." Pena-Flores, supra, 198 N.J. at 11.

We are satisfied that Judge Chaiet appropriately found that exigent circumstances existed to validate the police seizure of evidence in the Maxima. Although there were ultimately four police officers present and defendant was in their custody, firearms and the special threat they pose to public safety warrants prompt action. See, e.g., State v. Wilson, 362 N.J. Super. 319, 335 (App. Div.) (permitting search of car for handgun even though "both suspects were in custody and the automobile under police control"), certif. denied, 178 N.J. 250 (2003). The presence of a weapon in a vehicle, regardless of whether defendant was 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).

A "search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden" is constitutionally permissible where "the police officer possesses a reasonable belief based on 'specific and articulable facts which taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.'" State v. Carter, 235 N.J. Super. 232, 238 (App. Div. 1989)(quoting Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201, 1220 (1983)).

During the course of the stop, defendant was found to be an unlicensed driver and to have lied to Patrolman Redmond about his identity. He was arrested on active warrants and he possessed CDS. These factors, combined with the observation of the weapon under the passenger's seat in the Maxima, created the exigent circumstances warranting the search of the passenger compartment of the vehicle. The arrival of a third party at the scene seeking to take control of the vehicle heightened the concern of the officers for the safety of the public.

Under all the circumstances, we conclude the warrantless search of the Maxima as well as the seizure of the gun and knives were permissible. Accordingly, suppression was properly denied.

A