STATE OF NEW JERSEY v. DURAN C. KEATON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DURAN C. KEATON, a/k/a

DURAN K. KEATON,

Defendant-Appellant.

______________________________

October 29, 2013

Submitted July 16, 2013 Decided

Before Judges Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-10-2323.

Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief).

Warren K. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After the court denied his suppression motion, defendant entered a plea of guilty to a single count accusation charging him with third-degree receiving stolen property, a firearm, N.J.S.A. 2C:20-7a. As part of the plea agreement, the State dismissed an indictment that charged defendant with second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b, and second-degree certain person not to possess a weapon, N.J.S.A. 2C:39-7b. In accord with the plea agreement, the court sentenced defendant to four years of non-custodial probation, and imposed mandatory fees and penalties.

Defendant now appeals from the denial of his motion to suppress the seizure of the firearm, a .32 caliber Smith and Wesson handgun. We reverse.

I.

The sole witness at the suppression hearing was New Jersey State Police Trooper William Jacobs. He testified that the firearm was seized in the course of his response to a motor vehicle accident on Interstate 295. When he arrived at the accident scene on March 22, 2009, he found an overturned Buick in the median. The vehicle was unoccupied. Defendant, the driver, was already receiving treatment from emergency medical personnel nearby. Defendant was on a stretcher and had cuts on his face, but Jacobs characterized defendant's injuries as "minor."

Jacobs testified that his mission in such circumstances, after assuring that injured persons were receiving appropriate treatment, was to clear the accident scene, restore normal traffic flow, and obtain the information he needed to prepare a report, including the driver's license, registration and insurance information. However, Jacobs did not request such information from defendant in the five minutes or so before he was transported in an ambulance. Jacobs explained he did not wish to interfere with defendant's treatment. Jacobs also did not recall seeking such information by reporting the vehicle tag number to dispatch. Nor did Jacobs delay obtaining the information until he could secure it from defendant in the hospital.

Instead, after defendant left by ambulance, Jacobs entered the overturned vehicle to locate and retrieve relevant documents. The windows were all down. Although he intended to search the glove compartment and center console, he entered the rear driver's side window. He explained he just happened to be standing there before deciding to enter the vehicle.

Jacobs said that various items were strewn on the interior ceiling of the overturned car, including a school bag or backpack, which was situated between the two rear doors. Jacobs testified, "[W]e kind of put our head in there to kind of squeeze in [and] try to get everything, and that's when I observed the black bag, school bag. . . . [I]t was unzipped and the . . . flat [sic]1 was over, so . . . I observed the gun at that point." Jacobs testified that the police removed the gun, and conducted a further search of the bag, finding defendant's personal identification, automobile insurance information, and pay stubs. Jacobs ultimately retrieved the registration from the glove box or center console he could not recall which of the two. Jacobs testified that a "dime bag" of marijuana was also found in the car near the dashboard.2

The trial judge found Jacobs to be a credible witness. He found that Jacobs was required to obtain license, registration and insurance information in order to investigate and complete a required accident report. He found "the defendant was removed from the scene very shortly after the officer arrived," however, the judge did not find that there was insufficient time to ask defendant to retrieve his documents, nor that defendant would have been physically unable, or unwilling to comply.

The court found that Jacobs crawled into the overturned vehicle to retrieve the registration and insurance, and he inadvertently saw the bag and the handgun "in plain view." The court therefore sustained the entry and seizure based on the plain view doctrine.

Defendant raises the following point on appeal:

BECAUSE THE LAW ENFORCEMENT OFFICER WAS NOT LEGALLY IN THE VIEWING AREA WHERE THE EVIDENCE AT ISSUE WAS DISCOVERED, THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT IS INAPPLICABLE AND THE EVIDENCE SHOULD BE SUPPRESSED (U.S. CONST., AMENDS. IV AND XIV; N.J. CONST. (1947), ARTICLE I, PAR. 7) (PARTIALLY RAISED BELOW).

II.

We defer to the trial court's factual findings on a motion to suppress. "[A]n 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. Robinson, 200 N.J.1, 15 (2009) (internal quotation marks and citations omitted); see also State v. Elders, 192 N.J.224, 243 (2007). We defer to the trial court's findings that are "substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Robinson, supra, 200 N.J.at 15 (internal quotation marks and citations omitted). We are "not permitted to weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Locurto, 157 N.J.463, 472 (1999) (internal quotation marks and citations omitted).

However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J.328, 337 (2010) (citation omitted). Thus, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).

Applying that standard of review, we discern substantial credible evidence in the record to support the trial judge's findings of fact. The issue is whether those findings were sufficient to justify Jacobs' warrantless entry into the vehicle, and his seizure of the gun. We conclude they were not.

A police officer may seize evidence in plain view without a warrant if the officer is "lawfully . . . in the viewing area," he discovers the evidence inadvertently, and it is immediately apparent the object viewed is "evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J.192, 206-07 (2002). Theplain view doctrine has been applied to observations of the contents of a stopped motor vehicle. Mann, supra, 203 N.J.at 340-41.

However, defendant argues that Jacobs was not lawfully in the viewing area. We agree.

Our Court has recognized the authority of police to conduct a limited warrantless search of a vehicle for proof of ownership and insurance. State v. Pena-Flores, 198 N.J.6, 31 (2009); State v. Patino, 83 N.J.1, 12 (1980); State v. Gammons, 59 N.J.451 (1971); State v. Boykins, 50 N.J.73, 77 (1967). The Court in Boykinsstated, "[I]f the operator is unable to provide proof of registration, the officer may search the car for evidence of ownership . . . ." Ibid.

However, the authority to conduct such searches is not unfettered. In Boykins, the defendants fled from the vehicle after the car was stopped, arousing suspicion that they were involved in criminal activity and the car probably contained contraband. Id.at 75. In a case that the Supreme Court affirmed largely on the basis of our opinion, we cautioned against over-extending Boykins, explaining that Boykinsapplied to a case where there was already probable cause to search or arrest. State v. Lark, 319 N.J. Super.618, 625-26 (App. Div. 1999), aff'd o.b., 163 N.J.294, 296 (2000); see alsoState v. Hill, 171 N.J. Super.390, 393-94 (App. Div. 1979) (suppressing the fruits of a search of a trunk, stating that Boykinsdoes not support the broad proposition that all parts of a car may be searched for a registration certificate that a driver cannot produce after a traffic stop).

In Lark, the defendant provided a valid registration for the vehicle, so there was no probable cause to believe the vehicle was stolen. The police entered the vehicle because defendant could not produce a valid driver's license, and his assertion that it was stolen during a recent mugging appeared to be a lie based on other information police obtained. Lark, supra, 319 N.J. Super.at 621-22. We held that the police could have detained the driver for further questioning to ascertain his identity, or arrested him for operating a vehicle without a license, but "[t]he officer may not . . . absent probable cause to believe that a further offense has been committed, enter the vehicle to look for identification." Id.at 627.

In affirming substantially for the reasons expressed in our court's opinion, the Supreme Court stated that while driving without a license would not generally constitute grounds for a custodial arrest, the police were authorized to take the defendant into custody if he persisted in concealing his identity and there was no other reasonable alternative. Lark, supra, 183 N.J.at 296. But, "the officer generally may not search the vehicle unless one of the existing exceptions to the warrant requirement is applicable." Id.at 297. The Court held that any inconvenience that the police experienced in identifying a driver did not justify eroding constitutional rights. Ibid.

Absent probable cause, police may conduct a warrantless search for documentation if the defendant is unable or unwilling to produce it. In Gammons, the Court adopted our court's reasoning reversing an order suppressing the fruits of a search for documentation a gun found in the glove compartment where the driver had been removed from the accident scene. We recognized the officer's obligation to file a written report and to examine the licenses and registrations involved. State v. Gammons, 113 N.J. Super. 434, 437 (App. Div. 1971) (citing N.J.S.A.39:4-131). However, the police did not immediately search the vehicle at the scene. Instead, they visited the defendant in the hospital; and only after the defendant was unable to produce registration during that visit, the police conducted a search for the documentation. Id.at 436. We stated, "When defendant could not produce his registration certificate at the hospital, [the officer] made the perfectly logical deduction that it might still be in the damaged car which the police had the right to search for evidence of ownership in view of defendant's failure to produce the certificate." Id.at 437 (citing Boykins, supra, 50 N.J.at 77).

We reached a different result in State v. Jones, 195 N.J. Super. 119, 121 (App. Div. 1984), suppressing the fruits of a documentation search, because the officer failed to provide the driver with the chance to retrieve the documents himself. Id.at 122-23. We held that a search for ownership documentation was limited to the "'glove compartment or other area where a registration might normally be kept in a vehicle.'" Id.at 122-23 (quoting State v. Patino, 81 N.J.1, 12 (1980)).

In Jones, the defendant suffered minor lacerations and abrasions that rescue squad personnel treated on the scene after his automobile overturned. An officer asked him to produce his documentation, and the defendant said it was in the car. Rather than ask defendant to retrieve it, the officer entered the vehicle after it was righted by a tow truck. Id.at 121.

Nothing remotely suggests that defendant would have been unable or unwilling to retrieve his registration and insurance card from the vehicle once it was restored to its upright position. Defendant simply was never afforded such opportunity. Since no reasonable opportunity was afforded defendant to retrieve the registration and insurance card, the State cannot now successfully argue that defendant failed to produce the registration and insurance card. We read Boykin and Patino as requiring a showing that defendant was either unable or unwilling to produce the registration and insurance card.

[Id. at 123.]

Most recently, the Supreme Court in Pena-Flores, supra, upheld the authority of police to conduct a warrantless search for identification where there was reason to question the defendant's ownership of the vehicle. 198 N.J.at 31. According to a lookup, the license plate on the stopped vehicle was associated with a different vehicle. The Court expressed approval of the principle that a search for registration information may be conducted where there is probable cause to question vehicle ownership, or the driver is unable or unwilling to provide it.

Clemens pulled Fuller over unexpectedly for a traffic violation. As a result of a lookup, Clemens determined that the license plate and the bill of sale did not correspond to Fuller's vehicle. Accordingly, he was entitled, separate and apart from the automobile exception, to look into the areas in the vehicle in which evidence of ownership might be expected to be found. State v. Boykins, 50 N.J. 73, 77 (1967) (citations omitted); State v. Jones, 195 N.J. Super. 119, 122-23 (App. Div. 1984) ("[W]here there has been a traffic violation and the operator of the motor vehicle is unable to produce proof of registration, a police officer may [conduct a] search [of] the car for evidence of ownership . . . . confined to the glove compartment or other area where a registration might normally be kept in a vehicle." (quotation marks and citation omitted)). See also United States v. Kelly, 267 F. Supp. 2d 5, 14 (D.D.C. 2003) ("[I]t is reasonable for [an] officer to conduct a limited search for the registration in those areas where they would likely be located."); 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 7.4(d) (4th ed. 2004) ("[I]t is reasonable for the police to make a limited search of a vehicle in an effort to determine ownership.").

[Id. at 31 (footnote omitted).]3

See alsoKevin G. Byrnes, New Jersey Arrest, Search & Seizure, 17:3-2(a) (2012-2013 ed.) (stating that under New Jersey cases, police "must give the driver reasonable opportunity to produce the requisite vehicle credentials" and may conduct a search "only if the driver has the opportunity and is either unwilling or unable" to produce them).

Applying these principles, we are compelled to reverse. We note at the outset that there was no probable cause to believe defendant's vehicle was stolen, or that he had committed any other crime justifying intrusion into the vehicle. Thus, this case stands apart from Boykinsand Pena-Flores. Instead, the State bore the burden to justify its search by demonstrating that defendant was unable or unwilling to produce documentation after being given the opportunity to do so. SeeState v. Pineiro, 181 N.J.13, 19-20 (2004) (assigning burden to State).

The State did not prove, nor did the court expressly find, that defendant was given the opportunity to produce the registration and license information and was unable or unwilling to do so. The trial judge found that defendant was removed from the scene soon after the trooper arrived. Yet, the court made no finding that the trooper could not question defendant during that time. The trooper testified that defendant apparently suffered minor injuries. Although he was removed by an ambulance, there was no evidence that he was incapable of responding to the officer's request. He stated he did not question defendant only because he did not want to slow things down.

Moreover, even if defendant were in no condition to crawl into the overturned vehicle, the police should nonetheless have given him an opportunity, on his own or with another's help, to retrieve the documentation for the police. There is no evidence to support any finding of exigency. The police could have sought the documentation from defendant at the hospital or after his release. This obviously would have caused some delay, but as the Court held in Lark, supra, inconvenience is an insufficient basis upon which to justify a warrantless search of defendant's vehicle. 319 N.J. Super.at 627.

Reversed and remanded for further proceedings consistent with this opinion.

1 We presume the witness said "flap."

2 Defendant also sought to suppress the seizure of the marijuana, which the court denied. However, defendant seeks only review of the order denying suppression of the firearm.

3 The Court suppressed the fruits of a broader search of the vehicle. Id. at 32-33.