STATE OF NEW JERSEY v. SHANTEAU BODY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02102-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANTEAU BODY, a/k/a

SHONTEAY M. BODY, a/k/a

SHONTAU BODY,

Defendant-Appellant.

____________________________________

October 15, 2014

Submitted September 9, 2014 Decided

Before Judges Haas and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-10-01092.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Shanteau Body (Body) appeals from the denial of his motion to suppress evidence seized in a warrantless search. Under the plain view exception to the warrant requirement, the trial court held the seizure of heroin found in the possession of Body after a legal traffic stop did not violate his Fourth Amendment rights. We affirm.

Body was indicted by a Union County Grand Jury on October 27, 2011, which charged him with third-degree possession of heroin contrary to N.J.S.A. 2C:35-10a(1) (Count One), third degree possession of heroin with intent to distribute contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (Count Two), and third-degree possession with intent to distribute heroin within one thousand feet of school property contrary to N.J.S.A. 2C:35-7 (Count Three).

Regarding the instant appeal, defendant filed a motion to suppress the evidence seized. After a hearing before the court, same was denied on June 15, 2012. On July 9, 2012, defendant plead guilty to count three, and on September 28, 2012, he was sentenced to five years imprisonment with three years of parole ineligibility. The remaining counts and a motor vehicle summons were dismissed. This appeal follows, raising the following point of law.

POINT I

THE TRIAL COURT ERRED IN FINDING THAT THE WARRANTLESS SEIZURE OF THE DRUGS WAS JUSTIFIED UNDER THE PLAIN VIEW EXCEPTION BECAUSE THE RECORD FAILED TO ESTABLISH THAT IT WAS IMMEDIATELY APPARENT THAT THE ZIP-LOC BAG CONTAINED CONTRABAND, AND THE COURT'S RULING WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE.

The testimony at the suppression hearing was as follows. Two police officers, both of the Street Crimes Unit, were riding with a detective from the Narcotics Unit conducting narcotics surveillance. The detective, who was driving the first of two police cars, saw a Corolla being driven by an individual he had previously arrested; defendant was a passenger in the front seat. As the Corolla drove past the unmarked police car, the driver took a sip from a can of Coors beer and passed it to the passenger who also took a sip. The police car made a U-turn and followed the Corolla.

Since the first police car had no flashing lights, the detective radioed the second police vehicle to stop the Corolla. Officer Garcia, Sgt. Kiley, and Officer Clancy were riding in that vehicle. They responded and used their lights and siren to pull over the Corolla.

After the Corolla was pulled over, Garcia, Kiley, and Clancy approached the vehicle; Garcia approached from the passenger side. Officer Garcia testified that when he approached, the vehicle window was down, "defendant was leaning towards the center console," and a clear zip-loc bag was protruding from defendant's right side pants pocket. Further, Garcia indicated he saw what he believed to be envelopes of heroin in the bag. He then opened the door of the Corolla, handcuffed Body, and removed the zip-loc bag which contained 110 glassine envelopes of heroin. A half empty can of Coors was also found in the Corolla.

There is no dispute over the applicable law in this case. In that respect, the United States and New Jersey Constitutions provide protection from unreasonable searches and seizures. Since this was a warrantless search, the State must prove by a preponderance of the evidence that the search was conducted legally. State v. Valencia, 93 N.J. 126, 133 (1983), State v. Kirk, 201 N.J. Super. 28, 51 (App. Div. 1985); State v. Whittington, 142 N.J. Super 45, 52 (App. Div. 1976).

One of the exceptions that makes a warrantless seizure of contraband legal is the plain view exception. Three elements are required to support a search under this exception: (1) the officer is legally in a position to view the item, (2) the discovery of the evidence is inadvertent, and (3) it must be apparent that the item was contraband. State v. Bruzzese, 94 N.J. 210, 236-37 (1983), cert. denied, 465 U.S. 1030 (1984).

Here, defendant does not contend the judge applied the wrong law, but instead argues that the findings were not based on credible evidence. Particularly, defendant points to a series of factors he believes undermined the credibility of the officers who testified at the suppression hearing. First, he argues the underlying stop was a narcotics investigation, and not a traffic stop. To this, he notes that six officers were not needed for a traffic stop. Second, defendant argues that it "is simply not possible" for the contraband to have been visible. Specifically, Body would not have "leaned across the center console of the Corolla so that Officer Garcia could get a good view of the contraband." Finally, defendant contends the heroin packets would have taken up only a quarter of the bag, and that portion would have been concealed in his pocket. Thus, according to defendant, the finding that the drugs were exposed is not credible. Defendant also points to other minor inconsistencies in the officers' testimony.

At the motion hearing, the judge listened to the testimony and found there was sufficient credible evidence to support the plain view exception. With respect to the first element, the court found the officer was in the viewing area for a lawful motor vehicle stop. Although he does not specifically say the officer was credible, he obviously found Garcia's testimony was believable. As for the second element, the trial judge found Garcia inadvertently observed the bag as he approached the vehicle protruding from Body's low-cut jeans. Finally, addressing the third element, the judge found that Garcia had probable cause to believe the visible yellow glassine envelopes in the protruding bag were of the type that contained narcotics. As the New Jersey Supreme Court held in State v. Brown, 216 N.J. 508, 538 (2014), an appellate court "cannot substitute its own findings merely because it would have drawn different inferences from the evidence." Deference must be given to the judge who heard the testimony of the officers and considered all the arguments raised in the appeal. Here, the judge found there was credible evidence based on the officers' testimony to support the State's position that this search fell under the plain view exception. Thus, the warrantless search was justified. We find no reason not to accept the trial judge's evaluation of the credibility of the evidence.

We affirm.