STATE OF NEW JERSEY v. SEAN EDWARDS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

SEAN EDWARDS a/k/a EDWARDS

SEAN CARL,

Defendant-Appellant.

_______________________________

November 14, 2013

Submitted October 30, 2013 Decided

Before Judges Fuentes, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-06-0960.

Cobos, Ellington, Maduabum & McKenzie, LLC, attorneys for appellant (Michael L. Ellington, II, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After the trial court denied his motion to suppress evidence, defendant Sean Edwards pled guilty to third-degree attempt to endanger the welfare of a child, N.J.S.A. 2C:24-4a and N.J.S.A. 2C:5-1. In accordance with the negotiated plea, the judge sentenced defendant to parole supervision for life. Appropriate fines and penalties were also assessed. We affirm.

Judge Bradley Ferencz conducted a four-day suppression hearing; listened to testimony from three police officers, Erwin Enriquez, Sean Meade, and John Canavera, and two lay witnesses, Jacob Grieff and Marta Edwards; and then denied defendant's motion. We discern the following facts from the testimony adduced at the hearing.

At approximately 2:30 p.m. on June 30, 2010, the Edison Township Police Department received a 9-1-1 call from a parent, who reported that a man had attempted to lure her fourteen-year old daughter into a van on Whitman Avenue. The parent described the man as "a Hispanic male with a scruffy beard in a light blue van." Officer Enriquez responded to the emergency call. When he arrived, he spoke to the parent and the child, who "pointed out a blue van" in a parking lot outside of a business. Officer Enriquez pulled his patrol car behind the van and approached it on foot. The driver, who was later identified as defendant, had a GPS device in his hand and did not immediately notice the officer. Officer Enriquez asked defendant what he was doing and defendant "stated he was lost." The officer asked for identification and defendant provided it.

A few minutes later, Officer Meade arrived at the scene. He noticed there were four or five individuals standing within twenty feet of the van. Officer Enriquez gave Officer Meade defendant's credentials and the two officers then walked back to the van. Defendant "asked why he was stopped," and Officer Meade told him that the child had alleged he had attempted to get her to "climb inside" the van. Defendant denied being involved in the incident.

Officer Meade asked defendant to get out of the van because "[i]t's easier . . . to speak to him face-to-face rather than him up in the van and me on the ground." As defendant opened the van door to comply, Officer Meade observed "a light green . . . Tiffany's bag" on the floor of the van near defendant's feet. The officer also "saw sticking out of the open Tiffany's bag a little part of a pink pill." Based upon his training, Officer Meade believed the pill to be ecstasy, a controlled dangerous substance (CDS).

After defendant got out of the van, Officer Meade noticed "a large bulge" in defendant's front pocket. The officer patted defendant down for weapons. The bulge was money defendant had put in his pocket. No weapons were found. Defendant was handcuffed and placed in a patrol car. However, Officer Meade testified defendant was not under arrest at that point.1

By that time, Officer Aldahondo had arrived at the scene. Officer Enriquez stayed with defendant and Officer Meade and Officer Aldahondo returned to the van to retrieve the CDS. Officer Meade removed the Tiffany's bag. Under the bag, he found two condoms, which he also took from the van. The bag contained two pink heart-shaped pills and one blue star-shaped pill and a small ring.

Officer Meade walked back to the patrol car and asked defendant about the items. Defendant stated the condoms belonged to his son and that he was holding the pills for a friend. Officer Meade asked defendant to get out of the car and placed him formally under arrest for possessing CDS. Officer Meade searched defendant and found $1432 in his pockets. At some point, Officer Meade removed a computer bag from the van and placed it in his patrol car. The officer explained he did so because "[t]he van was open and there were so many people around, there were people from the businesses that were there. I wanted to ensure that the bag was secure."

In response to a request by Officer Aldahondo, defendant consented to a search of the van. Officer Aldahondo explained defendant's rights to him and defendant signed a standard consent to search form. After defendant consented to the search, Officer Aldahondo looked inside the computer bag and found condoms, lubricants, a computer printout depicting young girls labeled "Russian Teen Obsession One," "a big picture of a female from the rear," a picture of defendant with "a young boy," "a Polish dictionary," a computer, and $19,100 in cash inside an envelope. The back of the van was filled with air conditioning units, blankets, pillows, rolls of tape, and rope.

Officer Meade had another brief conversation with defendant in which he asked him about his prior criminal history, the reasons for the initial stop, and the CDS found in the van. The police then took defendant to the police station.

Later that day at the station, Detective Canavera interviewed the child, who stated defendant pulled up in his van and yelled at her to get inside. She refused and crossed the street. As she did so, defendant "yelled out the window to her, what are you Polish?" The child called her mother, who came to the scene and called 9-1-1.

After speaking with the child, the detective conducted a taped interview of defendant. The detective read defendant his Miranda2 rights and he agreed to speak. Following the interview, defendant was charged with luring.

Jacob Grieff and Marta Edwards testified on defendant's behalf. Grieff worked at a business on Whitman Avenue and stated that defendant regularly made deliveries at the business and had done so on June 30, 2010. After defendant left the building, Grieff looked outside and saw defendant's van "surrounded by police officers." Grieff tried to step outside, but was told by an officer "to go back inside or I'd be arrested." He did not see any "civilians" in the area of the van. Finally, defendant's wife Marta testified that the ring in the Tiffany's bag belonged to her and that she was the woman in the photograph found in the computer bag.

In a comprehensive oral decision issued on December 21, 2011, Judge Ferencz denied defendant's motion to suppress. The judge found the testimony of the police officers to be credible in all respects and that they had a reasonable basis for stopping defendant and investigating the parent's claims. The judge found that the police properly seized the CDS because it was in plain view and that defendant subsequently consented to the search of the van which justified the seizure of the other items, including the contents of the computer bag. The judge also found that all of the statements made by defendant, both at the scene and later during his interview with Detective Canavera, were made voluntarily. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE.

A. THE POLICE OFFICER'S WARRANTLESS SEARCH RESULTED IN AN UNLAWFUL VIEW OF THE INSIDE OF THE VEHICLE.

B. THE POLICE OFFICER'S DISCOVERY OF EVIDENCE WAS NOT "INADVERTENT."

C. INCRIMINATING CHARACTER WAS NOT IMMEDIATELY APPARENT.

D. EXIGENT CIRCUMSTANCES DID NOT EXIST.

POINT II

THE DEFENDANT'S CONSENT TO SEARCH WAS INVOLUNTARY.

POINT III

THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS.

A. ALL STATEMENTS MADE BY THE DEFENDANT PRIOR TO THE VIDEOTAPED STATEMENTS SHOULD BE SUPPRESSED BECAUSE THE STATEMENTS WERE MADE DURING A CUSTODIAL INTERROGATION WITHOUT THE BENEFIT OF RECEIVING MIRANDA WARNINGS.

B. THE VIDEOTAPED CUSTODIAL INTERROGATION CONDUCTED AT THE EDISON POLICE DEPARTMENT SHOULD BE SUPPRESSED BECAUSE IT WAS THE PRODUCT OF "QUESTIONS FIRST, WARN LATER" INTERROGATION TECHNIQUE WHICH DEPRIVED THE DEFENDANT OF HIS RIGHTS AGAINST SELF-INCRIMINATION.

1. Extent of Questioning and the Nature of any Admissions Prior to Miranda Warnings.

2. Proximity in Time and Place between the Pre- and Post- Warning Questions.

3. Whether the Same Law Enforcement Officers conducted both unwarned and warned Interrogations.

4. Did Officers Advise Defendant that his Pre-Warning Statements could not be Used Against Him.

5. The Degree to which the Post-Warning Questioning is a Continuation of the Pre-Warning Questioning.

We reject these contentions and affirm, substantially for the reasons set forth by Judge Ferencz in his thorough oral opinion. We add the following comments.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J.1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we defer to a trial judge's findings that are "'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting Robinson, supra, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid.

The police may, without a warrant, temporarily detain a person if they have a reasonable and articulable suspicion that the person is engaged in unlawful activity. State v. Elders, 192 N.J. 224, 247 (2007). Similarly, the police may stop a motor vehicle based on a "reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). The State bears the burden of establishing by a preponderance of the evidence that it possessed sufficient information to give rise to a reasonable and articulable suspicion. Ibid.

Here, the parent reported to 9-1-1 that a man driving a blue van on Whitman Avenue had tried to get her daughter to get in the vehicle. When Officer Enriquez arrived, the parent and her child pointed out defendant's van in the parking lot. Our Supreme Court has noted that an ordinary citizen reporting crime to the police is not viewed with suspicion, and courts assume that a further demonstration of reliability is not necessary to justify a stop and frisk of the person identified in the citizen's report. Id. at 212-13; State v. Stovall, 170 N.J. 346, 362 (2002). Under these circumstances, the officer clearly had a reasonable basis for detaining defendant so that the parent's report could be investigated.

Officer Meade was also justified in asking defendant to step out of the van. State v. Pena-Flores, 198 N.J. 6, 31 n.7 (2009) (describing right of officer to remove driver from lawfully stopped vehicle as "established precedent"). Once defendant was out of the van, Officer Meade noticed the pill sticking out of the Tiffany's bag. Based upon his experience, he believed the pill was ecstasy, a CDS. Because the officer was lawfully present in the viewing area, inadvertently discovered the pill in plain view, and it was "immediately apparent" to the officer that the "item[] in plain view [was] evidence of a crime, contraband, or otherwise subject to seizure[,]" Officer Meade properly seized the bag. State v. Johnson, 171 N.J. 192, 206-07 (2002); see also State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). For these same reasons, the condoms that Officer Meade found under the bag when he removed it were properly seized as evidence of the crime of luring a child. Officer Meade was justified in frisking defendant when he exited the van and, after the CDS was found and defendant was arrested, he also had the right to search defendant incident to that arrest. State v. Eckel, 185 N.J. 523, 530 (2006).

Because the police had a reasonable and articulable suspicion that defendant had committed a drug offense and an offense relating to the child while in the van, it was appropriate for Officer Aldahondo to ask defendant if he would consent to a search of the vehicle. See State v. Carty, 170 N.J. 632, 647, modified on other grounds, 174 N.J. 351 (2002). There is nothing in the record to indicate that defendant's consent to the search was involuntary in any way. Although Officer Meade took the computer bag out of the van before defendant's consent to search was obtained, the record supports the judge's finding that the bag was removed to safeguard it and that Officer Aldahondo did not search the bag until after defendant's consent was obtained. Thus, there is no basis for disturbing the judge's decision to deny defendant's motion to suppress the items seized during the search of the van, his person, or the computer bag.

Defendant also challenges the judge's decision to deny his motion to suppress the statements he made to the police at the scene and later at the police station. However, after defendant's motion to suppress these statements was denied, defendant entered into a written plea agreement with the State. Rule 3:9-3(f) authorizes a defendant to "enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion." Here, defendant's written plea agreement only reserved his right to appeal a pre-trial discovery order requiring that he provide the State with a transcript. Defendant did not make his plea conditional on his right to appeal the denial of his Miranda motion.

"'Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.'" State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997)).3 In Knight, the Supreme Court held that "[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Supra, 183 N.J. at 470 (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)). We therefore conclude that, because defendant entered an unconditional guilty plea, he waived his right to contest the admissibility of his statements.

In any event, defendant's contentions on this point, even if they were not waived, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We discern no basis for disturbing Judge Ferencz's finding that all of the statements defendant made were voluntary.

1 Officer Meade's characterization of defendant as not "under arrest" at this point is at best disingenuous. Once an individual has been handcuffed and placed inside a presumably locked compartment of a police car, he is clearly not at liberty to go anywhere. By any rational definition, defendant was at this point in time de facto under arrest. As our colleague Judge Grall poignantly noted in State v. Smith: "The question is whether a reasonable person, considering the objective circumstances, would understand the situation as a de facto arrest or would recognize that after brief questioning he or she would be free to leave." 374 N.J. Super. 425, 432 (App. Div. 2005).

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

3 However, a defendant may always appeal the denial of a motion to suppress evidence on the grounds of unlawful search and seizure. Knight, supra, 183 N.J. at 471; R. 3:5-7(d).