STATE OF NEW JERSEY v. CARL D. WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5610-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL D. WILLIAMS, a/k/a

CARL WILLIAMS, a/k/a

CARL DWIGHT ABRAHAM WILLIAMS,

Defendant-Appellant.

________________________________

April 4, 2014

Submitted March 18, 2014 Decided

Before Judges Hayden and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-08-008921.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, 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

After his suppression motion was denied, defendant pled guilty, pursuant to a plea agreement, to one count in a fifteen count indictment against him, namely count five, third-degree theft by deception, N.J.S.A. 2C:20-4. In return for defendant's agreement to plead guilty to that count, the State agreed to dismiss the remaining fourteen counts, all of which charged various third- and fourth-degree property offenses against multiple victims, and to recommend a sentence of four years imprisonment. The judge imposed the recommended sentence.

Defendant now appeals, arguing:

POINT ONE

THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED AS A RESULT OF A WARRANTLESS SEARCH, BECAUSE THE ITEMS TAKEN FROM THE FRONT SEAT OF DEFENDANT'S AUTOMOBILE WERE SEIZED PURSUANT TO AN ILLEGAL WARRANTLESS SEARCH, AND THE WARRANT OBTAINED THEREAFTER WAS THE "FRUIT" OF THAT ILLEGAL SEARCH, CONTRARY TO THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT TWO

DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION, REQUIRING HIS SENTENCE BE VACATED AND THE CASE RETURNED TO THE TRIAL COURT FOR A NEW SENTENCE HEARING.

We reject defendant's arguments and affirm.

At the suppression hearing, the State produced the testimony of Linden Police Officer Gary Hickman, and defendant produced the testimony of retired Linden Detective Mark Casey. Their testimony established the following relevant facts.

On the afternoon of April 18, 2010, a Linden police dispatcher radioed that there was a theft in progress at the local Wal-Mart store, a Wal-Mart security officer engaged in a foot pursuit of the suspect in the parking lot, and the suspect fled in a vehicle. The dispatcher advised that the suspect had attempted to use a stolen gift card or credit card to purchase merchandise. The dispatcher also gave a description of the suspect and his vehicle, a red Jaguar with Virginia license plates (specifying the license plate number), and advised of the direction in which it proceeded.

Officer James Carter was on patrol in his marked vehicle. He spotted the described vehicle, which defendant was driving, and pulled him over. Defendant refused to comply with Carter's commands directing him to get out of the car. Accordingly, Carter deemed this a high-risk stop and requested backup. Hickman was in the area and arrived promptly.

Both officers were now out of their patrol vehicles and had their guns drawn, continuing to demand that defendant get out of the car. Defendant was lying across the front seat, looking up periodically. Finally, defendant opened the driver's side door, got out of the vehicle, and laid on the ground, leaving the car door open. The officers handcuffed him. Looking into the car through the open door, they saw in plain view sixteen gift or credit cards strewn about the front seat and driver's side floor. Some of the cards were bent in half, and some had black markings covering the dollar amounts. Carter seized those sixteen cards. A search of defendant's person, incidental to his arrest, yielded two additional credit cards and some receipts.

Other officers also responded to the scene. One of them brought the Wal-Mart security officer, who identified defendant as the person he saw in the store and chased in the parking lot.

The police impounded defendant's vehicle. The next day Casey provided sworn testimony to a judge in making application for a warrant to search the vehicle. The judge granted the application and the warrant was issued. A search of the vehicle revealed the presence of two X-Box devices in the trunk purchased from a Target store in Linden on April 18, 2010, a short time before the incident at Wal-Mart. There were also corresponding receipts for those items. They were valued at $641.98, and they constitute the subject matter of the fifth count of the indictment, to which defendant pled guilty. Defendant had purchased them using stolen gift cards.

Judge Peim found both witnesses credible. Although cross-examination of Casey revealed that his testimony in support of the search warrant had included a minor factual inaccuracy, the judge found that the inaccuracy was inadvertent and inconsequential. On appeal, defendant does not dispute that finding.

Based upon those facts, the State argued that the warrantless seizure of the items from the front seat and floor area of the car was valid under the plain view doctrine. The State further argued that the search of the trunk was conducted pursuant to a validly issued warrant, thus rendering the seizure of the contraband found in that search lawful.

Defendant argued that the requirements of the plain view doctrine were not satisfied. First, defendant argued there was no exigency that justified the immediate seizure of the items in plain view. More importantly, he argued that it was not readily apparent to the officers that the items they observed in plain view were associated with criminal activity because Hickman testified that, upon looking at the cards strewn about the car, he could not say whether any of them was the card defendant attempted to use at the Wal-Mart store or whether any or all of them were in fact stolen or not. Defendant further argued that the search warrant was invalid as the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

In a thorough and well-reasoned oral opinion, Judge Peim rejected these arguments. The judge outlined and applied the controlling legal principles to the facts he found, which were amply supported by the suppression motion record, and he reached the correct result. We affirm the denial of the suppression motion substantially for the reasons expressed in Judge Peim's June 24, 2011 oral opinion. We add these brief comments with regard to the suppression issues.

The plain view doctrine authorizes police officers to seize without a warrant items coming into their sight if the following three conditions are met:

First, the police officer must be lawfully in the viewing area.

Second, the officer has to discover the evidence "inadvertently," meaning that he did not know in advance where evidence was located or intend beforehand to seize it.

Third, it has to be "immediately apparent" to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.

[State v. Mann, 203 N.J. 328, 341 (2010) (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983) (citations omitted), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).]

To satisfy the third prong, the police officer "must have probable cause to associate the [item] with criminal activity." Ibid. (quoting Bruzzese, supra, 94 N.J. at 237). Courts must assess what the "police officer reasonably knew at the time of the seizure," and whether the information available to the officer at that time was sufficient to "warrant a [person] of reasonable caution in the belief that certain items may be contraband, or stolen property or useful as evidence of a crime." Bruzzese, supra, 94 N.J. at 237 (emphasis added) (citation and internal quotation marks omitted). The belief does not have to be "correct or more likely true than false." Ibid. (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502, 514 (1983)). Thus, examination must be made of the totality of the circumstances in order to assess whether a reasonable police officer in those circumstances and with that knowledge would be led to the belief that the items "may be" associated with unlawful activity.

Defendant does not dispute that the first two prongs of the plain view doctrine were satisfied. As to the third prong, we have no hesitancy in concluding that it too was satisfied.

When the officers observed the cards in the interior compartment of the car, they knew that defendant had been attempting to make purchases with stolen credit or gift cards. They knew he fled and then resisted the officers' commands before finally getting out of the car. In doing so, he was acting in a suspicious manner inside the car and apparently attempting to hide the cards. They knew it is not a common practice for individuals to have multiple gift or credit cards strewn about in a car in the manner they observed. Further suspicion was supplied by the fact that some of the cards were bent in half and some had the dollar amounts blacked out. The officers therefore possessed a reasonable belief that the cards they observed were associated with the criminal activity for which defendant had been pursued and apprehended. Accordingly, all three prongs of the plain view doctrine were satisfied, and the items were properly seized without a warrant.

The search warrant application provided ample probable cause to support the issuance of a search warrant for the remainder of the vehicle. The application included information regarding the warrantless seizure of the items observed in plain view. Because we have concluded that those items were properly seized, the search warrant application was not tainted by that information. Therefore, defendant's fruit of the poisonous tree argument cannot prevail.

We now address defendant's excessive sentence argument. We find no impropriety in the mid-range four-year sentence imposed. The judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record, the judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and the sentence is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393-94 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.